Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Disapproval of 15 Percent Reasonable-Further-Progress Plan for the Philadelphia Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 04-9-4028; FRL-5535-9]

Approval and Promulgation of Air Quality Implementation Plans;

Pennsylvania; Disapproval of 15 Percent Reasonable-Further-Progress

Plan for the Philadelphia Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: EPA is proposing to disapprove the State Implementation Plan

(SIP) revision submitted by the Commonwealth of Pennsylvania (for the

Philadelphia ozone nonattainment area) to meet the 15 percent

reasonable further progress (RFP, or 15% plan), also known as rate-of-

progress (ROP) requirements of the Clean Air Act. EPA is proposing

disapproval because the 15 percent plan submitted by Pennsylvania for

the Philadelphia area assumes credit towards ROP for numerous control

strategies which are either not fully adopted, are not creditable

towards ROP under the Clean Air Act, or have not been adequately

quantified. EPA cannot approve these reductions towards the 15% plan,

thus causing a ``shortfall'' towards Pennsylvania's RFP demonstration.

Therefore, the Commonwealth has not demonstrated sufficient reductions

of volatile organic compounds (VOC) to meet the RFP requirements of the

Clean Air Act. Finally, the 1990 emissions inventory estimates used in

the 15% plan as the baseline for reasonable further progress differs

substantially from Pennsylvania's separate 1990 base year emission

inventory SIP submittal. Without justification of these differences,

EPA cannot approve the revised inventory estimates.

DATES: Comments on this proposed action must be postmarked by September

9, 1996..

ADDRESSES: Written comments may be mailed to Kathleen Henry, Acting

Chief, Ozone/Carbon Monoxide, and Mobile Sources Section, Mailcode

3AT21, U.S. Environmental Protection Agency--Region III, 841 Chestnut

Building, Philadelphia, Pennsylvania, 19107. 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. Persons interested in examining these

documents should schedule an appointment with the contact person

(listed below) at least 24 hours before the visiting day. Copies of the

documents relevant to this action are also available 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 K. Rehn, Ozone/Carbon Monoxide

and Mobile Sources Section (3AT21), USEPA--Region III, 841 Chestnut

Building, Philadelphia, Pennsylvania 19107, or by telephone at:

(215)566-2176. Questions may also be addressed via e-mail, at the

following address: Rehn.B[email protected] [Please note that only

written comments can be accepted for inclusion in the docket.]

SUPPLEMENTARY INFORMATION:

Background

Section 182(b)(1) of the Clean Air Act (the Act), as amended in

1990, requires ozone nonattainment areas classified as moderate or

above to develop plans to reduce VOC emissions by fifteen percent from

the 1990 baseline inventory for the area. These ``15% plans'' were due

to be submitted to EPA by November 15, 1993, with the reductions to

occur within 6 years of enactment (i.e. November 15, 1996).

Furthermore, the Clean Air Act sets limitations on the creditability of

certain control measures towards reasonable further progress.

Specifically, States cannot take credit for reductions achieved by

Federal Motor Vehicle Control Program (FMVCP) measures (e.g. new car

emissions standards) promulgated prior to 1990; or for reductions

stemming from regulations promulgated prior to 1990 to lower the

volatility (i.e., Reid Vapor Pressure) of gasoline. Furthermore, the

Act does not allow credit towards RFP for post-1990 corrections to

existing motor vehicle inspection and maintenance (I/M) programs or

corrections to reasonably available control technology (RACT) rules,

since these programs were required to be in-place prior to 1990.

Additionally, section 172(c)(9) of the Clean Air Act requires

``contingency measures'' to be included in the plan revision. These

measures are required to

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be implemented immediately if reasonable further progress is not

achieved, or if the NAAQS standard is not attained under the deadlines

set forth in the Clean Air Act.

In Pennsylvania, three nonattainment areas are subject to the Clean

Air Act 15 Percent rate-of-progress requirements. These are the

Philadelphia severe nonattainment area, the Pittsburgh moderate

nonattainment area, and the Reading moderate nonattainment area. On

July, 19, 1995, EPA published, in the Federal Register, a final rule

waiving the 15% rate-of-progress requirements for the Pittsburgh and

Reading moderate ozone nonattainment areas. The basis for that action

was a May 10, 1995, EPA policy memo allowing such ``waivers'' for areas

having ambient monitoring data which demonstrated compliance with the

ozone standard. On June 4, 1996, EPA revoked the waiver for the

Pittsburgh area, and reinstated the 15% plan requirement. Pennsylvania

submitted separate SIP revisions for Philadelphia and Pittsburgh. The

15% plan for the Philadelphia area (Philadelphia 15% plan) was

submitted by Pennsylvania on November 15, 1994, and was re-submitted on

January 18, 1995. The Philadelphia metropolitan area includes counties

in New Jersey, Delaware, and Maryland, as well as Pennsylvania, all of

which must demonstrate reasonable further progress. However,

Pennsylvania is only responsible for achieving RFP within the

Pennsylvania portion of that metropolitan area. The Commonwealth did

not enter an agreement with the other states which comprise the metro

Philadelphia area to do a multi-state 15% plan, and submitted only a

plan to reduce Pennsylvania's contribution by fifteen percent. EPA is

taking action today only on Pennsylvania's 15% plan submittal, which

addresses only the Pennsylvania portion of the Philadelphia

metropolitan area. EPA will act separately on the Pittsburgh 15% plan,

at a later date.

EPA has reviewed the January 18, 1995 Philadelphia area 15% plan

submittal and has identified several significant deficiencies, which

prohibit approval of this SIP, per section 110 of the Clean Air Act. A

detailed discussion of these deficiencies is included below, in the

``Analysis'' portion of this rulemaking action, and also in the

technical support document (TSD) for this action. Due to these

deficiencies, the 15 percent plan, and the associated contingency

measure plan, will not achieve the total reductions required by the

rate-of-progress requirements of the Act. Therefore, EPA is proposing

disapproval of the plan. This action in no way implies disapproval, or

any other action, with respect to the individual control measures

utilized in the 15% plan or the contingency plan.

Today's action addresses only the approvability of measures towards

the reasonable further progress requirement of the Act, and does not

address whether the control measures or inventories included in the 15%

plan comply with any specific underlying requirements of the Act. For

further information regarding EPA's analysis of the Commonwealth's

submittal, please refer to the TSD for this action (found in the

official docket). A summary of the EPA's findings follows.

Analysis of the SIP Revision

Base Year Emission Inventory

The baseline from which states must determine the required

reductions for 15 percent planning is the 1990 base year emission

inventory. The inventory is broken down into several emissions source

categories: stationary, area, on-road mobile sources, and off-road

mobile sources. Pennsylvania submitted a formal SIP revision containing

their official 1990 base year emission inventory on November 12, 1992.

EPA has not yet taken rulemaking action on that inventory submittal.

There are significant differences between the source categories in the

officially submitted 1990 base year inventory and those contained in

the 1990 base year inventory in the Philadelphia 15% plan, although

total VOC emissions do not substantially vary. The Commonwealth did not

acknowledge the inconsistencies in the 15% plan inventory, nor did the

Commonwealth attempt to substantiate these differences. Furthermore,

the base year inventory in the 15% plan lacks sufficient detail for EPA

to accept it as a replacement for the official 1990 base year inventory

SIP revision. Nor has Pennsylvania requested EPA to do so. Refer to the

TSD for a specific comparison of the inventories. EPA intends to

conduct separate rulemaking action on Pennsylvania's 1990 inventory

submittal, at a later date.

Growth in Emissions Between 1990 and 1996

EPA has interpreted the Clean Air Act to require that reasonable

further progress towards attainment of the ozone standard must be

obtained after offsetting any growth expected to occur over that

period. Therefore, to meet the 15% RFP requirement, a state must enact

measures achieving sufficient emissions reductions to offset projected

growth in emissions, in addition to a 15 percent reduction of VOC

emissions. Thus, an estimate of emissions growth from 1990 to 1996 is

necessary for demonstrating reasonable further progress. Growth is

calculated by multiplying the 1990 base year inventory by acceptable

forecasting indicators. Growth must be determined separately for each

source, or by source category, since sources typically grow at

different rates. EPA's inventory preparation guidance recommends the

following indicators, in order of preference: product output, value

added, earnings, and employment. Population can also serve as a

surrogate indicator.

Pennsylvania's 15% plan contains growth projections for point,

area, on-road motor vehicle, and non-road vehicle source categories.

For a detailed description of the growth methodologies used by the

Commonwealth, please refer to the TSD for this action. In general, EPA

approves the Commonwealth's 1990-1996 emissions growth projections,

with one exception.

EPA disagrees with the growth projections for the on-road vehicle

category. The Commonwealth's 15% plan indicates that highway vehicle

emissions growth is based on growth in total vehicle miles of travel

(VMT) for the region, which the Commonwealth expects to increase by 7.7

million miles per day, and that on-road emissions are projected to

decrease by 11.9 tons/day. Since emissions from on-highway emissions

control measures are calculated separately in the plan (including

reductions associated with fleet turnover and the pre-1990 motor

vehicle standards) and Pennsylvania indicates that this growth is based

solely upon increasing VMT growth, it is unclear how motor vehicle

emissions are declining. Therefore, EPA cannot approve the

Commonwealth's on-road motor vehicle growth projection. Growth in

highway emissions should be determined independently of mobile source

control strategies. Additionally, the 15% plan should indicate what, if

any, other factors effect highway emissions growth, other than the

previously identified VMT influence.

Calculation of Target Level Emissions

Pennsylvania calculated a ``target level'' of 1996 VOC emissions,

per EPA guidance. First, the Commonwealth calculated the non-creditable

reductions from the FMVCP program and subtracted those emissions from

the 15 percent plans's 1990 inventory estimate. This yields the 1990

``adjusted inventory''. The emission reduction required to meet the 15

percent rate-of-progress requirement equals the sum of 15 percent of

the adjusted inventory and

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any reductions necessary to offset emissions growth projected to occur

between 1990 and 1996, plus reductions that resulted from corrections

to the I/M or VOC RACT rules that were required to be in-place before

1990. Table 1 summarizes the calculations for the five-county

Philadelphia area's 1 VOC target level.

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\1\ The five-county Philadelphia area is comprised of the

following counties: Bucks, Chester, Delaware, Montgomery, and

Philadelphia.

Table 1.--Calculation of Required Reductions for the Philadelphia

Nonattainment Area's 15% Plan

[Tons/day]

1990 Base Year Emission Inventory [15% plan version].......... 629.27

Adjustments for FMVCP/RVP programs in-place (prior to 1990)... -32.95

1990 Adjusted Inventory....................................... 596.32

15% of the 1990 Adjusted Inventory............................ 89.45

Reductions from Previously Required RACT Rule Corrections..... 0.84

Projected 1990-1996 Emissions Growth.......................... 8.12

1996 Target Level............................................. 506.03

1996 2 Projection Inventory................................... 637.39

Required Reduction............................................ 131.36

2 1996 forecast emissions (projected from 1990), reflecting only

emissions growth and in-place (or, pre-1990) controls.

Control Strategies in the 15% Plan

The specific measures adopted (either through state or federal

rules) for the Philadelphia area are addressed, in detail, in the

Commonwealth's 15% plan. The following is a brief description of each

control measure Pennsylvania has claimed credit for in the submitted

15% plan, as well as the results of EPA's review of the use of that

strategy towards the Clean Air Act rate-of-progress requirement.

Creditable Emission Control Strategies

The control measures described below are creditable towards the

rate-of-progress requirements of the Act. However, the Commonwealth has

in many cases failed to fully document the claimed reductions,

particularly in the case of mobile source measures, which Pennsylvania

estimates using a Post-Processor for Air Quality (PPAQ) computer model.

This model uses MOBILE modeling information as input, and determines

total reductions for mobile source control strategies. The Commonwealth

provided no documentation from this modeling, with the exception of

sample MOBILE input and output files and modeling assumptions which are

used as input to the PPAQ. Therefore, for nearly every mobile source

control strategy utilized, the 15% plan lacks detailed documentation to

support the claimed reductions. EPA is not disapproving these measures,

or the creditability of such measures. However, EPA cannot fully

approve the reductions from the measures without additional

documentation to verify the emissions estimates. For further details

regarding EPA's review of the Commonwealth's control measures, please

refer to EPA's TSD for this action, located in the docket.

Stage II Vapor Recovery

This state-adopted regulation requires the installation and

operation of vapor recovery equipment on gasoline dispensing pumps to

reduce vehicle refueling emissions. The state regulation for this

program is codified in 25 PA Code Sec. 129.75. EPA approved the

Commonwealth's Stage II program on June 13, 1994 (59 FR 112). EPA

supports the Commonwealth's use of this measure towards the rate-of-

progress requirement. However, EPA is unable to fully verify the 17.0

tons/day credit estimate claimed by the Commonwealth for this program,

due to a lack of detail regarding the methodology used to quantify

Stage II reductions for the 15% plan.

Automobile Refinishing

EPA is in the process of adopting a national rule to control VOC

emissions from solvent evaporation through reformulation of coatings

used in auto body refinishing processes. These coatings are typically

used by small businesses, or by vehicle owners. VOC emissions emanate

from the evaporation of solvents used in the coating process.

Pennsylvania's 15% plan claims reductions from EPA's national rule.

Use of emissions reductions from EPA's expected national rule is

acceptable towards the 15% plan target. Pennsylvania claims a 35%

reduction, or 6.8 tons/day from their 1996 projected uncontrolled

autobody refinishing emissions. Due to inventory documentation

deficiencies in the 15% plan, EPA cannot verify the claimed reduction.

Reformulated Gasoline

Section 211(k) of the Clean Air Act requires that, beginning

January 1, 1995, only reformulated gasoline be sold or dispensed in

ozone nonattainment areas classified as severe, or worse. This gasoline

is reformulated to reduce combustion by-products and to produce fewer

evaporative emissions. As a severe area, Philadelphia benefits from the

emission reductions from this program. However, EPA again cannot verify

the reductions from this program, based on the documentation provided

by the Commonwealth in the 15% plan.

Transportation, Storage, and Disposal Facilities (TSDFs) Rule

TSDFs are private facilities that manage dilute wastewater,

organic/inorganic sludges, and organic/inorganic solids. Waste disposal

can be done by various means including: incineration, treatment, or

underground injection or landfilling. EPA promulgated a national rule

on June 21, 1990 for the control of TSDF emissions. Pennsylvania claims

an expected VOC reduction of 3.13 tons/day from this national rule.

This measure is creditable towards the rate-of-progress requirements of

the Act. However, due to conflicts between the 1990 base and 1996

projected uncontrolled emissions from this emissions category, EPA

cannot verify this claimed reduction.

Rule Effectiveness (RE) Improvements

Rule effectiveness is a means of enhancing rule compliance or

implementation by industrial sources, and is expressed as a percentage

of total available reductions from a control measure. The default

assumption level for rule effectiveness is 80%. Pennsylvania claims RE

improvements from the 80% default level to a level of 90% in their 15%

plan SIP revision for Philadelphia, based upon improvements to RACT

regulations for twenty-nine facilities in the 5-county Philadelphia

area. The applicable RACT rules pertain to surface coating operations

(PA Code Sec. 129.52) and offset printing operations (PA Code

Sec. 129.67).

Pennsylvania followed EPA policy to quantify emissions reductions

from specific RE improvements for two categories, in the absence of

quantifiable compliance or emissions data. The RE measures Pennsylvania

claims toward the 15% plan include facility improvements, as well as

improved state oversight. Facility measures include: Improved operator

training, better operation and maintenance of process equipment,

improved source monitoring/reporting. State oversight improvements

include: More inspector training, stringent compliance inspections of

all RE improvement facilities. If the final facility inspections

identify a shortfall from the projected RE emission improvements,

Pennsylvania will utilize the ``surplus'' projected emissions

reductions (i.e., the RE improvement from 90%-94%) to alleviate the

shortfall. The state also claimed this four percent RE improvement as a

contingency measure in the plan. In the event that these

[[Page 36323]]

contingency reductions are needed to satisfy the 15% reduction

requirement, Pennsylvania must substitute another contingency measure

in place of this RE measure. For EPA's detailed analysis of this

measure, please refer to the appropriate section of the TSD for this

action. RE improvements are creditable toward the 15% plan requirement

of the Clean Air Act, and EPA supports Pennsylvania's emissions

projections for this measure. Therefore, Pennsylvania's claimed RE

improvements are approvable towards the 15% requirement of the Act.

Permanent VOC Source/Facility Shutdowns

Several industrial VOC sources that were operational in 1990 (i.e.

included in the base year inventory) have since shut down either

processes or entire facilities. Pennsylvania has adopted a banking rule

(25 Pa Code Sec. 127.208), which requires that sources wishing to bank

emission reduction credits, or ERCs, must do so within one year of

initiation of the shutdown. If not, the Commonwealth can claim credit

for the reductions as permanent and enforceable emissions reductions.

Pennsylvania's 15% plan claims partial credit for shutdowns for

which the source ``banked'' emissions reductions, and the Commonwealth

claimed the entire shutdown credit for sources that did not bank their

emissions within the one year deadline set forth in Pennsylvania's

banking rule. The 15% plan reflects shutdowns from twenty-one VOC

sources in the Philadelphia nonattainment area. These credits are

ineligible for use as future ERCs, or to offset emissions from new

sources under the Commonwealth's new source review regulation.

Reductions from this measure are both permanent and enforceable,

since the shutdowns are reflected in RACT permit conditions for the

facility. EPA is approving the use of these reductions.

Architectural and Industrial Maintenance Coatings (AIM)

Emission reductions have been projected for AIM coatings due to the

expected promulgation by the EPA of a national rule. In a memo dated

March 22, 1995, EPA allowed states to claim a 20% reduction of total

AIM emissions from the national rule. Pennsylvania claimed a 15%

reduction in AIM emissions under its 15% plan. However, due to

deficiencies in the documentation of this portion of the underlying

emissions inventory, EPA cannot verify the claimed reduction.

Tier I Federal Motor Vehicle Control Program

EPA promulgated a national rule establishing ``new car'' standards

for 1994 and newer model year light-duty vehicles and light-duty trucks

on June 5, 1991 (56 FR 25724). Since the standards were adopted after

the Clean Air Act was amended in 1990, the resulting emission

reductions are creditable toward the 15 percent reduction goal. The EPA

agrees with the State's projected emission reductions. Due to the

three-year phase-in period for this program, and the associated

benefits stemming from fleet turnover, the reductions prior to 1996 are

somewhat limited. Pennsylvania claimed a reduction of 4.5 tons/day from

this post-1990 Federal Motor Vehicle Control Program. As with other on-

highway mobile source control measures, the reductions from this

program cannot be verified without further information.

Off-Road Use of Reformulated Gasoline

The use of reformulated gasoline will also result in reduced

emissions from off-road engines such as outboard motors for boats and

lawn mower engines. The EPA agrees with the 0.59 ton/day reduction

projected in the 15% plan for off-road engines utilizing reformulated

gasoline.

Non-creditable Emissions Control Measures

The following control measure is not creditable towards meeting the

rate-of-progress requirements of the Clean Air Act. This measure, as it

is described in the submitted 15% plan, is no longer in-place.

Therefore, the emission reduction projected for this program is

invalid.

Enhanced Vehicle Inspection and Maintenance (I/M) Program

The I/M program described in the Commonwealth's 15% plan is a

contractor-operated, centralized, IM240 inspection program. This

program was conditionally approved by EPA in August of 1994. However,

since that time, Pennsylvania suspended operation of this program,

terminated the test inspector contract, and began the rule adoption

process for a decentralized program as a replacement for the

centralized program. Pennsylvania submitted a new I/M program SIP to

EPA, under authority provided by the National Highway Systems

Designation Act of 1995, on March 22, 1996. However, Pennsylvania has

not revised the 15% plan for Philadelphia to reflect differences in the

I/M program description and projected emissions reductions.

Reasonable Further Progress Shortfall

Table 2 summarizes the proposed creditable and non-creditable

reductions from Pennsylvania's 15% plan for the Philadelphia area.

While the reductions listed as ``creditable'' in this table can be used

to satisfy the Clean Air Act's reasonable further progress

requirements, the measures in many cases are not approvable because of

deficiencies related to quantification, lack of detailed emission

inventory information, and documentation deficiencies (particularly

related to mobile source control strategies).

Summary of Creditable and Non-creditable Emission Reductions for the

Philadelphia Ozone Nonattainment Area

[Tons/day]

Required Reduction for the Philadelphia area................... 131.36

Creditable Reductions

Stage II 1................................................. 117.02

FMVCP (Tier I) 1........................................... 4.51

Auto Refinishing 1......................................... 6.79

Rule Effectiveness Improvements (80%-90%).................. 21.55

Reformulated Gasoline--Highway 1...........................

Non-road vehicle use of RFG \1\........................ 0.59

Industrial Facility Shutdowns.............................. 3.24

AIM Coatings Rules \1\..................................... 5.96

TSDF Controls \1\.......................................... 3.13

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Total.................................................... 85.85

========

Reductions not Approvable: Inspection & Maintenance Program \1\ 45.64

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Total not approved....................................... 45.64

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Shortfall (from target level).................................. 45.51

1 Pennsylvania's claimed reduction. This estimate cannot be verified

based on the supporting documentation (e.g. supporting modeling,

sample calculations, base year inventory references, etc.) For

specific deficiencies related to an individual category, refer to the

applicable portion of section III of EPA's technical support document

entitled ``Evaluation of the Commonwealth's 15% Plan Control

Measures'', located in the official docket for this action.

Contingency Measures

Per section 172(c)(9) of the Act, for ozone nonattainment areas

classified as moderate or above, states must include contingency

measures in their 15% plan submittals. These are measures which are to

be immediately implemented if reasonable further progress (RFP) is not

achieved, or if the areas do not attain the NAAQS standard by the

applicable date mandated by the Act. EPA's interpretation of this Clean

Air Act requirement is set forth in The General Preamble to Title I (57

FR 13498), which requires that the contingency measures should, at a

minimum, ensure that emissions reductions continue to be made if RFP

(or attainment) is not

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achieved in a timely manner, and additional planning by the state is

needed. EPA interprets the Act to require States with moderate and

above ozone nonattainment areas to include sufficient contingency

measures in the 15% plan SIP submittal, such that upon implementation

of those measures, additional emissions reductions of up to three

percent of the adjusted base year inventory (or a lesser percentage

that will make up the identified shortfall) would be achieved in the

year after the failure has been identified. States must show that their

contingency measures can be implemented with minimal further action on

their part, and with no additional rulemaking actions (e.g. public

hearings, legislative review, etc.). EPA has further interpreted the

Act to allow states to substitute NOx control measures to achieve

a portion of the required contingency measure reductions.

Analysis of Specific Contingency Measures

The following is a discussion of each of the contingency measures

that have been included in the SIP submittals and an analysis of their

approvability.

VOC Reasonably Available Control Technology (RACT)

The CAA requires states to adopt regulatory programs mandating RACT

control strategies for major sources located in ozone nonattainment

areas. Since Philadelphia is a severe ozone nonattainment area, the CAA

threshold for major sources is 25 tons/year. Pennsylvania determined

reductions from certain classes of major source complying with RACT (on

a case-by-case basis) within the Philadelphia area, and claimed a 1.02

ton/day reduction from VOC RACT, for use as a contingency measure.

However, EPA interprets the Act to prohibit the use of mandatory

measures (i.e. those specified under the Clean Air Act for an

applicable nonattainment area) as contingency measures, unless such a

measure is in place to reduce another pollutant, and additionally

provides VOC or NOx reductions. Therefore, Pennsylvania's VOC RACT

reduction is not creditable as a contingency measure, since VOC RACT is

required to be implemented, prior to 1996, under section 182 of the

Act.

Employee Commute Options Program

The Clean Air Act required severe nonattainment areas to adopt an

employee trip reduction (ETR) program, providing a 25% reduction in

average vehicle occupancy levels during the summer morning ``rush

hour'' period. In a letter of February 27, 1995 from Pennsylvania

Governor Tom Ridge, Pennsylvania announced the suspension of

implementation and enforcement of the Commonwealth's adopted ETR

program. However, the Commonwealth has not removed the ETR regulation

from the Pennsylvania Code of Regulations, but has encouraged voluntary

``trip reduction'' efforts. Since then, Congress has removed the

requirement for this program and EPA has issued guidance interpreting

Congress's revised legislation. This guidance indicates that ETR need

not be implemented if a state undertakes additional measures to make up

the ``emissions shortfall'' caused by suspension of the program.

Pennsylvania's 15% plan SIP claims credit for early implementation

of ETR as a contingency measure, based on the assumption that the

program would be implemented in 1996 and would achieve the predicted

emissions benefits at that time. The 15% plan claims ``full'' credit

for the program, not accounting for its voluntary nature. EPA cannot

approve the Commonwealth's ETR program, as claimed within the 15% plan.

However, this measure would be approvable if the Commonwealth amended

the 15% plan to provide for reimplementation of the ETR regulation to

require a future mandatory ETR program.

NOx Source/Process Shutdowns

Pennsylvania is claiming credit, as a contingency measure, for

emissions reductions credits from four facilities that banked emissions

reduction credits from permanent NOx process shutdowns, under the

state's banking rule. These shutdowns occurred after 1990, but before

1996. Pennsylvania's banking regulation is found at 25 Pa. Code

Sec. 127.210. The sources for which the Commonwealth claims contingency

measure credit include: U.S. Steel--Fairless Hills, Martin Marietta

Astro Space, Wyeth-Ayerst Labs, and Marck Co., Inc.

These reductions are permanent, since the shutdowns are to be

reflected as RACT permit conditions in the facilities' revised permits.

EPA interprets section 182(b)(1) of the Act to require that for the

period from 1990 to 1996, only VOC reductions are creditable towards

the 15% plan requirement. Furthermore, any contingency measure

implemented early (i.e., before 1997) must also be a VOC measure, in

order to be creditable as a contingency measure for failure to reach

the 15% RFP milestone. Since the claimed shutdowns are NOx

reductions that occurred prior to 1996, the reductions are not

approvable as a contingency measure to meet the reasonable further

progress requirements of the Clean Air Act. Additionally, in order for

a NOx measure to be creditable as a contingency measure (i.e.

reductions occur after 1996), the state must demonstrate that total

NOx reduction from all combined NOx control strategies does

not exceed 2.7% of the adjusted 1990 base year NOx inventory.

Pennsylvania did not submit a 1990 baseline NOx inventory, nor

attempt to make the above demonstration.

Improved Rule Effectiveness (90%-94% Level)

Pennsylvania credits rule effectiveness (RE) improvements from the

80% default level to a level of 90% toward the 15% plan SIP obligation.

However, the Commonwealth maintains that the actual RE improvement is

94%, and is utilizing the improvements from the 90% to 94% level as a

contingency measure. These RE improvements are obtained from VOC RACT

regulations (for the Philadelphia area) pertaining to two categories--

surface coating operations (PA Code Sec. 129.52) and offset printing

operations (PA Code Sec. 129.67). Table 5.2 of the 15% plan lists those

facilities from which the Commonwealth assumes increased RE credits.

These are the same facilities listed for RE improvements towards the

15% rate-of-progress plan. If the Commonwealth identifies a shortfall

in their rule effectiveness claim (the 80-90% level) in the 15% plan,

then the Commonwealth will utilize the reductions from the 90-94% RE

level to make up a shortfall in their 15% plan. In that event, another

contingency measure must be adopted to make up any shortfall thereby

created in the Commonwealth's contingency measure portion of the SIP.

EPA approves Pennsylvania's use of this measure, and the credits

claimed for its use as a contingency measure. The reductions occurring

from this measure will be in place prior to 1996, the earliest time by

which reductions for a contingency measure would be needed. However,

EPA has issued policy allowing states to implement contingency measures

early (without penalty), assuming that such a measure is not a

mandatory Part D requirement under the Act.

Consumer and Commercial Products Reformulation

Section 183(e) of the Clean Air Act required EPA to conduct a study

of VOC emissions from consumer and commercial products and to compile a

regulatory priority list. EPA is then

[[Page 36325]]

required to regulate those categories that account for 80% of the

consumer product emissions in ozone nonattainment areas. Group I of

EPA's regulatory schedule lists 24 categories of consumer products to

be regulated by national rule, including personal, household, and

automotive products. EPA intends to issue a final rule covering these

products in the near future. EPA policy allows states to claim up to a

20% reduction of total consumer product emissions towards the

reasonable further progress requirement. Pennsylvania determined

reductions from implementation of this national rule, but claimed

credit for the program as a contingency measure. However, EPA has

interpreted the Clean Air Act to disallow the use of mandatory

measures, i.e. those required by the Act to be implemented in an ozone

nonattainment area, as contingency measures. Therefore, for the same

reason that Pennsylvania cannot utilize VOC RACT as a contingency

measure, the state cannot use the consumer products national rule as a

contingency measure.

Highway Marking Paints

This measure requires, through a memorandum of understanding with

the Pennsylvania Department of Transportation (PennDOT), a conversion

from solvent-based to low- or non-VOC paints when painting traffic

lines on highway surfaces in the Philadelphia area. EPA considers

highway paints as a subset of the AIM coating emissions category, for

which Pennsylvania has already claimed emissions reduction in the 15%

plan. However, Pennsylvania claims that highway markings are a

separately inventoried category. PennDOT estimates for traffic line

painting VOC emissions are based on the solvent formulation and usage

estimates based on population, and assume a total annual reduction of

58%-73%, compared to solvent-based paints. Pennsylvania claims a VOC

reduction in 1996 of 1.56 tons/day. The 15% plan SIP revision does not

indicate whether Pennsylvania has executed a memorandum of

understanding, the implementation mechanism for this program. This

contingency measure involves product reformulations, which are

presently commercially available, and utilizes a non-regulatory, yet

binding, mechanism for the state to require this measure. EPA assumes

that this measure could be enacted within 60 days of the Commonwealth's

failure to achieve the RFP requirements of the Clean Air Act, and is

therefore an approvable contingency measure.

Table 3.--Summary of Contingency Measures and Associated Reductions

(tons/day) for the Philadelphia Nonattainment Area

Required Contingency........................................... 17.88

========

Creditable Reductions:

Traffic Line Paint Reformulation........................... 1.56

Rule Effectiveness Improvement (90%94%)........... 8.63

--------

Total Creditable Reductions............................ 10.19

========

Reductions not Creditable:

VOC RACT reductions........................................ 1.02

Consumer/Commercial Products (National Rule)............... 6.68

NOX Source/Facility Shutdowns (post-1990).................. \1\ 1.4

6

Employer Trip Reduction Program............................ 0.93

--------

Total non-creditable reductions........................ 10.09

========

Shortfall.............................................. 7.69

\1\ NOX reduction is listed as a VOC equivalent reduction, based on a

NOX/VOC conversion factor (see discussion of measure in the TSD).

III. Proposed Action

The EPA has evaluated this submittal for consistency with the Clean

Air Act, applicable EPA regulations, and EPA policy. Pennsylvania's 15

percent plan for Philadelphia will not achieve sufficient reductions to

meet the 15 percent rate-of-progress requirements of section 182(b)(1)

of the Act. In addition, the contingency plans in these SIP submittals

would not achieve sufficient emission reductions to meet the three

percent reduction requirement, under 172(c)(9) of the Act.

Additionally, there are measures included in the plan, which are

creditable towards the Act requirement, but which are insufficiently

documented to qualify for Clean Air Act approval. EPA has not included

these measures as part of the 15% plan or contingency measure

shortfall, although the reductions from these measures are not fully

approvable towards the RFP requirement. Finally, the baseline 1990

emissions inventory contained in the Commonwealth's 15% plan varies

from the state's officially submitted 1990 emissions inventory SIP

revision, without justification or documentation.

In light of the above deficiencies, EPA is proposing to disapprove

this SIP revision under section 110(k)(3) and section 301(a) of the

Act. The submittal does not satisfy the requirements of section

182(b)(1) of the Act regarding the 15 percent reasonable further

progress plan, nor the requirement of section 172(c)(9) of the Clean

Air Act regarding contingency measures.

EPA is aware that Pennsylvania is currently revising the 15% plan,

which the Commonwealth intends to submit in the near future. Since

Congress passed the National Highway Systems Designation Act of 1995,

which amended federal I/M program requirements and granted states

authority to revise their I/M programs, and Pennsylvania has utilized

that authority to revise its I/M program, revision of the 15% plan to

reflect the I/M program changes is expected. When the Commonwealth

submits a revised 15% plan, EPA expects they will withdraw the SIP

revision which is the subject of today's action. Upon receipt of the

revised 15% plan submittal, EPA will undertake a separate review of

that plan for compliance with the requirements of the Clean Air Act. If

the deficiencies cited in today's action are remedied by the revised

submittal, EPA will withdraw this proposed disapproval and propose

approval of that submittal.

Nothing in today's action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

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 proposed disapproval of the State request under section 110

and subchapter I, part D of the Clean Air Act does not affect any

existing requirements applicable to small entities. Any pre-existing

federal requirements remain in place after this disapproval. Federal

disapproval of the state submittal does not affect its state-

enforceability. Moreover, EPA's disapproval of the submittal does not

impose any new federal requirement. Therefore, EPA certifies that this

proposed disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing

[[Page 36326]]

requirements and impose any new federal requirements.

Under section 179(a)(2), if the EPA Administrator takes final

disapproval action on a submission under section 110(k) for an area

designated nonattainment based on the submission's failure to meet one

or more of the elements required by the Act, the Administrator must

apply one of the sanctions set forth in section 179(b) of the Act

(unless the deficiency has been corrected within 18 months of such

disapproval). Section 179(b) provides two sanctions available to the

Administrator: revocation of highway funding and the imposition of

emission offset requirements. The 18-month period referred to in

section 179(a) will begin on the effective date established in the

final disapproval action. If the deficiency is not corrected within 6

months of the imposition of the first sanction, the second sanction

will apply. This sanctions process is set forth in 40 CFR 52.31.

Today's action serves only to propose disapproval of the Commonwealth's

SIP revision, and does not constitute final agency action. Thus, the

sanctions process described above does not commence with today's

action.

Also, 40 CFR 51.448(b) of the federal transportation conformity

rules (40 CFR 51.448(b)) state that if the EPA disapproves a submitted

control strategy implementation plan revision which initiates the

sanction process under Act section 179, the conformity status of the

transportation plan and transportation improvement plan shall lapse 120

days after the EPA's disapproval.

Under section 801(a)(1)(A) of the Administrative Procedures Act

(APA) as amended by the Small Business Regulatory Enforcement Fairness

Act of 1996, EPA submitted a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives and the Comptroller General of the General Accounting

Office prior to publication of the rule in today's Federal Register.

This rule is not a ``major rule'' as defined by section 804(2) of the

APA as amended.

This disapproval action for the Pennsylvania 15% plan for

Philadelphia 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.

The Regional Administrator's decision to approve or disapprove the

SIP revision will be based on whether it meets the requirements of

section 110(a)(2)(A)-(K) and part D of the Clean Air Act, as amended,

and EPA regulations in 40 CFR Part 51.

List of Subjects in 40 CFR Parts 52 and 81

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental regulations, Reporting and recordkeeping, Ozone,

Volatile organic compounds.

Dated: July 1, 1996.

W. T. Wisniewski,

Acting Regional Administrator.

[FR Doc. 96-17546 Filed 7-9-96; 8:45 am]

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