Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; 15 Percent Plan and 1990 VOC Emission Inventory for the Philadelphia Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 099-4063; FRL-5837-6]

Approval and Promulgation of Air Quality Implementation Plans;

Pennsylvania; 15 Percent Plan and 1990 VOC Emission Inventory for the

Philadelphia Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final rulemaking.

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SUMMARY: EPA is granting conditional interim approval of 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 requirements of the Clean Air Act. EPA is

granting conditional interim approval because the 15% plan submitted by

Pennsylvania for the Philadelphia area relies on the inspection and

maintenance (I/M) program that received a conditional interim approval.

Finally, EPA is approving the Philadelphia 1990 VOC emission inventory

with certain exceptions as explained herein.

DATES: This action is final on July 9, 1997.

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ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

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: Cynthia H. Stahl, Ozone/Carbon

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

Chestnut Building, Philadelphia, Pennsylvania 19107, or by telephone

at: (215) 566-2180 or via e-mail at: [email protected].

SUPPLEMENTARY INFORMATION: On March 11, 1997, EPA proposed conditional

interim approval of the Philadelphia 15% plan and the 1990 VOC emission

inventory (62 FR 11131). The basis for EPA's action is that the

Philadelphia 15% plan on its face achieves the required 15% emission

reduction but does not contain the required verification of emission

calculations necessary for full approval and relies on the Pennsylvania

Inspection and Maintenance (I/M) rule that received final conditional

interim approval on January 28, 1997 (62 FR 4004). The details of the

September 12, 1996 Pennsylvania submittal are contained in the March

11, 1997 notice and accompanying technical support document and will

not be reiterated here. The discussion here will address additional

information submitted by Pennsylvania on April 10, 1997 and EPA's

responses to public comments received on the proposed rulemaking

notice. This action is being taken under section 110 of the Clean Air

Act (the Act).

I. Pennsylvania DEP's April 10, 1997 Supplement

Pennsylvania submitted a letter to EPA on April 10, 1997, within

the required time frame, committing to satisfy all the conditions

listed by EPA in the proposed rulemaking notice and within the time

frames required by that notice. Included in its April 10, 1997 addendum

is additional documentation to satisfy some of those conditions listed

by EPA. Specifically, Pennsylvania submitted additional stationary

source documentation (identified as Attachment 1 of its addendum) for

the shutdown credits claimed in the 15% plan. Part of this

documentation is the detailed emission inventory breakdown on a unit by

unit basis for Philadelphia County that was not included in the

September 12, 1996 submittal. Pennsylvania also included sample

calculations and a copy of the methodology it followed to determine

stationary source emissions (identified as Attachment 1 of its

addendum) and revised charts and tables for insertion into the

September 12, 1996 submittal (identified as Attachment 2 of its

addendum). Pennsylvania adjusted the amount of shutdown credit claimed

in the 15% plan and is now claiming 2.0 tons per day (TPD) rather than

the 3.4 TPD claimed in the September 12, 1996 submittal. The revised

charts and tables pertain to these corrections. These revisions occur

in Figure 1.2, Table 5.3, Section 6.1.1, Table 6.3 and Section 6.2.3 of

the Commonwealth's addendum to its 15% plan..

EPA's evaluation of the April 10, 1997 addendum submitted by

Pennsylvania is detailed in the technical support document (TSD) that

is part of the docket to this rulemaking. Briefly, EPA has determined

that Pennsylvania has resolved the inconsistencies with the 1990 VOC

emissions inventory, with the exception of those certain source

emissions at United States Steel--Fairless (USX--Fairless) located in

Bucks County. Consequently, EPA is approving the 1990 VOC emission

inventory submitted on September 12, 1996 for the Philadelphia

nonattainment area, with the exception of certain sources located at

USX--Fairless. These sources are identified as: 1) no. 3 blast furnace

(source no. 243), 2) no.1 open hearth furnace (source no. 251), 3) no.1

soaking pits (20) (source no. 300), 4) no.2 soaking pits (1-8) (source

no. 330), 5) no.2 soaking pits (9-16) (source no. 338), and 6) 80 in.

Hot strip mill (source no. 351). The 1990 VOC emissions for the above-

named sources at USX--Fairless were approved by EPA in a previous

rulemaking notice (April 9, 1996, 61 FR 15709). That version of the

1990 VOC emissions for the above-named sources at USX--Fairless remains

SIP approved.

Pennsylvania has satisfactorily documented the emission reduction

credits due to shutdowns and over control with the exception of those

credits claimed for following four sources: Congoleum (NEDS ID 0049),

Sun R&M (NEDS ID 0025), Rohm & Haas (NEDS ID 0009), and BP Oil (NEDS ID

0030). EPA has recalculated the available emission reduction credit

from shutdown and over controlled sources based on the April 10, 1997

documentation and is approving an emission credit of 1.82 TPD for the

Philadelphia 15% plan. This is less than the 3.4 TPD figure in the

September 12, 1996 Pennsylvania submittal and the 2.0 TPD figure in the

April 10, 1997 addendum. The lesser amount of these credits does not

jeopardize the ability of Pennsylvania to meet the 15% target level of

emissions required by the Act. As a result of the additional

documentation provided by Pennsylvania on April 10, 1997, Pennsylvania

has satisfied conditions 1 through 3 listed in the notice of proposed

rulemaking. The remaining conditions (4 and 5) pertain to the

inspection and maintenance (I/M) rule. Pennsylvania expects to satisfy

those conditions within the required time frames.

II. Public Comments and Response

As a result of the March 11, 1997 proposed rulemaking notice, EPA

received comments from the Clean Air Council (CAC). The comments and

EPA's responses follow below.

Comment 1: CAC agrees with EPA's assessment that the Philadelphia

15% plan contains various defects and cannot be determined to achieve

the 15% reduction required by the Act. CAC, however, states that these

defects preclude approval of the 15% plan.

Response 1: As described above, Pennsylvania's April 10, 1997

addendum to its September 12, 1996 submittal resolves the emission

inventory and creditability issues discussed in EPA's proposed

rulemaking notice. As a result, EPA has determined that Pennsylvania

has satisfied conditions 1 through 3 listed in the March 11, 1997

proposed rulemaking notice (62 FR 11131). The remaining conditions

pertain to I/M and allow Pennsylvania additional time in accordance

with the National Highway Systems Designation Act. Consequently, the

defects identified in the March 1997 proposed rulemaking notice have

been remedied.

Comment 2: CAC commented that the Philadelphia plan, which takes

credit for federal control measures such as architectural and

industrial maintenance coating, consumer/commercial products and

autobody refinishing, should not be approved because those federal

control measures have not yet been promulgated. CAC states that

allowing such credit violates section 182(b)(1)(C) of the Act. CAC

further commented that EPA cannot lawfully base SIP decisions on as-yet

unpromulgated rules because it does not know what these final rules

will say. CAC contends that allowing credit on as-yet unpromulgated

rules, even with the caveat that the states must revisit the rule later

if the federal rules turn out differently than predicted, amounts to an

unlawful extension of a SIP

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submission deadline. CAC stated that EPA must base its decision on the

record before it at the time of its decision; not on some record that

the agency hopes will exist in the future.

Response 2: Section 182(b)(1)(A) of the Act requires states to

submit their 15% SIP revisions by November, 1993. Section 182(b)(1)(C)

of the Act provides the following general rule for creditability of

emissions reductions towards the 15% requirement:

Emissions reductions are creditable toward the 15 percent

required, to the extent they have actually occurred, as of

[November, 1996], from the implementation of measures required under

the applicable implementation plan, rules promulgated by the

Administrator, or a permit under Title V.

This provision further indicates that certain emissions reductions

are not creditable, including reductions from certain control measures

required prior to the 1990 Amendments.

This creditability provision is ambiguous. Read literally, it

provides that although the 15% SIPs are required to be submitted by

November 1993, emissions reductions are creditable as part of those

SIPs only if ``they have actually occurred, as of [November 1996].''

This literal reading renders the provision internally inconsistent.

Accordingly, EPA believes that the provision should be interpreted to

provide, in effect, that emissions reductions are creditable ``to the

extent they will have actually occurred, as of [November, 1996], from

the implementation of [the specified measures]'' (the term ``will'' is

added). This interpretation renders the provision internally

consistent.

Section 182(b)(1)(C) of the Act explicitly includes as creditable

reductions those resulting from ``rules promulgated by the

Administrator''. This provision does not state the date by which those

measures must be promulgated, i.e., does not indicate whether the

measures must be promulgated by the time the 15% SIPs were due

(November, 1993), or whether the measures may be promulgated after this

due date.

Because the statute is silent on this point, EPA has discretion to

develop a reasonable interpretation, under Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). EPA believes it is

reasonable to interpret section 182(b)(1)(C) of the Act to credit

reductions from federal measures as long as those reductions are

expected to occur by November, 1996, even if the federal measures are

not promulgated by the November 1993 due date for the 15% SIPs.

EPA's interpretation is consistent with the congressionally

mandated schedule for promulgating regulations for consumer and

commercial products, under section 182(e) of the Act. This provision

requires EPA to promulgate regulations controlling emissions from

consumer and commercial products that generate emissions in

nonattainment areas. Under the schedule, by November, 1993-- the same

date that the states were required to submit the 15% SIPs--EPA was to

issue a report and establish a rulemaking schedule for consumer and

commercial products. Further, EPA was to promulgate regulations for the

first set of consumer and commercial products by November 1995. It is

reasonable to conclude that Congress anticipated that reductions from

these measures would be creditable as part of the 15% SIPs, as long as

those reductions were to occur by November 1996.

Crediting reductions from federal measures promulgated after the

due date for the 15% SIPs is also sensible from an administrative

standpoint. Crediting the reductions allows the states to accurately

plan to meet the 15% reduction target from the appropriate level of

state and federal measures. Not crediting such reductions would mean

that the states would have to implement additional control requirements

to reach the 15% mark; and that SIPs would result in more than a 15%

level of reductions once the federal measures in question were

promulgated and implemented. At that point in time, the state may seek

to eliminate those additional SIP measures on grounds that they would

no longer be necessary to reach the 15% level. Such constant revisions

to the SIP to demonstrate 15% is a paper exercise that exhausts both

the states' and EPA's time and resources.

The fact that EPA cannot determine precisely the amount of credit

available for federal measures not yet promulgated does not preclude

granting the credit. The credit can be granted as long as EPA is able

to develop reasonable estimates of the amount of VOC reductions from

the measures EPA expects to promulgate. EPA believes that it is able to

develop reasonable estimates, particularly because it has already

proposed and taken comment on the measures at issue, and expects to

promulgate final rules by the spring of 1998. Many other parts of the

SIP, including state measures, typically include estimates and

assumptions concerning VOC amounts, rather than actual measurements.

For example, EPA's document to estimate emissions, ``Compilation of Air

Pollutant Emission Factors,'' January 1995, AP-42, provides emission

factors used to estimate emissions from various sources and source

processes. AP-42 emission factors have been used, and continue to be

used, by states and EPA to determine base year emission inventory

figures for sources and to estimate emissions from sources where such

information is needed. Estimates in the expected amount of VOC

reductions are commonly made in air quality plans, even for those

control measures that are already promulgated. Moreover, the fact that

EPA is occasionally delayed in its rulemaking is not an argument

against granting credits from these measures. The measures are

statutorily required, and states and citizens could bring suit to

enforce the requirements that EPA promulgate them. If the amount of

credit that EPA allows the state to claim turns out to be greater than

the amount EPA determines to be appropriate when EPA promulgates the

federal measures, EPA intends to take appropriate action to require

correction of any shortfall in necessary emissions reductions that may

occur.

The above analysis focuses on the statutory provisions that include

specific dates for 15% SIP submittal (November 1993) and implementation

(November 1996). These dates have expired, and EPA has developed new

dates for submittal and implementation. EPA does not believe that the

expiration of the statutory dates, and the development of new ones, has

implications for the issue of whether reductions from federal measures

promulgated after the date of the 15% SIP approval may be counted

toward those 15% SIPs. Although the statutory dates have passed, EPA

believes that the analysis described above continues to be valid.

Comment 3: CAC commented that EPA cannot ignore the November 15,

1996 statutory deadline simply because the deadline is now behind us.

It contends that EPA's and states' unlawful delays have prevented

compliance with the November 15, 1996 deadline and that EPA cannot now

jettison the statutory deadlines by substituting the ``as soon as

practicable'' test; rather, CAC states EPA must require compliance with

an ``as soon as possible'' test and fix a compliance deadline. The

commenter cited various court decisions in an effort to support its

formulation of the ``as soon as possible'' test.

Response 3: The case law cited by the commenter considers various

circumstances, such as failure by EPA to promulgate rules on the

statutorily mandated deadline or to take action on

[[Page 31346]]

state failures to make SIP submissions on the statutorily mandated

deadline. See, e.g., Natural Resources Defense Council v. EPA, 22 F.3d

1125 (D.C. Cir. 1994), Natural Resources Defense Council v. Train, 510

F.2d 692 (D.C. Cir. 1975). These cases articulate various formulations

of the standards by which the courts establish new deadlines. EPA

believes that its formulation of the standard by which States must

achieve the 15% reductions--``as soon as practicable''--is generally

consistent with the case law.

Further, EPA believes that Pennsylvania has demonstrated that it

has met this standard. The notice of proposed rulemaking, the TSD, and

other documents in the record establish that implementation of various

15% measures including the I/M program is as soon as practicable. The

main reasons for the delays in the development and implementation of

Pennsylvania's 15% SIP relate to its enhanced I/M plan. Most recently,

these enhanced I/M delays were closely associated with the enactment,

in November, 1995, of the National Highway Systems Designation Act

(NHSDA). The NHSDA afforded states the opportunity to revise their I/M

plans in a manner that would be treated as meeting certain EPA

requirements on an interim basis. The NHSDA provided additional time

for the Commonwealth and EPA to develop and process the revised I/M

plans. The Commonwealth acted expeditiously in developing and

implementing a revised enhanced I/M program. However, the delays in

developing and implementing the NHSDA I/M program rendered impossible

achieving the 15% reduction target by the end of 1996.

Moreover, EPA has reviewed other VOC SIP measures that are at least

theoretically available to Pennsylvania, and has concluded that

implementation of any such measures that might be appropriate would not

accelerate the date of achieving the 15% reductions.

EPA agrees with the commenter that in this particular case, a fixed

deadline is appropriate. Accordingly, EPA will establish November 15,

1999, as the date by which the 15% measures must be implemented to the

extent necessary to generate the required amount of reductions.

Comment 4: Any further delays in implementing VOC control measures,

including most prominently, enhanced I/M, must not be tolerated. For I/

M, EPA's deadline must require implementation in the shortest time in

which it is logistically possible to get the testing systems up and

running. The National Highway Designation Act does not mention the 15%

plan or authorize any delay of the achievement of the 15% emission

reduction. Furthermore, missing the November 15, 1996 deadline

unlawfully rewards states for failure to meet the deadline by giving

them increased credits under national programs such as the Tier I

Federal Motor Vehicle Control Program. CAC argues that such an approach

unlawfully delays the achievement of clean air by allowing the states

to reduce their own emission control efforts by the amount of the post-

November 1996 fleet turnover benefits. Consequently, EPA must deny the

post-November 1996 Tier I credit and require states to adopt emission

reductions to compensate for post-1996 VMT growth.

CAC further argues that EPA cannot delay the section 182(b)(1)

requirement for states to account for growth in the 15% plans to the

post-1996 rate-of-progress plans. Particularly because the post-1996

plans involve potential NOX substitution that is not

permitted in the VOC-only 15% plans.

Response 4: EPA disagrees with the comment. The National Highway

Systems Designation Act was enacted by Congress in November of 1995.

Section 348 of this statute provided states renewed opportunity to

satisfy the Act's requirements related to the network design for I/M

programs. States were not only granted the flexibility to enact test-

and-repair programs, but were provided additional time to develop those

programs and to submit proposed regulations for interim SIP approval.

Pennsylvania moved rapidly to propose I/M regulations on March 16,

1996, and to submit to EPA a SIP containing those regulations, under

the authority granted by the NHSDA.

Under the terms of the 15% requirement in section 182(b)(1)(A)(I)

of the Act, the SIP must--

provide for [VOC] emission reductions, within 6 years after the date

of enactment of the Clean Air Act Amendments of 1990, of at least 15

percent from baseline emissions, accounting for any growth in

emissions after [1990].

EPA interprets this provision to require that a specific amount of

VOC reductions occur, and has issued guidance for computing this

amount. The Commonwealth, complying with this guidance, has determined

the amount of the required VOC reductions needed to meet the 15% goal.

It is no longer possible for the Commonwealth to implement measures to

achieve this level of reduction as the November 15, 1996 date provided

under the 15% provisions has passed. Accordingly, EPA believes that the

Commonwealth will comply with the statutory mandate as long as

Pennsylvania achieves the requisite level of reductions on an as-soon-

as-practicable basis after 1996. In computing the reductions, EPA

believes it acceptable for states to count reductions from federal

measures, such as vehicle turnover, that occur after November 15, 1996,

as long as they are measures that would be creditable had they occurred

prior to that date. These measures result in VOC emission reductions as

directed by Congress in the Act; therefore, these measures should count

towards the achievement --however delayed--of the 15% VOC reduction

goal.

EPA does not believe states are obligated, as part of the 15% SIP,

to implement further VOC reductions to offset increases in VOC

emissions due to post-1996 growth. As noted above, the 15% requirement

mandates a specific level of reductions. By counting the reductions

that occur through measures implemented pre- and post-1996, SIPs may

achieve this level of reductions. Although section 182(b)(1)(A)(I),

quoted above, mandates that the SIPs account for growth after 1990, the

provision does not, by its terms, establish a mechanism for how to

account for growth, or indicate whether, under the present

circumstances, post-1996 growth must be accounted for. EPA believes

that its current requirements for the 15% SIPs meet section

182(b)(1)(A)(I). In addition, although post-1996 VOC growth is not

offset under the 15% SIPs, such growth must be offset in the post-1996

plans required for serious and higher classified areas to achieve 9% in

VOC reductions every three years after 1996 (until the attainment

date). The fact that these post-1996 SIPs may substitute NOX

reductions for VOC reductions in the 1996-1999 period does not

undermine the integrity of the 15% SIPs. Allowing NOX

substitution is fully consistent with the public health-based goals of

the Act.

Under EPA's approach, post-1996 growth will be accounted for in the

plans that Congress intended to take account of such growth--the post-

1996 ``rate of progress'' SIPs. To shift the burden of accounting for

such growth to the 15% plans, as the commenters would have EPA do,

would impose burdens on states above and beyond what Congress

contemplated would be imposed by the 15% requirement (which was

intended to have been achieved by November 1996). In the current

situation, where it is clearly impossible to achieve the target level

of VOC reductions (a 15% reduction taking into account growth through

November 1996) by November 1996, EPA believes that its approach is a

reasonable and

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appropriate one. It will still mean that post-1996 growth is taken into

account in the SIP revisions Congress intended to take into account

such growth and it means that the target level of VOC reductions will

be achieved as soon as practicable. Once the post-1996 rate of progress

plans are approved and implemented, areas will have achieved the same

level of progress that they were required to have achieved through the

combination of 15% and rate of progress requirements as was originally

intended by Congress.

Comment 5: EPA cannot approve SIPs if the state has failed to

demonstrate approvability. In this regard, EPA has not been able to

verify Pennsylvania's mobile source emission reduction credits but has

stated that it has no reason to believe that Pennsylvania's methodology

is flawed and is therefore approving the Philadelphia 15% plan. CAC

stated that an absence of information requires disapproval.

Response 5: EPA believes Pennsylvania has demonstrated that it has

appropriately modeled its mobile source program benefits, through

proper use of EPA's MOBILE emissions factor estimation model, combined

with state vehicle miles of travel estimates. Due to the sheer

magnitude the modeling task (i.e. the large number of modeling

scenarios needed to compile inventories and evaluate emissions

benefits) Pennsylvania faced when developing mobile source inventories

and modeling the benefits of various mobile source programs, the

Commonwealth utilized a post-processor model to run the numerous MOBILE

modeling scenarios needed to characterize these emissions. It is not

practical to submit the hundreds or even thousands of modeling input

and output runs needed to evaluate the mobile source-related portions

of the 15% rate-of-progress SIP.

Pennsylvania instead submitted to EPA a list of the variables and

assumptions utilized in its MOBILE modeling analysis, along with sample

model input and output scenarios. Additionally, the Commonwealth

submitted a demonstration of how the post-processor utilized MOBILE to

generate composite index factors for use in determining mobile source

emission factors for the Philadelphia area. Finally, the Commonwealth

tallied mobile source emissions in summary tables for various programs,

by county, etc. to present the results of its analysis.

While the SIP does not contain sufficient data to reconstruct the

analysis and, therefore, to independently verify the Commonwealth's

claims stemming from the mobile source emissions analysis, EPA believes

the Commonwealth's modeling methodology is sound. However, EPA has

deferred the specific results of that modeling, in part, to the

Commonwealth.

Comment 6: EPA has pointed out information gaps in the Pennsylvania

submittal, including the finding that Pennsylvania did not follow

standard guidance and methodologies for projecting growth in the 1996

inventory. EPA has also stated that there is a potential double

counting issue related to emission credits but that it is not

conditioning the approval of the Philadelphia 15% plan on these issues.

CAC argued that these deficiencies speak to the heart of the

calculation of the target emission reduction level and whether the

claimed emission reductions are sufficient to meet that level.

Therefore, although CAC believes that the Philadelphia 15% plan should

be disapproved, at a minimum, it argues that the resolution of these

deficiencies should be made additional conditions that the Commonwealth

must satisfy for the 15% plan approval.

Response 6: EPA has acknowledged the potential double counting of

emission reductions in the Philadelphia 15% plan as part of its honest

effort to credibly account for activities associated with the operation

of the Pennsylvania emissions bank. The use of Bureau of Economic

Analysis (BEA) growth factors, recommended by EPA guidance, did not

contemplate the net effect on emissions accounting where there is an

operational emissions bank. Since most states in the nation do not have

approved emissions bank, this was not an issue of widespread concern or

discussion. Pennsylvania's use of the BEA growth factors and the

operation of an emissions bank are both permitted by EPA. The effect of

the combined use of the BEA growth factors and the operation of the

emissions bank is, however, uncertain. EPA shall address this issue in

subsequent air quality plans for Pennsylvania.

III. Creditable Measures

The control measures described below are creditable toward the rate

of progress requirements of the Act. Pennsylvania takes emission credit

toward the 15% requirement through implementation of the following

required programs: (1) Federal reformulated gasoline, (2) reformulated

gasoline--nonroad, (3) I/M FMVCP/Tier I, and (4) Stage II vapor

recovery. Pennsylvania also takes emission credit toward the 15%

requirement through the implementation of the following programs: (1)

Federal architectural and industrial maintenance coating regulation

(national rule), (2) treatment, storage and disposal facility (TSDF)

controls (hazardous waste rule with air emission reductions), (3)

autobody refinishing national rule, (4) consumer and commercial

products national rule, and (5) facility shutdowns/over control.

Further details regarding EPA's review of the Commonwealth's

control measures are contained in the TSD for this rulemaking action.

Summary of Creditable Emission Reductions for the Philadelphia Ozone

Nonattainment Area (tons/day)

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

Required reduction for the Philadelphia area 123.64

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

Creditable Reductions:

Shutdown credits............................................ 1.83

AIM Coatings Rules.......................................... 7.28

Consumer/Commercial Products................................ 6.58

TSDF Controls............................................... 9.35

Autobody refinishing........................................ 6.30

Stage II vapor recovery..................................... 17.02

Federal Reformulated gasoline............................... 26.48

Reformulated gasoline--nonroad.............................. 0.59

FMVCP (Tier I).............................................. 1.08

Inspection and Maintenance (I/M)............................ 49.74

---------

Total................................................... 126.24

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

IV. Conditions for Approval

EPA has evaluated this submittal for consistency with the Act,

applicable EPA regulations, and EPA policy. In the March 11, 1997

proposed rulemaking notice, EPA listed five conditions, which

Pennsylvania is required to meet, within 12 months of the final

rulemaking notice, in order to obtain approval of the Philadelphia 15%

plan and 1990 VOC emission inventory. These conditions are:

(1) Reconcile the 1990 VOC emissions inventory with all the

appendices, tables and narratives throughout the 15% document, wherever

emissions are cited;

(2) After establishing consistent figures as described in 1) above,

provide sample calculations for point source 1990, 1990 adjusted, and

1996 projected emissions showing how each of these figures were

obtained. The level of documentation must be equivalent to that

required for approval of a 1990 emissions inventory as described in the

emission inventory documents at the beginning of this technical support

document;

(3) Provide additional documentation for the emissions for those

sources categories where credit is claimed (shutdowns, TSDFs);

(4) Provide a written commitment to remodel the I/M program as

implemented in the Philadelphia

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nonattainment area in accordance with EPA guidance (December 23, 1996

memo entitled ``Modeling 15% VOC Reductions from I/M in 1999--

Supplemental Guidance); and

(5) Fulfill the conditions listed in the I/M SIP rulemaking notice

(proposed October 3, 1996, 61 FR 51638; final rule, January 28, 1997,

62 FR 4004) and summarized here as: (a) geographic coverage and program

start dates, (b) program evaluation, (c) test types, test procedures

and emission standards, (d) test equipment specifications, and (e)

motorist compliance enforcement.

By its April 10, 1997 addendum, Pennsylvania has met conditions 1,

2, and 3. Although the full amount of emission reduction credit in some

cases could not be substantiated with the Pennsylvania documentation,

EPA is satisfied that the documentation supports the position that the

amount of credits being approved now by EPA is adequately verified. The

emission reductions from the enhanced I/M program that is subject to

the National Highway Systems Designation Act with its extended

deadlines are required in order for the required 15% emission reduction

to be achieved in the Philadelphia nonattainment area. Under the

National Highway Systems Designation Act of 1995, Pennsylvania's

enhanced I/M program is receiving a conditional interim approval. As

such, EPA can, at best, propose conditional interim approval of the

Philadelphia 15% plan. In its April 10, 1997 letter, Pennsylvania

agreed to meet conditions 4 and 5 that pertain to I/M within the

required time frames.

As conditions 4 and 5 remain unfulfilled, EPA cannot grant full

approval of the Philadelphia 15% rate-of-progress plan under section

110(k)(3) and Part D of the Clean Air Act. Instead, EPA is granting

conditional interim approval of this SIP revision under section

110(k)(4) of the Act, because the Commonwealth must meet the specified

conditions and supplement its submittal to satisfy the requirements of

section 182(b)(1) of the Act regarding the 15 percent rate-of-progress

plan, and because the Commonwealth must supplement its submittal and

demonstrate it has achieved the required emission reductions. In

addition, EPA is approving the 1990 VOC base year emissions inventory

for the Philadelphia ozone nonattainment area, submitted with the 15%

plan on September 27, 1996, with the exception of the revisions to the

emissions for USX--Fairless (Bucks County) that were previously

approved by EPA (April 9, 1996, 61 FR 15709). EPA is not taking any

rulemaking action regarding the contingency plan submitted by

Pennsylvania in response to the requirement of section 172(c)(9) of the

Act. The contingency plan will be the subject of a separate rulemaking

notice. EPA is also not taking any rulemaking action at this time with

regard to the 1990 NOX emission inventory submitted with the

September 1996 15% plan. The 1990 NOX emission inventory

will also be the subject of a separate rulemaking notice.

The Commonwealth submitted the required written commitment to EPA

on April 10, 1997. In addition, the Commonwealth submitted additional

documentation to fully satisfy conditions 1 through 3 and the necessary

written commitment to complete condition 4 in the time frame required.

The remaining unsatisfied conditions or portions of conditions must

be satisfied by June 9, 1998.

Final Action

EPA is granting conditional interim approval of the Philadelphia

15% plan and approval of the 1990 VOC emission inventory as a revision

to the Pennsylvania SIP. By today's action, EPA is granting approval to

emission credits for the Philadelphia 15% plan on an interim basis,

pending verification of the enhanced I/M Program's performance,

pursuant to section 348 of the NHSDA. This interim approval of the 15%

plan will expire at the end of the 18 month period, and will be

replaced by appropriate EPA action based on the evaluation EPA receives

concerning the program's performance. If the evaluation indicates a

shortfall in emission reductions compared to the remodeling that the

15% plan is conditioned on, the Commonwealth will need to find

additional emission credits. Failure of the Commonwealth to make up for

an emission shortfall from the enhanced I/M program may subject the

Commonwealth to sanctions and imposition of a Federal Implementation

Plan. EPA has already approved the Pennsylvania enhanced I/M program on

a conditional interim basis (January 28, 1997, 62 FR 4004). This

approval of the Pennsylvania enhanced I/M program was taken under

section 110 of the Act and, although the credits provided by this

program may expire, the approval of the I/M regulations does not

expire. As explained above, the credits provided by the enhanced I/M

program on an interim basis for the 15% plan may be adjusted based on

EPA's evaluation of the enhanced I/M program's performance.

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.

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 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.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, EPA

certifies that it does not have a significant impact on any small

entities affected. Moreover, due to the nature of the Federal-State

relationship under the Act, preparation of a flexibility analysis would

constitute Federal inquiry into the economic reasonableness of state

action. The Clean Air Act forbids EPA to base its actions concerning

SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,

255-66 (1976); 42 U.S.C. 7410(a)(2).

Conditional approvals of SIP submittals under section 110 and

subchapter I, part D of the Act do not create any new requirements but

simply approve requirements that the State is already imposing.

Therefore, because the federal SIP approval does not impose any new

requirements, EPA certifies that it does not have a significant impact

on any small entities affected. Moreover, due to the nature of the

federal-state relationship under the Act, preparation of a flexibility

analysis would constitute federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA

[[Page 31349]]

to base its actions concerning SIPs on such grounds. Union Electric Co.

v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

If the conditional approval is converted to a disapproval under

section 110(k), based on the State's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new federal requirement.

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 nor does it substitute a new

federal requirement.

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 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 pre-

existing requirements under State or local law, and imposes no new

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

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

Under section 801(a)(1)(A) as added 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).

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

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by August 8, 1997. 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, pertaining to the final conditional

interim approval of the 15% plan for the Pennsylvania portion of the

Philadelphia ozone nonattainment area and the approval of the 1990 VOC

emission inventory (with the exception of the revisions to the

inventory of emissions for selected sources at USX--Fairless) for the

same area, 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,

Ozone, Reporting and record keeping requirements.

Dated: May 30, 1997.

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 52.2026 is amended by adding paragraph (c) to read as

follows:

Sec. 52.2026 Conditional Approval.

* * * * *

(c) The Commonwealth of Pennsylvania's September 12, 1996 submittal

for the 15 Percent Rate of Progress Plan (15% plan) for the

Pennsylvania portion of the Philadelphia ozone nonattainment area, is

conditionally approved based on certain contingencies, for an interim

period. The condition for approvability is as follows:

Pennsylvania must meet the conditions listed in the January 28,

1997 conditional interim Inspection and Maintenance Plan (I/M)

rulemaking notice, remodel the I/M reductions using the EPA guidance

memo: ``Modeling 15 Percent VOC Reductions from I/M in 1999--

Supplemental Guidance'', memorandum from Gay MacGregor and Sally

Shaver, dated December 23, 1996.

3. Section 52.2036 is amended by adding paragraph (i) to read as

follows:

Sec. 52.2036 1990 Base year Emission Inventory

* * * * *

(i) The 1990 VOC emission inventory for the Philadelphia ozone

nonattainment area, submitted on September 12, 1996 by Pennsylvania

Department of Environmental Protection, is approved, with the exception

of the revisions to the emission inventory for those sources at United

States Steel--Fairless that were approved in Sec. 52.2036 (b) on April

9, 1996.

[FR Doc. 97-14987 Filed 6-6-97; 8:45 am]

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