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

Federal RegisterJun 4, 1996

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA084-4018; FRL-5511-2]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Pennsylvania: Revocation of Determination of Attainment

of Ozone Standard by the Pittsburgh-Beaver Valley Ozone Nonattainment

Area and Reinstatement of Applicability of Certain Reasonable Further

Progress and Attainment Demonstration Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is providing notification of its determination that the

Pittsburgh-Beaver Valley ozone nonattainment area is no longer

attaining the National Ambient Air Quality Standard (NAAQS) for ozone,

based on monitored violations of the standard during the 1995 ozone

season. EPA is also reinstating the applicability of certain reasonable

further progress (RFP) and attainment demonstration requirements, along

with certain other requirements, of Part D of Title I of the Clean Air

Act for the Pittsburgh-Beaver Valley ozone nonattainment area because

the area is no longer in attainment for ozone.

EFFECTIVE DATE: This final rule is effective on August 15, 1996.

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 and the Pennsylvania Department of Environmental Protection,

Bureau of Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg,

Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 566-2181, at the

EPA Region III office, or at [email protected] via e-mail.

SUPPLEMENTARY INFORMATION: In a policy memorandum dated May 10, 1995,

from John Seitz, Director, Office of Air Quality Planning and

Standards, to the Regional Air Division Directors, entitled

``Reasonable Further Progress, Attainment Demonstration, and Related

Requirements for Ozone Nonattainment Areas Meeting the Ozone National

Ambient Air Quality Standard,'' EPA stated that it is reasonable to

interpret provisions regarding reasonable further progress (RFP) and

attainment demonstrations, along with certain other related provisions,

so as not to require certain SIP submissions if an ozone nonattainment

area subject to those requirements is monitoring attainment of the

ozone standard.

Based on this memo, on July 19, 1995, EPA published a final

determination (60 FR 37015) that the Pittsburgh-Beaver Valley and

Reading ozone nonattainment areas had attained the ozone standard and

that the SIP requirements for reasonable further progress, (namely the

15% plans and attainment demonstrations required under section

182(b)(1) of the Clean Air Act, and the contingency measures required

under section 172(c)(9) of the Clean Air Act) no longer applied so long

as these areas did not violate the ozone standard. The notice also

stated that the sanctions clocks started on January 18, 1994, for these

areas for failure to submit the RFP requirements were halted. The

effective date of the final determination occurred one day after the

sanction clocks expired and these areas were, in fact, under the offset

sanction at the time of EPA's final determination. However, the

sanctions were lifted as a result of EPA's final determination for the

same reason that the final determination would have halted the

sanctions clocks.

EPA has reviewed the 1995 ambient air quality data (consistent with

the requirements contained in 40 CFR part 58 and recorded in AIRS) for

the Pittsburgh-Beaver Valley ozone nonattainment area (the Pittsburgh

area), and determined that the area is no longer in attainment. During

the 1995 ozone season 17 exceedances of the standard were recorded, and

two monitors in the Pittsburgh area recorded violations of the ozone

NAAQS. The current design value for the Pittsburgh area, computed using

the ozone monitoring data for 1993 through 1995, is 133 parts per

billion (ppb). The average annual number of expected exceedances is 8.2

for that same time period. An area is considered in nonattainment when

the average annual number of expected exceedances is greater than 1.0.

A more detailed summary of the ozone monitoring data for the area is

provided in the Technical Support Document for this notice.

Other specific details of the attainment determination revocation

and the reinstatement of the 15% plan, attainment demonstration, and

contingency measures requirements for the Pittsburgh area, and the

rationale for EPA's proposed action are explained in the February 12,

1996 notice of proposed rulemaking (NPR) (61 FR 5360) and will not be

restated here. Both positive and adverse public comments were received

on the NPR.

During the public comment period EPA received one comment letter in

favor of the proposal, and two letters that contained adverse comments.

Following meetings with the representatives of the Pennsylvania

Department of Environmental Protection, EPA subsequently received

another letter from one of the commenters, the Commonwealth of

Pennsylvania, setting forth a proposed schedule of milestones for

meeting the attainment demonstration requirement. The following is a

summary of the adverse comments received on the NPR, and EPA's response

to those comments.

Comment #1: The Commonwealth of Pennsylvania opposed EPA's

proposed reinstatement of the requirements of sections 182(b)(1) and

172(c)(9) on August 15, 1996. According to the Commonwealth, the August

15, 1996 date did not allow the state enough time to develop and adopt

the necessary regulations and make the required submissions. The

Commonwealth contended that the August 15, 1996 date was not consistent

with EPA's own policy of providing a reasonable time taking into

account the pertinent circumstances, did not allow sufficient time for

the Southwestern Pennsylvania Ozone Stakeholders process (established

by the Commonwealth) to be completed, was inconsistent with the time

frame for inspection and maintenance (I/M) program submissions

established by the National Highway Systems Designation Act (NHSDA) of

1995, and did not provide sufficient time for the state rulemaking

process to occur. Subsequently, following meetings between EPA and the

state, in a letter dated May 17, 1996, the Commonwealth proposed a

schedule of milestones for submissions from the Commonwealth to EPA to

comply with the attainment demonstration requirement for the Pittsburgh

area. That schedule includes milestone dates beginning on August 15,

1996, and ending on December 31, 1997.

Response: First, with respect to the proposed August 15, 1996 date

for the reinstatement of the 15% plan and section 172(c)(9) contingency

measures requirements, for the reasons stated in the proposal EPA

continues to believe

[[Page 28062]]

that date is reasonable and provides the state with an adequate time to

prepare and adopt a SIP revision to comply with those requirements. The

reasonableness of that date is conclusively demonstrated by the fact

that the Commonwealth submitted to EPA a 15% plan, and the contingency

measures for the Pittsburgh area, as a SIP revision, on March 22, 1996.

EPA notes that this submittal also demonstrates that there is no

inconsistency between the submittal date for an interim I/M program

under the NHSDA provisions (March 27, 1996), and the August 15, 1996

date for the reinstatement of the requirements as the state is relying

in its 15% plan on such an I/M program, which it submitted to EPA on

March 22, 1996. EPA worked with the Commonwealth to develop this 15%

plan, and provided comments on the plan for the public record.

Therefore, EPA is adopting in this final action the proposed August 15,

1996 date for the reinstatement of the 15% plan and contingency

measures requirements.

Second, with respect to the date for the reinstatement of the

attainment demonstration requirement of section 182(b)(1)(A) of the

CAA, EPA believes that the comments received indicate that it is

appropriate for EPA to modify its proposal to allow additional time for

the submission of all of the aspects or elements of an attainment

demonstration. EPA believes that there is a range of time periods that

would satisfy the criteria of the May 10, 1995 policy regarding a

reasonable time for the reinstatement of the suspended requirements and

that it is also permissible to establish a schedule of milestones

requiring the submission of various elements of an attainment

demonstration culminating with the submission of fully-adopted,

enforceable regulations necessary to implement control measures

necessary to attain the ozone standard. While EPA does not agree with

all of the comments made by the Commonwealth, EPA believes that the

schedule proposed by the Commonwealth in the letter of May 17, 1996 is

a reasonable one in light of the particular circumstances pertinent to

the submission of an attainment demonstration for the Pittsburgh-Beaver

Valley ozone nonattainment area.

Under that schedule, the attainment demonstration would be split

into a number of elements, the first being due to be submitted to EPA

on August 15, 1996, EPA's original proposed date for the reinstatement

of the attainment demonstration requirement. That first element, the

photochemical oxidant modeling demonstration that identifies VOC and

NOX reduction levels necessary for attainment of the ozone NAAQS

in the area and a list of available control strategies, is the

necessary first step in the process of putting together a complete

attainment demonstration for the Pittsburgh area. EPA believes that the

August 15, 1996 date is a reasonable date for this first element as it

will provide adequate time for the completion of the modeling efforts

but ensure that the Commonwealth is moving forward expeditiously

towards the submission of a full attainment demonstration.

Under the schedule, the second element, an official SIP revision

(for which the Commonwealth has completed the public notice and hearing

process) containing a photochemical oxidant modeling demonstration and

a list of available control strategies must be submitted by the

Commonwealth to EPA by October 1, 1996. This will provide an adequate

opportunity for public input on these matters through a notice and

comment process at the state level and through the Southwestern

Pennsylvania Ozone Stakeholders process established by the state for

addressing Pittsburgh's ozone problems, while still ensuring that these

issues will be addressed in an expeditious manner.

The third element under the schedule is a SIP submission from the

Commonwealth to EPA that must be made by April 1, 1997. This submission

must consist of any emission reduction strategies selected by the

Commonwealth for the Pittsburgh area for which new regulations are not

required and an enforceable commitment, which has undergone public

notice and hearing, to submit to EPA by December 31, 1997, as final,

fully-adopted and enforceable regulations any emission reduction

strategies selected by the Commonwealth for the Pittsburgh area for

which new regulations are required. This will ensure that any selected

strategies that do not require new regulations are submitted to EPA

prior to the 1997 ozone season for incorporation in the SIP and that

any selected strategies for which new regulations are required will be

submitted in an expeditious time frame, but one that will provide

necessary additional time for state rulemaking activities. Submission

of those regulations by December 31, 1997, should provide adequate lead

time for the implementation of such regulations and EPA action

regarding those regulations prior to the 1998 ozone season.

The final element under the schedule is the December 31, 1997 date

for the submission of final, fully-adopted and enforceable regulations

to implement all selected control strategies for which new regulations

are necessary.

EPA believes that this schedule represents a reasonable

accommodation between the need for expeditious compliance with the

reinstated attainment demonstration requirement and the time for the

state regulatory process, the technical work regarding the underlying

modeling, and allowing for public input regarding these efforts through

the state notice and comment process and the Commonwealth's stakeholder

process, which is scheduled for completion by the end of 1996. EPA

notes, however, that the obligations regarding submittals to EPA

established under this milestone schedule exist regardless of the

outcome of the stakeholder process.

EPA rejects the contention of the commenter that the dates for the

reinstatement of the suspended requirements were based on a commitment

to establish such dates in a settlement agreement to settle pending

litigation. No settlement agreement regarding the proposed dates had

been entered into at the time of the proposal and the fact that EPA is

establishing the dates in this final action based on a careful

evaluation of all circumstances and comments on the proposal, including

the Commonwealth's letter of May 17, 1996, demonstrates that EPA had

not committed itself to the August 15, 1996 date at the time of the

proposal.

The sanctions consequences of this schedule are discussed below in

the CONCLUSIONS section of this notice.

Comment #2: ``Transport of ozone from outside Pennsylvania

into the Pittsburgh-Beaver Valley area was not considered.''

Response: While Pennsylvania has made great strides in improving

the air quality in the Pittsburgh area, ozone remains a problem. EPA

believes that the Pittsburgh area generates substantial emissions of

volatile organic compounds (VOC) and oxides of nitrogen (NOX),

which contribute significantly to the nonattainment problem there. This

was demonstrated in 1995, when exceedances were recorded in Pittsburgh,

and ozone concentrations at the border and in all other western and

central Pennsylvania areas were below the standard. The Commonwealth

has performed no modeling analyses to demonstrate that the ozone

problem in the Pittsburgh area is caused by transport from upwind

sources. An adequate technical

[[Page 28063]]

demonstration, including emissions data and a modeling analysis, must

be provided to support any claim of transport-dominated nonattainment.

Comment #3: ``The 1995 ozone season data was not officially

submitted to EPA until November 1995.''

Response: While the Commonwealth did not officially submit the data

to EPA until November 1995, the Commonwealth was aware of the

violations much sooner. Although the data had to go through official

quality assurance procedures, the Commonwealth had a strong indication

that the area had violated the ozone NAAQS before November 1995. In

fact, in an October 11, 1995 letter to EPA, Governor Ridge acknowledged

the violations of the ozone NAAQS that occurred in the Pittsburgh area

during the summer of 1995.

Comment #4: ``The 1995 ozone season area data was unexpected

and unusual in comparison to recent data.''

Response: As shown in the tables below, the area was not without

exceedances in recent years. From 1987 to 1995, the number of

exceedances varied from year to year with no discernable pattern. This

variation is due to year-to-year variations in emissions and

meteorological conditions.

Pittsburgh Area: Number of Ozone Exceedances: 1987-1995

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

1987 1988 1989 1990 1991 1992 1993 1994 1995

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

10..... 41 5 0 2 0 1 4 17

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

Because the area has not adequately reduced its VOC and NOX

emissions, it is subject to ozone exceedances whenever meteorological

conditions are conducive to ozone formation. One of the goals of the

Clean Air Act is to minimize the health risks that people encounter.

Since meteorological conditions cannot be controlled, the way to reduce

health risks due to ozone in the Pittsburgh area is to reduce the

anthropogenic emissions of VOC and NOX, both of which are

considered precursor pollutants. Furthermore, many VOCs are listed as

hazardous air pollutants under section 112 of the Clean Air Act, and

nitrogen dioxide (NO2) is individually regulated by EPA because of

its health and welfare effects. As a result, the reduction of VOC and

NOX emissions will reduce the health risks that are associated

with exposure to VOC and NOX, as well as reducing the health risks

due to elevated ozone levels.

Finally, the comment letter referred to comments that this same

commenter made on another, related action, EPA's February 7, 1996

proposed disapproval of Pennsylvania's ozone redesignation request for

the Pittsburgh area (61 FR 4598). On May 1, 1996, EPA responded to

those comments in the final rule disapproving Pennsylvania's

redesignation request for the Pittsburgh area (61 FR 19193). Those

comments and EPA's responses will not be restated here but are

incorporated by reference to the extent relevant to this action.

The second commenter's position is that EPA's July 19, 1995 waiver

of the 15% plan and attainment demonstration requirements for the

Pittsburgh area was unlawful because it relieved moderate ozone

nonattainment areas from requirements established for those areas in

sections 172, 176, 179, 181, and 182 of the Clean Air Act.

Comment #1: ``An area cannot be removed from nonattainment

status except by the redesignation process under section 107(d)(3),

which provides that the redesignation cannot occur unless the area not

only attained the standard but also met several other prerequisites.

Because the July 19 decision did not purport to find--and had no basis

for finding--that these other prerequisites had been met, and did not

purport to relieve the Pittsburgh-Beaver Valley area of its

nonattainment status, that decision could not lawfully exempt the area

from the requirements imposed by sections 172, 176, 179, 181, and

182.''

Response: The rationale and justification for EPA's July 19, 1995

action were thoroughly explained in that rulemaking and EPA

incorporates by reference the explanations provided therein as to the

lawfulness of EPA's action. EPA also incorporates by reference the

discussions of the rationales and bases for such actions contained in

other notices regarding similar actions taken with respect to other

ozone nonattainment areas--Salt Lake City, Utah (60 FR 36723, July 18,

1995), Muskegon and Grand Rapids, Michigan (60 FR 37366, July 20,

1995), and Cleveland, Ohio (61 FR 20458, May 7, 1996). EPA also notes

that it disapproved the Commonwealth's November 13, 1993 redesignation

request for the Pittsburgh area on May 1, 1996 (61 FR 19193), and that

the issue of whether the July 19, 1995 action had any impact on EPA's

evaluation of the redesignation request has now been rendered moot.

Comment #2: The proposal ``makes no mention of either the

conformity requirements of section 176(c) or the federal implementation

plan requirements of section 110(c).'' The same ozone NAAQS violations

that compel reimposition of the section 182(b)(1) and 172(c)(9)

requirements also compel imposition of the conformity and federal

implementation plan (FIP) requirements as well--and on the same

schedule.

Response: With respect to the conformity requirements, EPA believes

that they are not affected by this action. Rather, the conformity

requirements are as they were explained in the May 1, 1996 disapproval

of the Pittsburgh redesignation request and maintenance plan (61 FR

19193): ``When the final disapproval of the maintenance plan is

effective, the Pittsburgh area will no longer be able to demonstrate

conformity to the submitted maintenance plan pursuant to the

transportation conformity requirements in 40 CFR 93.128(I). Since the

submitted maintenance plan budget will no longer apply for

transportation conformity purposes, the build/no-build and less-than-90

tests will apply pursuant to 40 CFR 93.122. In addition, the

Commonwealth submitted a 15% rate-of-progress plan (15% plan) on March

22, 1996. Ninety days after this submittal date, the emissions budget

contained in this 15% plan will apply for conformity purposes pursuant

to 40 CFR 93.118 and 93.128(a)(1)(ii), as well as the build/no-build

test under 40 CFR 93.122.''

With respect to the FIP clock, EPA believes that the FIP clock is

analogous to the sanctions clock and, therefore, would be reinstated in

the same manner as the sanctions clock. Thus, the FIP clock, like the

sanctions clock, would resume as to the particular submission at issue,

with one day less than six months to run (the amount of time left on

the FIP clock at the time of the July 19, 1995 determination of

attainment).

For example, with respect to the 15% plan and contingency measure

requirements that are being reinstated as of August 15, 1996, the FIP

clock would

[[Page 28064]]

be reinstated at that time, with one day less than six months to run.

With respect to the elements of the attainment demonstration, the FIP

clock would resume as to each element two weeks after the due date for

each element (the date on which the sanctions would be reinstated if

the submission were not made), with one day less than six months to

run.

Comment #3: Since it is the commenter's position that the

requirements never ceased being applicable, the commenter agreed that

August 15, 1996 is ``a more than reasonable time from the Commonwealth

to meet those requirements.'' The commenter also stated that, ``Further

delay in these already long-overdue public health measures must not be

tolerated.''

Response: As stated above, EPA believed that August 15, 1996

provided the Commonwealth with a reasonable amount of time to develop

and submit a 15% plan, contingency measures, and an attainment

demonstration. However, for the reasons set out in this notice, EPA

believes that, considering the Commonwealth's particular circumstances

(including its regulatory adoption process and the Southwestern

Pennsylvania Ozone Stakeholders process) the Commonwealth needs time

beyond August 15, 1996 to complete an attainment demonstration for the

Pittsburgh area.

Conclusions

EPA has considered all the comments received, and is committed to

working with the Commonwealth to resolve the Pittsburgh area's ozone

problem. Towards that end, EPA is a member of the Southwestern

Pennsylvania Ozone Stakeholders Group and is participating in the

Stakeholders process to help identify appropriate control measures,

agreeable to all affected parties, that will bring the area into

attainment for ozone as quickly as possible, without causing an undue

economic burden to the citizens of the area.

Furthermore, EPA still believes that the August 15, 1996 date

provides the Commonwealth a reasonable amount of time to develop a 15%

plan and the contingency measures. As noted above, the Commonwealth

submitted to EPA a 15% plan, and the contingency measures, as an

official SIP revision on March 22, 1996. EPA worked with the

Commonwealth to develop this 15% plan and the contingency measures, and

provided comments on the plan for the public record.

Taking the individual circumstances the Commonwealth faces in

addressing its outstanding SIP requirements, including the

Commonwealth's rule adoption process and the Southwestern Pennsylvania

Ozone Stakeholders process, EPA has determined that it is reasonable to

allow more time than proposed for the submission of a full attainment

demonstration SIP.

EPA is still revoking the attainment determination for the

Pittsburgh area, and reinstating the RFP and attainment demonstration

requirements as of the effective date of this action. However, in lieu

of requiring the Commonwealth to submit the attainment determination

for the Pittsburgh area as a formal SIP revision by August 15, 1996,

EPA is establishing the following milestones.

(1) By August 15, 1996, the Commonwealth must submit to EPA, and

make available for public comment as a proposed SIP submission,

complete photochemical oxidant modeling for the Pittsburgh area which

identifies the VOC and NOx reductions levels necessary for attainment,

and a list of available control strategies.

(2) By October 1, 1996, the Commonwealth must submit to EPA a SIP

revision containing a photochemical oxidant modeling demonstration and

a list of available control strategies.

(3) By April 1, 1997, the Commonwealth must submit to EPA a full

SIP revision for those emission reduction strategies selected by the

Commonwealth for the Pittsburgh area for which new regulations are not

required.

(4) By April 1, 1997, the Commonwealth must submit to EPA a

committal SIP revision for those emission reduction strategies selected

by the Commonwealth for the Pittsburgh area that require new

regulations.

(5) By December 31, 1997, the Commonwealth must submit to EPA as a

SIP revision adopted final fully enforceable regulations encompassing

the emission reduction strategies contained in the committal SIP.

Unless the Commonwealth makes the required submittal to EPA, the

sanctions and sanction clocks halted by the July 19, 1995 action

suspending the attainment demonstration requirements at issue will be

reinstated, as to each of the submittals included in this milestone

schedule, two weeks after the date set for each of the submittals by

the Commonwealth to EPA. If the Commonwealth fails to make a submission

by the required date, the offset sanction would go back into effect two

weeks after the relevant milestone date, and the highway sanction clock

would be reinstated at that time where it was halted on July 19, 1995

(i.e., with approximately 6 months remaining). Sanctions or sanctions

clocks would be stopped if the Commonwealth makes the relevant overdue

submittal, if EPA affirmatively determines that the actual material

submitted by the Commonwealth contains the information necessary to

enable EPA to determine whether the Commonwealth's submission complies

with the pertinent milestone requirement. This determination would not

be a determination regarding the merits of the submission, but only a

determination as to whether it contains the necessary elements for EPA

to proceed to evaluate its merits. EPA shall make the determination as

to whether the submittal contains the necessary information within two

weeks of the actual submission date by the Commonwealth. EPA's

determination will be issued, in writing, in a letter to the Secretary

of the Pennsylvania Department of Environmental Protection and will be

publicly available.

In the event the Commonwealth makes a required submittal by the

pertinent milestone date, EPA shall, within two weeks of the milestone

date, make a determination, in writing, as to whether the actual

material submitted by the Commonwealth contains the information

necessary to enable EPA to determine whether the Commonwealth's

submission complies with the pertinent milestone requirement. If EPA

determines that the material submitted to EPA by the Commonwealth fails

to satisfy this minimum criterion, the offset sanction would be

reinstated upon that determination by EPA and the highway sanction

clock would be reinstated at that time where it was halted on July 19,

1995 (i.e., with approximately 6 months remaining). Sanctions or

sanctions clocks would be stopped if the Commonwealth subsequently

makes a submittal to cure the deficiencies identified by EPA, and if

EPA affirmatively determines in writing that the material submitted by

the Commonwealth cures the identified deficiencies. Again, EPA shall

make the determination as to the adequacy of the submittal within two

weeks of the date of the actual submittal to EPA. Each of the

determinations referenced in this paragraph will be made, in writing,

in a letter to the Secretary of the Pennsylvania Department of

Environmental Protection and made publicly available.

In those instances where EPA determines that the Commonwealth's

submittal does not contain the information necessary to enable EPA to

determine whether the Commonwealth's submission complies with the

pertinent milestone

[[Page 28065]]

requirement, EPA's letter so informing the Commonwealth will articulate

the basis for EPA's determination, specify the remedy, and identify the

actions necessary by the Commonwealth to remedy its submission to

satisfy the relevant milestone.

Although this departs from the normal approach to the cessation of

a sanctions clock or the lifting of sanctions that have already been

imposed, EPA believes that the above-described approach is justified in

the present unique circumstances. With this action, EPA is establishing

a new submission schedule for requirements that had been suspended by

the July 19, 1995 action taken pursuant to the May 10, 1995 policy.

Thus, in this case, the underlying requirements that had led to the

starting of sanctions clocks and the actual imposition of offset

sanctions for one day have been suspended since July 19, 1995. EPA

believes it is appropriate and justifiable to establish the previously-

described mechanism in the context of carrying out the terms of the

July 19, 1995 action in the event of a revocation of that determination

of attainment due to subsequent violations, and the establishment of a

milestone schedule that provides the state with a reasonable time to

comply with the reinstated requirements through the submission of

individual elements of those requirements over a period of time. That

mechanism provides that in the case where the Commonwealth makes a

submission to comply with the schedule herein established, sanctions

and sanctions clocks would not be reinstated unless EPA determines that

the submission was deficient following the process that was described

previously.

To ensure that such determinations are made by EPA expeditiously,

EPA is taking the unusual step of committing to make such

determinations within two weeks of a submission from the Commonwealth.

This will assure that sanctions are not either delayed or prolonged due

to inaction on the part of EPA. Thus, EPA has also committed to act

within two weeks on a submission from the Commonwealth made to cure a

previously-identified deficiency. This will assure that sanctions and

sanctions clocks reinstated due to an identified deficiency in a

submission will be turned off expeditiously in the event the

Commonwealth cures that deficiency. EPA views these commitments to act

within two weeks, to determine whether a submission contains the

information necessary to enable EPA to determine whether the

Commonwealth's submission complies with the milestone requirements, as

establishing an enforceable commitment or duty to make those

determinations. As noted earlier, these determinations are not

determinations on the merits of the individual submissions, but are

only determinations regarding whether the contents of the submission

are adequate for EPA to evaluate the merits of the submission. EPA also

emphasizes that, in the event the Commonwealth makes no submission at

all by the milestone date in the schedule, sanctions and sanctions

clocks would be reinstated automatically, without further action on the

part of EPA and would only be stopped upon an affirmative determination

by EPA regarding the adequacy of the submission.

As stated previously, in those instances where EPA determines that

the Commonwealth's submittal does not contain the information necessary

to enable EPA to determine whether the Commonwealth's submission

complies with the pertinent milestone requirement, EPA's letter so

informing the Commonwealth will articulate the basis for EPA's

determination, specify the remedy, and identify the actions necessary

by the Commonwealth to remedy its submission to satisfy the relevant

milestone.

EPA believes that these commitments are warranted under the special

circumstances presented by this situation, including the establishment

by EPA of a phased schedule for the submission of specified elements of

a full attainment demonstration upon the revocation of a determination

of attainment that had suspended the underlying requirements and the

fact that the Commonwealth has publicly committed to support this

schedule in a letter to the rulemaking docket. EPA also notes that due

to the fact that the offset sanctions had already been imposed in July

of 1995, there is no safety margin upon the reinstatement of the

suspended requirements, i.e., the sanction would be immediately

reimposed upon the reinstatement of the requirements. Thus, EPA

believes it is justifiable for it to establish a mechanism that, in the

event the Commonwealth makes a submission to comply with the milestone

schedule, will require EPA to act in an expeditious manner before the

sanctions would be reinstated.

With respect to the FIP clock, EPA believes that the FIP clock is

analogous to the sanctions clock and, therefore, would be reinstated in

the same manner as the sanctions clock. Thus, the FIP clock, like the

sanctions clock, would resume as to the particular submission at issue

with one day less than six months to run (the amount of time left on

the FIP clock at the time of the July 19, 1995 determination of

attainment).

Final Action

Due to the monitored violations of the ozone standard, EPA has

determined that the air quality in the Pittsburgh-Beaver Valley

moderate ozone nonattainment area is no longer attaining the ozone

standard. As a consequence, EPA is reinstating 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. In order to provide a

reasonable time for the Commonwealth to develop and submit these SIP

elements, EPA is revoking the determination of attainment and

reinstating these SIP requirements, effective beginning August 15,

1996.

EPA believes that, under the circumstances presented here, setting

an effective date of August 15, 1996 would provide the Commonwealth a

reasonable amount of time to submit a 15% plan and related contingency

measures. The Commonwealth submitted a 15% plan, and the contingency

measures, on March 22, 1996.

Furthermore, for the reasons set forth above, the following

schedule is reasonable for the development and adoption of an

attainment demonstration.

(1) By August 15, 1996, the Commonwealth must submit to EPA, and

make available for public comment as a proposed SIP submission,

complete photochemical oxidant modeling for the Pittsburgh area which

identifies the VOC and NOx reductions levels necessary for

attainment, and a list of available control strategies.

(2) By October 1, 1996, the Commonwealth must submit to EPA a SIP

revision containing a photochemical oxidant modeling demonstration and

a list of available control strategies.

(3) By April 1, 1997, the Commonwealth must submit to EPA a full

SIP revision for those emission reduction strategies selected by the

Commonwealth for the Pittsburgh area for which new regulations are not

required.

(4) By April 1, 1997, the Commonwealth must submit to EPA a

committal SIP revision for those emission reduction strategies selected

by the Commonwealth for the Pittsburgh area that require new

regulations.

(5) By December 31, 1997, the Commonwealth must submit to EPA as a

SIP revision adopted final fully enforceable regulations encompassing

[[Page 28066]]

the emission reduction strategies contained in the committal SIP.

Sanctions, sanction clocks, and FIP clocks will be reinstated as

discussed in this notice.

EPA's July 19, 1995, final determination put the Commonwealth on

notice that these requirements would be reinstated if a violation

occurred. Since the Commonwealth has been aware of the violations and

their consequences since last summer, EPA believes that this schedule

constitutes sufficient time for the Commonwealth to prepare to meet the

reactivated requirements. Sanctions will not be imposed if the

Commonwealth submits an attainment demonstration for the Pittsburgh-

Beaver Valley nonattainment area that EPA does not find deficient in

accordance with the schedule and process set out above. As discussed

above, the situation as to conformity is not changed by this rulemaking

action and is as it was explained in the May 1, 1995 final action

disapproving the redesignation request for the Pittsburgh-Beaver Valley

ozone nonattainment area.

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

the 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 this 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 reinstates temporarily suspended

requirements in accordance with the terms of the July 19, 1995 action

that suspended them. Accordingly, no additional costs to State, local,

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

action.

As described in the NPR, EPA has determined that this action will

not affect a substantial number of small entities. EPA's action does

not create any new requirements but reinstates previously applicable

requirements that had temporarily been suspended.

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

judicial review of this action regarding the Pittsburgh-Beaver Valley

ozone nonattainment area must be filed in the United States Court of

Appeals for the appropriate circuit by (Insert date 60 days from date

of publication). 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, Ozone, Reporting and recordkeeping

requirements.

Dated: May 21, 1996.

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 52.2037 is amended by revising paragraph (b)(1) to read

as follows:

Sec. 52.2037 Control Strategy: Carbon Monoxide and Ozone .

* * * * *

(b)(1)(i) Determination--EPA has made a determination, effective

August 15, 1996, that the Pittsburgh-Beaver Valley ozone nonattainment

area (the Pittsburgh area) is no longer in attainment of the National

Ambient Air Quality Standard for ozone due to monitored violations of

the standard. Therefore, effective August 15, 1996, EPA is revoking the

determination of attainment for the area made July 19, 1995, and is

reinstating the reasonable further progress and attainment

demonstration requirements of section 182(b)(1) and contingency measure

requirements of section 172(c)(9) of the Clean Air Act beginning on

August 15, 1996. With regard to the attainment demonstration

requirements, EPA has determined that the following schedule is

reasonable for the development, adoption, and submittal of an

attainment demonstration by the Commonwealth of Pennsylvania (the

Commonwealth).

(A) By August 15, 1996, the Commonwealth must submit to EPA, and

make available for public comment as a proposed SIP submission,

complete photochemical oxidant modeling for the Pittsburgh area which

identifies the VOC and NOX reductions levels necessary for

attainment, and a list of available control strategies.

(B) By October 1, 1996, the Commonwealth must submit to EPA a SIP

revision containing a photochemical oxidant modeling demonstration and

a list of available control strategies.

SIP revision for those emission reduction strategies selected by the

Commonwealth for the Pittsburgh area for which new regulations are not

required.

(D) By April 1, 1997, the Commonwealth must submit to EPA a

committal SIP revision for those emission reduction strategies selected

by the Commonwealth for the Pittsburgh area that require new

regulations.

(E) By December 31, 1997, the Commonwealth must submit to EPA as a

SIP revision adopted final fully enforceable regulations encompassing

the emission reduction strategies contained in the committal SIP.

(ii) Unless the Commonwealth makes the required submittal to EPA,

the sanctions and sanction clocks halted by the July 19, 1995 action