Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Pennsylvania: Determination of Attainment of Ozone Standard by the Pittsburgh-Beaver Valley and Reading Ozone Nonattainment Areas and Determination Regarding Applicability of Certain Reasonable Further Progress and Attainment Demonstration Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA63-1-7124; FRL-5259-6]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Pennsylvania: Determination of Attainment of Ozone

Standard by the Pittsburgh-Beaver Valley and Reading Ozone

Nonattainment Areas and Determination Regarding Applicability of

Certain Reasonable Further Progress and Attainment Demonstration

Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA has determined that the Pittsburgh-Beaver Valley and

Reading ozone nonattainment areas have attained the National Ambient

Air Quality standard (NAAQS) for ozone. This determination is based

upon three years of ambient air monitoring data for the years 1992-94

that demonstrate that the ozone NAAQS has been attained in these areas.

On the basis of this determination, EPA is also determining that

certain reasonable further progress (RFP) and attainment demonstration

requirements, along with certain other related requirements, of Part D

of Title I of the Clean Air Act (CAA) are not applicable to these areas

as long as these areas continue to attain the ozone NAAQS.

EFFECTIVE DATE: July 19, 1995.

[[Page 37016]]

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.

FOR FURTHER INFORMATION CONTACT: Kathleen Henry, (215) 597-0545.

SUPPLEMENTARY INFORMATION: EPA published a Notice of Direct Final

Rulemaking (DFR) on May 26, 1995 (60 FR 27893). In that rulemaking, EPA

determined that the Pittsburgh-Beaver Valley and Reading ozone

nonattainment areas have attained the ozone standard and that the

requirements of section 182(b)(1) concerning the submission of a 15%

RFP plan and ozone attainment demonstration and the requirements of

section 172(c)(9) concerning contingency measures are not applicable to

these areas so long as the areas do not violate the ozone standard. In

addition, EPA determined that the sanctions clocks started on January

18, 1994, for these areas for failure to submit the RFP requirements

would be stopped since the deficiency on which they are based no longer

exists.

At the same time that EPA published the direct final rule, a

separate notice of proposed rulemaking (NPR) was published in the

Federal Register (60 FR 27945) in the event that adverse or critical

comments were filed which would require EPA to withdraw the direct

final rule. EPA received adverse comments within 30 days of publication

of the proposed rule and withdrew the direct final rule on June 13,

1995 (60 FR 31081).

The specific rationale and air quality analysis EPA used to

determine that the Pittsburgh-Beaver Valley and Reading ozone

nonattainment areas have attained the NAAQS for ozone and are not

required to submit SIP revisions for RFP, attainment demonstration and

related requirements are explained in the DFR and will not be restated

here.

Response to Public Comment

Two letters were received supporting EPA's proposed action, and one

adverse comment letter was received on the DFR. Following are the

relevant comments that were submitted followed by EPA's response.

Comment #1 The Clean Air Council (CAC) commented that EPA's action

disregards the requirements of section 107(d)(3)(E) of the Clean Air

Act (CAA), which govern redesignations to attainment. According to the

commenter, the EPA's action indicates that the Agency intends to allow

nonattainment areas to be redesignated to attainment, regardless of air

quality or legal requirements. The commenter argued that EPA's action

essentially eliminates the requirement of section 107(d)(3)(E)(v),

which is that, for an area to be redesignated to attainment, the State

must have met all requirements applicable to the area under section 110

and part D of Title I of the CAA.

Response #1 The action proposed by EPA and finalized with this

notice is not a redesignation and does not eliminate the requirements

of section 107(d)(3)(E), which EPA believes must be met in order for

areas, including Pittsburgh and Reading, to be redesignated to

attainment. In sum, the action being taken with this notice does not

relax the requirements applicable to the evaluation of the

redesignation requests submitted for Pittsburgh and Reading on November

13, 1993.

The action being taken by EPA is a determination that the relevant

areas have attained the ozone NAAQS and, on the basis of that

determination, that certain reasonable further progress and attainment

demonstration requirements, along with certain other related

requirements, of part D of Title I of the CAA do not apply to the areas

as long as the areas continue to attain the NAAQS. In order to be

redesignated, EPA would need to approve requests for redesignation for

these areas, which were submitted on November 13, 1993, by the

Commonwealth of Pennsylvania. In order to be approved, a redesignation

request must satisfy the criteria of section 107(d)(3)(E), including

the requirement of section 107(d)(3)(E)(v) that the State have met all

requirements applicable to the area under section 110 and part D.

EPA notes that it has previously interpreted section 107(d)(3)(E)

to mean that the requirements applicable to a redesignation request are

those that became applicable prior to or at the time of the submission

of the request. See Memorandum dated September 4, 1992, from John

Calcagni, Director, Air Quality Management Division to Regional Air

Directors, entitled ``Procedures for Processing Requests to Redesignate

Areas to Attainment''. (EPA has followed this interpretation in

numerous redesignations. See, e.g., 59 FR 35044 and 59 FR 54391

(Indiana), 59 FR 65719 (West Virginia), 59 FR 45978 (West Virginia)).

In the case of the redesignation requests submitted for Pittsburgh and

Reading on November 13, 1993, that means that EPA would not require a

15% RFP plan, attainment demonstration, or section 172(c)(9)

contingency measures to be submitted and approved in order to determine

that the applicable requirements have been met under section

107(d)(3)(E)(v) because SIP revisions to comply with those requirements

were not due until November 15, 1993 (see sections 172(b) and

182(b)(1)(A)). EPA also notes that the determination being made in this

notice does not eliminate the applicability of other requirements to

the Pittsburgh and Reading areas, such as the RACT requirements of

section 182(b)(2) or the requirements of section 184(b) that apply to

areas within the Northeast Ozone Transport Region.

Furthermore, for another reason, even without the action being

taken with this notice, the submission and approval of section

172(c)(9) contingency measures would not have been required in order

for the November 13, 1993 redesignation requests to be approved in

accordance with pre-existing EPA policy since EPA has also long

interpreted section 172(c)(9) as not being applicable to areas

attaining the NAAQS.

As stated in the DFR, the General Preamble for the Interpretation

of Title I of the Clean Air Act Amendments of 1990 (57 FR 13498) states

that, in the context of a discussion of the requirements applicable to

redesignation requests, that the ``requirements for RFP will not apply

in evaluating a request for redesignation to attainment since, at a

minimum, the air quality data for the area must show that the area has

already attained. Showing that the State will make RFP towards

attainment will, therefore, have no meaning at that point'' (57 FR

13564). EPA restated this interpretation in a memorandum dated

September 4, 1992, from John Calcagni, Director, Air Quality Management

Division, to Regional Air Directors, entitled ``Procedures for

Processing Requests to Redesignate Areas to Attainment'' which states

that RFP requirements ``will not apply for redesignations because they

only have meaning for areas not attaining the standard''.

Comment #2 The CAC stated that EPA's May 26, 1995 notice illegally

waived the 15% plan and RFP requirements. According to the commenter,

section 182(b) required moderate areas such as Reading and Pittsburgh

to develop and submit 15% plans and the 15% plan requirement is not a

de minimis requirement that can be waived. The commenter also stated

that the most compelling reason for a 15% plan in Reading and

Pittsburgh is the need to protect public health as both areas have

experienced high levels of air pollution.

Response #2 As explained in the May 26, 1995 notice and the May

10,

[[Page 37017]]

1995 memorandum from John S. Seitz, Director, Office of Air Quality

Planning and Standards, to the Regional Air Directors entitled

``Reasonable Further Progress, Attainment Demonstration, and Related

Requirements for Ozone Nonattainment Areas Meeting the Ozone National

Ambient Air Quality Standard'', establishing the policy underlying that

notice, EPA believes that it is reasonable to interpret the language of

the pertinent statutory provisions so as not to require a submission of

the 15% RFP plan from an area that is attaining the standard for so

long as the area continues to attain the standard because the purpose

of an RFP plan, as stated explicitly in section 171(1) of the CAA, is

to ensure attainment by the applicable attainment date. Once an area

has attained the standard, the stated purpose of the RFP requirement

will have already been fulfilled. This interpretation is not based on

EPA's de minimis authority (see Alabama Power Co. v. Costle, 636 F.2d

323, 360-61 (D.C. Cir. 1979)), but on the language of the pertinent

statutory provisions. In sum, the commenter has not provided any

rationale to persuade EPA that its interpretation is not reasonable.

With respect to air quality levels, this action is premised on the

determination that both Pittsburgh and Reading have attained the ozone

NAAQS, which is set at a level to protect public health, allowing an

ample margin of safety. Both Pittsburgh and Reading attained the

standard prior to the submission of the redesignation requests in

November 1993 and continue to attain the standard as there have been no

monitored violations of the standard since then.

Comment #3 The CAC also commented that Reading and Pittsburgh have

no VOC control strategy and that to consider redesignating the areas

without reformulated gasoline and enhanced inspection and maintenance

is without basis in the law or common sense.

Response #3 As noted earlier, this action is not a redesignation.

Whether the redesignation requests for Pittsburgh and Reading satisfy

the requirements of section 107(d)(3)(E) is a matter for a separate

proceeding regarding those requests. Furthermore, EPA notes that VOC

controls have been adopted and are in place in both Reading and

Pittsburgh, e.g., VOC RACT control measures.

Comment #4 The CAC stated that EPA itself pointed out that its

action in determining that the Pittsburgh-Beaver Valley and Reading

areas have attained the NAAQS and not requiring the submittal of a 15%

RFP plan does not shield an area from future EPA action to require

emission reductions where there is evidence showing that the subject

area's emissions contribute to attainment/maintenance problems in other

nonattainment areas. The commenter noted that EPA had determined in the

January 24, 1995, ``Final Rule on Ozone Transport Commission; Low

Emission Vehicle Program for the Northeast Ozone Transport Region'' (60

FR 4712) (OTC LEV Program) that ozone and emissions from western

Pennsylvania contribute to the ozone problems in the Philadelphia

nonattainment area and stated that it is inequitable to require a 15%

RFP plan for Philadelphia but not for areas that contribute to

Philadelphia's air quality problem.

Response #4 The issue concerning the applicability of RFP,

attainment demonstration and related requirements must be considered

independently from the issue of EPA's authority to impose requirements

relative to intrastate transport of emissions. Today's rulemaking

action only determines that the Pittsburgh-Beaver Valley and Reading

areas have attained the NAAQS and states that the CAA does not require

the submittal of a 15% RFP plan and other related requirements so long

as the areas continue to attain the standard.

EPA has separate authority under sections 110(a)(2) (A) and (D) to

require that SIPs include adequate provisions prohibiting sources in

one area from contributing significantly to nonattainment or

interfering with maintenance in any other area. However, a general

finding of SIP inadequacy is not warranted at this time for two

reasons. First, Pennsylvania is part of the Ozone Transport Region

(OTR) and not requiring RFP and attainment demonstration SIP revisions

does not relieve the Pittsburgh-Beaver Valley and Reading nonattainment

areas from meeting the emission reduction requirements of section

184(b). This section requires States in the OTR to implement specific

control measures in all areas of the OTR regardless of attainment

status. These control measures are also the creditable emission

reductions commonly used by States to meet the 15% RFP plan

requirement. Consequently, these areas may in fact obtain the 15%

reduction in VOC emissions called for by the 15% RFP plan requirement.

Furthermore, EPA determined in the OTC LEV Program Rule that

emission reductions achieved by the OTC LEV program applied throughout

the OTR are necessary to bring certain nonattainment areas in the OTR

into attainment (including maintenance) of the ozone standard. In

addition to the emission reductions from the OTC LEV program, emission

reductions from other regional strategies, such as the OTC Memorandum

of Understanding to adopt stringent controls on NOx emissions from

stationary sources, which was signed by Pennsylvania, are anticipated.

As EPA concluded in the OTC LEV Program Rule, however, the States in

the OTR should be allowed the opportunity to address pollution

transport in the attainment demonstrations that will be forthcoming

from the nonattainment areas of the OTR before the Agency exercises its

SIP-call authority more broadly to address non-LEV deficiencies. See 60

FR 4717-18 (Jan. 24, 1995).

Comment #5 The South Western Pennsylvania Growth Alliance (SWPGA)

and Greater Pittsburgh Chamber of Commerce submitted comments

supporting EPA's rulemaking. In addition, they submitted comments

concerning issues relevant to the redesignation of the Pittsburgh-

Beaver Valley area.

Response #5 EPA acknowledges these comments. However, as stated in

the DFR, EPA is only determining that the Pittsburgh-Beaver Valley and

Reading areas have attained the NAAQS and that the submittal of a 15%

RFP plan and ozone attainment demonstration and the requirements of

section 172(c)(9) concerning contingency measures is not required by

the CAA so long as the areas do not violate the ozone standard.

Final Action

EPA is making a final determination that the Pittsburgh-Beaver

Valley and Reading ozone nonattainment areas have attained the ozone

standard and continue to attain the standard at this time. As a

consequence of this determination, the requirements of section

182(b)(1) concerning the submission of the 15% RFP plan and ozone

attainment demonstration and the requirements of section 172(c)(9)

concerning contingency measures are not applicable to the area so long

as the area does not violate the ozone standard. Since these areas will

not be required to submit 15% RFP plans or attainment demonstrations,

these areas will not be in the control strategy period for conformity

purposes for so long as the areas do not violate the standard. However,

the Pittsburgh-Beaver Valley and Reading areas, which are already

demonstrating conformity to a submitted maintenance plan pursuant to 40

CFR part 51, Sec. 51.448(i), may continue to do so, or the Commonwealth

may elect to withdraw

[[Page 37018]]

the applicability of the submitted maintenance plan budget for

conformity purposes until the maintenance plan is approved. The

applicability may be withdrawn through the submission of a letter from

the Governor or his or her designee. If the applicability of the

submitted maintenance plan budget is withdrawn for transportation

conformity purposes, the build/no-build and less-than-1990 tests will

apply until the maintenance plan is approved.

EPA emphasizes that these determinations are contingent upon the

continued monitoring and continued attainment and maintenance of the

ozone NAAQS in the affected area. When and if a violation of the ozone

NAAQS is monitored in the Pittsburgh-Beaver Valley or Reading

nonattainment areas (consistent with the requirements contained in 40

CFR part 58 and recorded in AIRS), EPA will provide notice to the

public in the Federal Register. Such a violation would mean that the

area would thereafter have to address the requirements of section

182(b)(1) and section 172(c)(9) since the basis for the determination

that they do not apply would no longer exist.

As a consequence of the determination that these areas have

attained the NAAQS and that the RFP and attainment demonstration

requirements of section 182(b)(1) do not presently apply, the sanctions

clocks started by EPA on January 18, 1994, for failure to submit these

requirements are hereby stopped since the deficiency for which the

clock was started no longer exists.

EPA finds that there is good cause for this action to become

effective immediately upon publication because a delayed effective date

is unnecessary due to the nature of this action, which is a

determination that certain Clean Air Act requirements do not apply for

so long as the areas continue to attain the standard. The immediate

effective date for this action is authorized under both 5 U.S.C.

553(d)(1), which provides that rulemaking actions may become effective

less than 30 days after publication if the rule ``grants or recognizes

an exemption or relieves a restriction'' and section 553(d)(3), which

allows an effective date less than 30 days after publication ``as

otherwise provided by the agency for good cause found and published

with the rule.''

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. Today's determination does not create any new requirements, but

suspends the indicated requirements. Therefore, because this notice

does not impose any new requirements, I certify that it does not have a

significant impact on any small entities affected.

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 that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under section 205, EPA 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 today's final action 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 imposes no new Federal

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this final rule determining that the Pittsburgh-

Beaver Valley and Reading ozone nonattainment areas have attained the

NAAQS for ozone and that certain RFP and attainment demonstration

requirements of sections 182(b)(1) and 172(c)(9) no longer apply must

be filed in the United States Court of Appeals for the appropriate

circuit by September 18, 1995. 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 in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen dioxide, Ozone.

Dated: June 10, 1995.

Stanley L. Laskowski,

Acting Regional Administrator, Region III.

40 CFR part 52, subpart NN of chapter I, title 40 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 52.2037 is amended by adding paragraph (b) to read as

follows:

Sec. 52.2037 Control Strategy: Carbon monoxide and ozone

(hydrocarbons).

* * * * *

(b)(1) Determination--EPA has determined that, as of July 19, 1995,

the Pittsburgh-Beaver Valley ozone nonattainment area has attained the

ozone standard and that the reasonable further progress and attainment

demonstration requirements of section 182(b)(1) and related

requirements of section 172(c)(9) of the Clean Air Act do not apply to

this area for so long as the area does not monitor any violations of

the ozone standard. If a violation of the ozone NAAQS is monitored in

the Pittsburgh-Beaver Valley ozone nonattainment area, these

determinations shall no longer apply.

(2) Determination--EPA has determined that, as of July 19, 1995,

the Reading ozone nonattainment area has attained the ozone standard

and that the reasonable further progress and attainment demonstration

requirements of section 182(b)(1) and related requirements of section

172(c)(9) of the Clean Air Act do not apply to this area for so long as

the area does not monitor any violations of the ozone standard. If a

violation of the ozone NAAQS is monitored in the Reading ozone

nonattainment area, these determinations shall no longer apply.

[FR Doc. 95-17669 Filed 7-18-95; 8:45 am]

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