Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Disapproval of the Reasonable-Further-Progress Plan for the 1996-1999 Period for the Philadelphia Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 088-4033; FRL-5640-3]

Approval and Promulgation of Air Quality Implementation Plans;

Pennsylvania; Disapproval of the Reasonable-Further-Progress Plan for

the 1996-1999 Period for the Philadelphia Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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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 rate-of-progress

(ROP) requirements under the Clean Air Act (the Act). Under these

requirements, states must demonstrate a 3% reduction of volatile

organic compounds (VOCs) per year for a three year period between 1996

and 1999. EPA is proposing disapproval because the ROP plan submitted

by Pennsylvania for the Philadelphia area projects emissions reductions

only for control strategies to the 2005 time frame, rather than for the

1999 and 2002 interim milestone years, per the ROP requirements of the

Act. Several of these measures have not been fully adopted or have been

stayed or replaced by the Commonwealth. Additionally, the Commonwealth

has not calculated emissions target level to be achieved in 1999 (or

for 2002) to ensure attainment of reasonable-further-progress toward

attainment by the statutory deadline. Finally, the 1990 emissions

inventory estimates provided in the Commonwealth's plan for ROP for the

period from 1996-1999 vary substantially from the inventory submitted

as the Commonwealth's official 1990 base year inventory. That VOC base

year inventory was formally revised in September of 1996. This

inventory superseded all previous 1990 base year inventories submitted

by the Commonwealth for Philadelphia--including the one contained in

the ROP plan for the period from 1996 to 1999. This rulemaking action

is being taken under section 110 of the Clean Air Act.

DATES: Comments must be received on or before November 25, 1996.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone 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 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 sent via e-mail, to: Rehn.B[email protected]

(Please note that only written comments can be accepted for inclusion

in the docket.)

SUPPLEMENTARY INFORMATION:

Introduction--Clean Air Act Requirements

Reasonable-Further-Progress Requirements

Section 182(c)(2) of the Clean Air Act (the Act), as amended by

Congress in 1990, requires each state having one or more ozone

nonattainment areas classified as serious or worse to develop a plan

(for each subject area) that provides for actual VOC reductions of at

least 3 percent per year averaged over each consecutive 3-year period,

beginning six years after enactment of the Act, until such time as

these areas have attained the National Ambient Air Quality Standard

(NAAQS) for ozone. These plans are referred to hereafter as post-1996

rate-of-progress plans (or post-96 ROP plans). The first of these ROP

plans, for the 3-year period from 1996-1999, was due to be submitted to

EPA as a SIP revision by November 15, 1994.

The Act also mandates a 15 percent VOC emission reduction, net of

growth, between 1990 and 1996. That SIP

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revision was due to EPA by November 15, 1993. The plan for these

reductions occurring between 1990-1996 is hereafter referred to as the

``15% percent rate-of-progress plan.''

The Clean Air Act limits the creditability of certain control

measures toward the reasonable-further-progress requirement.

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 toward reasonable-further-progress

requirements 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 be implemented immediately if reasonable-

further-progress has not been achieved, or if the NAAQS standard is met

by the deadline set forth in the Clean Air Act.

Attainment Demonstration Requirement

The attainment dates prescribed by the Act for areas classified as

``ozone nonattainment areas'' are as follows: November 15, 1999, for

serious ozone nonattainment areas; November 15, 2005, for severe ozone

nonattainment areas; November 15, 2007, for severe areas with 1986-1988

design values greater than 0.190 ppm; or November 15, 2010, for extreme

ozone nonattainment areas.

The Act also requires that states required to submit post-1996 ROP

plan SIPs for certain areas, due by November 15, 1994 for serious or

worse ozone nonattainment areas, must also simultaneously submit for

those areas an ``attainment demonstration'' to provide for achievement

of the ozone NAAQS by the statutory deadline. This demonstration is to

be based on photochemical grid modeling, such as the Urban Airshed

Model (UAM), or an equivalent analytical method. However, in a March 2,

1995, memorandum from Mary Nichols, Assistant Administrator for EPA's

Office of Air and Radiation, EPA set forth guidance for an alternative

approach to satisfy the attainment demonstration requirements under

section 182(c)(2)(A) of the Act. Under this alternative, states were

provided the option to utilize a two-phased approach in order to

satisfy the attainment demonstration requirements of the Act.

Background

In Pennsylvania, three nonattainment areas were required to submit

15% plans in 1993 under the Act. These include the Philadelphia severe

nonattainment area, the Pittsburgh moderate nonattainment area, and the

Reading moderate nonattainment area. Since Philadelphia is the only

Pennsylvania nonattainment having a classification of serious or worse,

it is the only area with an attainment deadline beyond 1996. Therefore,

the Philadelphia area must continue to demonstrate reasonable-further-

progress toward attainment until its 2005 attainment deadline--unless

the Commonwealth can demonstrate attainment of the standard with fewer

reductions sooner than the statutory deadline.

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 its portion of that metropolitan

area. The Commonwealth did not enter an agreement with the other states

which comprise the metropolitan Philadelphia area to do a multi-state

ROP plan, and submitted only a plan to reduce Pennsylvania's

contribution by 15 percent.

On November 15, 1994, the Pennsylvania Department of Environmental

Resources submitted a post-1996 ROP plan for the Pennsylvania portion

of the Philadelphia ozone nonattainment area, which included an

attainment demonstration for that area. The post-1996 ROP plan

submitted by Pennsylvania is actually an attempt to demonstrate

reasonable-further-progress for Philadelphia from 1990 to 2005--the

area's prescribed attainment date under the Act. This plan depicts a

42% reduction (3% per year) from the 1990 baseline, net of emissions

growth during that period. In a letter dated May 31, 1995, from James

Seif, Secretary of Pennsylvania's Department of Environmental

Resources, Pennsylvania expressed its intent to follow a phased

approach to meeting the attainment demonstration requirements of the

Clean Air Act, as set forth in a March 2, 1995, EPA guidance

memorandum.

EPA is today taking action only upon Pennsylvania's post-1996 ROP

plan submittal. However, EPA is not taking action upon the attainment

demonstration portion of that plan. Based on Pennsylvania's commitment

to pursue the phased attainment demonstration approach, EPA will act

upon the attainment demonstration at a later date.

In a separate submittal from its post-1996 ROP plan for

Philadelphia, Pennsylvania submitted a plan to achieve a 15% reduction

in VOCs for the period from 1990 to 1996 for the Philadelphia area.

Pennsylvania amended this plan in January of 1995. EPA proposed

disapproval of that January 1995 plan in the July 10, 1996, edition of

the Federal Register (61 FR 36320). Pennsylvania submitted an amended

15% plan for Philadelphia on September 18, 1996, which included both a

revised 1990 base year emission inventory and a revised contingency

measure plan for the Philadelphia area, as well. EPA will act upon this

September 1996, 15% plan SIP submittal separately from today's

rulemaking action.

However, Pennsylvania has not revised its post-1996 ROP plan since

it was originally submitted, in November of 1994. EPA has reviewed this

post-1996 ROP plan submittal and has identified several serious

deficiencies that prohibit approval of this SIP under section 110 of

the Clean Air Act. A detailed discussion of these deficiencies is

included below, in the `Analysis' portion of this rulemaking action.

Due to these deficiencies, the post-1996 ROP plan will not achieve the

total reductions required by the rate-of-progress requirements of the

Act. EPA's review of this plan did not examine the individual control

measures applied toward rate-of-progress in the post-1996 ROP plan.

Many of these measures have been formally submitted as separate control

measure SIP revisions, or are national rules adopted by the federal

government.

Today's action focuses only the approvability of measures toward

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

address whether the control measures or inventories included in the

post-1996 plan comply with other specific underlying requirements of

the Act pertaining to those elements of the plan. A summary of the

EPA's findings follows.

Analysis of the SIP Revision

Base Year Emission Inventory

The baseline from which states determine the required reductions

for rate-of-progress planning is the 1990 base year emission inventory.

The inventory is broken down into several

[[Page 55255]]

emissions source sectors: stationary, area, on-road mobile, and off-

road mobile sources. Pennsylvania submitted a formal SIP revision

containing their official 1990 base year emission inventory on November

12, 1992. Pennsylvania formally revised this base year inventory on

September 12, 1996, to reflect recent, more accurate estimates of

actual 1990 emissions. EPA has not yet taken rulemaking action on the

base year inventory submittal. The post-1996 ROP plan submitted in

November of 1994 projects both emissions reductions and emissions

growth which are predicated upon an inventory which has since been

revised. The inventory that forms the basis of Pennsylvania's present

post-1996 ROP plan is no longer valid, and EPA cannot approve emissions

reduction ``target levels'' derived from this outdated inventory. EPA

intends to conduct separate rulemaking action on Pennsylvania's

official 1990 base year inventory SIP submittal at a later date.

Growth in Emissions Between 1996 and 1999

EPA has interpreted the Clean Air Act to require that states must

provide for sufficient control measures in their reasonable-further-

progress plans to offset any emissions growth projected to occur after

1996. Therefore, to meet the ROP requirement, a state must provide for

sufficient emissions reductions to offset projected growth in

emissions, in addition to a 3 percent annual average reduction of VOC

emissions. Thus, an estimate of emissions growth from 1996 to 1999 is

necessary for demonstrating reasonable-further-progress by 1999. 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 post-1996 plan projects total growth of 61 tons per

day (tpd) for the period between 1990 and 2005. This includes all

sectors, i.e., point, area, on-road motor vehicle, and non-road vehicle

source categories. Growth for point and area sources is based upon

estimates from the Bureau of Economic Analysis (BEA). Pennsylvania

linearly extrapolated from several BEA reports representing past and

future years to obtain its 2005 estimates for stationary, area, and

non-road mobile source sectors' growth. Highway mobile source growth

was determined through projections using the MOBILE computer model and

local projections for vehicle miles of travel increases in

Philadelphia.

No interim growth estimates have been included in Pennsylvania's

plan, therefore, growth for the period from 1996 to 1999 cannot be

determined. Pennsylvania must estimate interim growth levels to

determine the level of emissions reduction control strategies needed to

demonstrate reasonable-further-progress by 1999.

Calculation of Target Level Emissions

A ``target level'' of emissions represents the maximum level of

emissions allowed in each post-1996 milestone year which will still

provide the 3 percent per year rate-of-progress requirement mandated by

the Act. EPA's guidance document entitled Guidance on the Post-1996

Rate-of-Progress Plan and the Attainment Demonstration, dated January

1995 (EPA 452-93-015), outlines the approach states must take to

calculate the 1999 target level needed to satisfy the Act's post-1996

plan requirement.

The Commonwealth has not calculated a 1999 target level in its

plan. Instead, the Commonwealth calculated a target level for ROP by

2005. Without an emissions target level for the 1999 milestone year, it

is impossible to determine if the Commonwealth has achieved reasonable-

further-progress for the 1996-1999 period. Therefore, EPA must

disapprove the Commonwealth's ROP plan for failure to demonstrate a 3

percent per year (on average) reduction from 1996 to 1999, as required

under section 182(c)(2)(B) of the Act.

Control Strategies in the Philadelphia Post-1996 ROP Plan

Federal and state adopted VOC control measures may be credited

toward the ROP plan requirements of the Act (with the exception of

measures promulgated prior to 1990 which were specifically discussed

earlier). Per section 182(c)(2)(C) of the Act and EPA guidance, states

also may substitute NOX control strategies (with certain

limitations) in the ROP plan, provided that these NOX reductions

will provide at least as much progress toward meeting the NAAQS as VOC

controls would. In order to claim NOX reductions, states must

include a summary NOX emissions inventory and NOX growth

projections as part of their ROP SIP. The Commonwealth has not provided

this NOX inventory and growth information in its post-1996 SIP

submittal.

The Commonwealth has substituted NOX reductions in its post-

1996 plan, but has not calculated 1999 milestone target levels for the

pollutant NOX. Therefore, EPA must disapprove the Commonwealth's

post-1996 ROP plan for failure to satisfy the requirements of section

182(c)(2)(C) of the Act and to applicable EPA guidance.

The specific measures adopted (either through state or federal

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

Commonwealth's post-1996 plan. A list of control measures for which

Pennsylvania has claimed credit in its Philadelphia post-1996 ROP plan

for Philadelphia follows, along with a brief description of each.

Description of Control Strategies in the Post-1996 Plan

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).

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 post-1996 plan claims reductions from EPA's national

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

creditable toward reasonable-further-progress.

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. This measure is creditable

toward ROP planning.

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:

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incineration, treatment, or underground injection or landfilling. EPA

promulgated a national rule on June 21, 1990 for the control of TSDF

emissions. This measure is creditable toward ROP planning.

Industrial 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 ROP

plan SIP revision for Philadelphia, based upon improvements to RACT

regulations for specific 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 ROP 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. RE improvements are creditable toward

the ROP plan requirement of the Clean Air Act.

Permanent VOC/NOX Source/Process 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 ROP 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 ROP plan reflects shutdowns from twenty 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. Use of permanent,

enforceable shutdowns for ROP planning is acceptable, provided the

reductions are not ``double-counted'' in the plan (e.g., industrial

growth estimates do not account for the shutdowns).

Architectural and Industrial Maintenance Coatings (AIM) Rule

Emission reductions have been projected for AIM coatings due to the

expected promulgation by the EPA of a national reformulation rule.

These coatings include a host of field-applied surface coatings used

for household, commercial, and industrial applications--including for

example, paints, highway coatings, and architectural finishes.

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 ROP plans. Due to the three-year

phase-in period for this program, and the associated benefits stemming

from fleet turnover, the reductions were not significant prior to 1996.

FMVCP programs promulgated as a result of the Clean Air Act as amended

in 1990 are creditable for ROP planning purposes.

Off-Road Use of Reformulated Gasoline

The use of reformulated gasoline will also result in reduced

emissions (for both exhaust and evaporative emissions) from off-road

engines such as outboard motors for boats and lawn mower engines. This

measure is creditable toward the ROP requirements of the Act.

IM240 Enhanced Vehicle Inspection and Maintenance (I/M) Program

The I/M program described in the Commonwealth's ROP 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, which EPA proposed to

conditionally approve on October 3, 1996. Pennsylvania has not revised

the ROP plan for Philadelphia to reflect the significant changes to the

I/M program since the time the ROP plan was submitted to EPA. I/M

program emissions reductions are creditable toward ROP planning.

VOC/NOX Reasonably Available Control Technology (RACT) Rules

The Act requires states to adopt regulatory programs to control

major sources of VOCs and NOX located in ozone nonattainment

areas--with the definition of ``major'' becoming increasingly stringent

based upon the nonattainment area classification. RACT is a generic

term referring to the variety of controls available to reduce emissions

from a source or class of sources. EPA has issued guidelines (i.e.,

CTGs) for RACT for more than 30 VOC source categories, with plans to

issue at least 15 more. Additionally, EPA has issued Alternative

Control Techniques (ACTs) for specific classes of NOX sources.

Pennsylvania has adopted a ``case-by-case'' regulatory approach to

RACT, which applies to the Philadelphia area. Individual sources are

reviewed independently to determine the level of RACT that source must

enact. RACT improvements required by the Clean Air Act of 1990 are

creditable toward ROP plans.

Employee Trip Reduction (ETR) Program

This program requires employers having 100 or more employees in a

subject nonattainment area to develop and submit trip reduction plans

and to reduce their employees trips, as measured by average passenger

occupancy (APO) levels. A regulation implementing this Clean Air Act

requirement was adopted by Pennsylvania, but was stayed by the Governor

before it became effective. Congress eventually amended the Clean Air

Act to change the nature of the ETR requirement to allow for its

voluntary implementation. Mandatory ETR programs are creditable toward

ROP planning.

Consumer Products National Rule

EPA is in the process of adopting regulations to control VOC

emissions from consumer products, through manufacturer reformulation of

these types of products. These products include household, personal,

and automotive related-products which

[[Page 55257]]

contain VOCs. Pennsylvania has claimed credit toward the ROP plan for

implementation of this national rule. The consumer products national

rule is creditable toward ROP planning.

Traffic Line Painting Reformulation

This measure would require conversion from VOC to water based

traffic line paints by the Pennsylvania Department of Transportation

(PennDOT). This measure would take the form of a consent decree with

PennDOT requiring continued use of these water-based coatings.

Pennsylvania has taken credit for this measure in its post-1996 plan.

Only through a mandatory enforcement mechanism (e.g., a binding consent

decree) would this measure be creditable toward ROP planning.

Highway Vehicle Control NOX Reductions

This measure includes total NOX reductions associated with

several mobile source programs. Several programs which would achieve

NOX reductions, in addition to any other benefits, include the

enhanced I/M program, the Federal Motor Vehicle Control Program

(FMVCP), and Phase II of the reformulated gasoline program.

Pennsylvania has apparently taken credit for all NOX reductions

stemming from mobile source measures in place, which provide reductions

in the Philadelphia area. However, it is unclear which specific

measures are included in the Commonwealth's estimates.

Ozone Transport Region Industrial/Utility Boiler Controls

The Ozone Transport Commission adopted a memorandum of

understanding (MOU) for a control strategy to address industrial

NOX emissions, primarily those generated by electric utilities.

The MOU recommends reductions (from 1990 levels) from 250 million Btu

and larger fossil fuel fired indirect transfer units of NOX.

Additionally, 15 megawatt electric generating units would be capped at

1990 emissions levels. The reductions would take place through two

phases, beginning in 1999. Pennsylvania has claimed these NOX

reductions in its post-1996 ROP.

Analysis of Control Measures:

Emission Control Measures for the Philadelphia Ozone Nonattainment Area

Post-1996 Plan

VOC Control Strategies:

IM240 Program

Federal Reformulated Gasoline

Federal Motor Vehicle Control Program (Tier I vehicle standards)

Employer Trip Reduction Program

Stage II Vapor Recovery at Gasoline Stations

VOC/NOX RACT

Select Industrial Rule Effectiveness Improvements (80%90%)

Federal Architectural Industrial and Maintenance Coatings Rule

Industrial Facility/Process Shutdowns

Federal Consumer Products Rule

Federal Autobody Refinishing Rule

Traffic Line Paint Reformulation

Treatment, Storage, and Disposal Facility RCRA National Rule

NOX Control Strategies:

Total Highway Vehicle-related Reductions

Industrial Facility/Process Shutdowns

Industrial/Utility Boiler NOX Controls

The Commonwealth's plan projects emissions reductions from each of

the above control strategies for the year 2005 and, therefore

reductions were estimated by the Commonwealth for the evaluation year

2005. However, for the post-1996 plan, the Commonwealth is required to

project reductions expected in 1999 for any claimed control strategy,

in order to demonstrate that the area will meet its 1999 target level,

and therefore demonstrate reasonable-further-progress for the 1999

milestone date specified by the Act.

Without a 1999 milestone target level and a projection for 1999

emissions reductions associated with the control strategies claimed

within the post-1996 ROP plan, it is impossible to determine if

reasonable progress has been achieved for the period from 1996 to 1999.

Several of the control strategies contained in the post-1996 plan

are not creditable toward ROP under the Act, since the state has not

adopted rules for those programs, or the programs have been stayed and

are not presently being implemented as stated by the post-1996 plan.

One example is the enhanced IM240 program described in the

Commonwealth's SIP, which has been subsequently replaced with a test-

and-repair ASM enhanced I/M program. Another example, the ETR which was

stayed, and is no longer being implemented as a mandatory control

measure, as described in the post-1996 ROP plan.

Since EPA cannot determine if the measures contained in the

Philadelphia post-1996 plan are sufficient to demonstrate reasonable-

further-progress from 1996 to 1999 or from 1999 to 2002, EPA is not

evaluating the creditability of specific measures or the levels of

emissions reductions claimed by the Commonwealth for specific measures

in the plan, at this time.

Contingency Measures

Per sections 172(c)(9) and 182(c)(9) of the Act, states must

include contingency measures in their rate-of-progress plan submittals

for ozone nonattainment areas classified as moderate or above.

Contingency measures are measures which are to be immediately

implemented if reasonable-further-progress is not achieved in a timely

manner, 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

reasonable progress (or attainment) is not achieved in a timely manner.

Contingency measures must be fully adopted rules or measures but do not

need to be implemented until they are triggered by a failure to either

meet a milestone or attain the NAAQS.

States must show that their contingency measures can be implemented

with minimal further action on their part, and with no additional

rulemaking action (e.g., public hearings, legislative review, etc.).

Analysis of the Commonwealth's Contingency Measures

The Commonwealth's post-1996 plan does not specify any contingency

measures to be applied if reasonable-further-progress is not achieved

by the 1999 milestone date. Pennsylvania's post-1996 plan indicates the

state will have more control measures in place than is needed to

demonstrate reasonable-further-progress by 2005, and that the

``surplus'' of emissions reductions generated by these control measures

eliminates the necessity for contingency measures, since this surplus

could be used toward any shortfall.

EPA disagrees with this rationale. The contingency measures must be

available in 1999 if reasonable progress is not achieved by that

milestone date, not 2005 as the Commonwealth's plan provides for. If

EPA determines there is an emissions reduction shortfall in 1999,

measures which have already been enacted by the Commonwealth or the

federal government would not serve to alleviate the shortfall. Only

through implementation of additional measures (i.e., contingency

measures), or through

[[Page 55258]]

early implementation of measures slated for the future, could

additional emissions reductions occur.

Therefore, the Commonwealth's plan is not approvable at this time,

due to a lack of sufficient continency measures to offset sufficient

ozone precursor emissions in the year after a shortfall, or failure to

achieve ROP, has been identified.

However, the Commonwealth has submitted a contingency measure plan

as part of its September 1996 15% plan submittal. EPA will act upon

that submittal, including the contingency measures contained within, in

a separate rulemaking from today's action.

Proposed Rulemaking Action

EPA has evaluated this submittal for consistency with the Clean Air

Act, applicable EPA regulations, and EPA policy. Pennsylvania's post-

1996 rate-of-progress plan for the Philadelphia nonattainment area will

not achieve sufficient reductions to meet the rate-or-progress

requirements of section 182(c)(2)(B) of the Act. Pennsylvania has not

projected emissions growth for the period from 1996-1999, nor has the

Commonwealth calculated an interim ``target level'' of emissions for

1999, by which to measure its rate-of-progress in attaining the ozone

NAAQS. Instead, the Commonwealth's plan evaluates emissions reductions

for the period from 1990 to 2005--ignoring any interim evaluation

milestones. Several of the measures listed in the plan (to occur by

2005) have been halted or stricken from the Commonwealth's regulations,

and are therefore invalid toward meeting the ROP requirement for the

1999 milestone year.

Additionally, the baseline 1990 emissions inventory contained in

the Commonwealth's post-1996 plan has been superseded by a revised

formal base year inventory which was submitted in September of 1996 as

part of the Commonwealth's 15% RFP plan. The inventory from which many

of the control measure emissions reductions for the Commonwealth's

post-1996 plan (which contains projected emissions reductions from 1990

to 2005) were determined is therefore invalid. The post-1996 ROP plan

control measure reductions must be recalculated based upon the

Commonwealth's revised base year inventory.

Finally, the Commonwealth's plan does not contain contingency

measures. Under sections 172(c)(9) and 182(c)(9) of the Act, the

Commonwealth is required to adopt such backstop measures in the event

an emissions shortfall occurs in the 1999 milestone year.

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

this SIP revision, which was submitted November 12, 1994, under

sections 110(k)(3) and 301(a) of the Act. The submittal does not

satisfy the requirements of section 182(c)(2)(B) of the Act regarding

the post-1996 rate-of-progress plan, nor the requirement of section

172(c)(9) of the Clean Air Act regarding contingency measures.

EPA is soliciting public comments on the issues discussed in this

document, or on other matters relevant to the demonstration of

reasonable-further-progress toward attainment of the ozone NAAQS for

the period from 1996 to 1999. These comments will be considered before

taking final action. Interested parties may participate in the Federal

rulemaking procedure by submitting written comments to the EPA Regional

office listed in the ADDRESSES section of this document.

The Agency has reviewed this request for revision of the federally-

approved State implementation plan for conformance with the provisions

of the 1990 Clean Air Act, as enacted on November 15, 1990. The Agency

has determined that this action does not conform with the statute and

therefore must be disapproved.

Nothing in this 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.

Administrative Requirements

Executive Order 12866

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.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

EPA's disapproval of the state request under Section 110 and

subchapter I, part D of the CAA does not affect any existing

requirements applicable to small entities. Any preexisting 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 requirements. Therefore, EPA certifies that this

disapproval action does not have a significant impact on a substantial

number of small entities because it does not remove existing

requirements and impose any new Federal requirements.

Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

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

private sector, of $100 million or more. Under Section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval action proposed/promulgated

does not include a Federal mandate that may result in estimated costs

of $100 million or more to either State, local, or tribal governments

in the aggregate, or to the private sector. This Federal action

approves preexisting requirements under State or local law, and imposes

no new Federal requirements. Accordingly, no additional costs to State,

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

this action.

The Administrator's decision to approve or disapprove the

Commonwealth's post-1996 rate-of-progress plan 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.

[[Page 55259]]

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Ozone, Particulate matter, Reporting and recordkeeping

requirements.

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

Dated: October 15, 1996.

William T. Wisniewski,

Acting Regional Administrator, Region III.

[FR Doc. 96-27472 Filed 10-24-96; 8:45 am]

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