Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54143

30.21′ N, 084° 20′ W (these coordinates

are on opposite sides of the St. Mary’s

River and east of the Sault Locks);

proceeding in a westerly direction,

encompassing all waters in the river

along the St. Mary’s River and St.

Mary’s Falls Canal past the Sault Locks,

to a line drawn from 46°29.86′ N, 084°

23′ W to 46° 30.27′ N, 084° 23′ W (these

coordinates are on opposite sides of the

St. Mary’s River, west of the Sault

locks). These coordinates are based

upon North American Datum 1983

(NAD 83).

(b) Effective dates. This section is

effective from 1 p.m. October 11, 2001

until 1 p.m. June 15, 2002.

(c) Regulations. (1) In accordance with

the general regulations in § 165.33 of

this part, entry into this zone is

prohibited unless authorized by the

Coast Guard Captain of the Port, Sault

Ste. Marie, Michigan. The general

regulations of § 165.33 of this part

apply.

(2) Persons desiring to transit the area

of the security zone must first notify the

Captain of the Port Sault Ste. Marie via

the Vessel Traffic Service (VTS) at

telephone number (906) 635–3232 or on

VHF channel 12 (156.6 MHz) or VHF

channel 14 (156.7 MHz) and receive

permission to transit the area. Approval

will be made on a case-by-case basis.

(3) All persons and vessels shall

comply with the instructions of the

Captain of the Port Sault Ste. Marie or

the designated on-scene patrol

personnel.

Dated: October 11, 2001.

C. S. Gordon,

Captain, U.S. Coast Guard, Captain of the

Port Sault Ste. Marie, MI.

[FR Doc. 01–27053 Filed 10–25–01; 8:45 am]

BILLING CODE 4910–15–U

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[PA–4185; FRL–7089–2]

Approval and Promulgation of Air

Quality Implementation Plans;

Pennsylvania; Post 1996 Rate-ofProgress Plan and One-Hour Ozone

Attainment Demonstration for the

Philadelphia-Wilmington-Trenton

Ozone Nonattainment Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is approving the

State Implementation Plans (SIPs)

consisting of the Post 1996 rate-ofprogress (ROP) plans and the one-hour

ozone attainment demonstration for the

Philadelphia-Wilmington-Trenton

severe nonattainment area (the

Philadelphia area). These control

strategy plans were submitted by the

Pennsylvania Department of

Environmental Protection (PADEP). The

measures that have been adopted by the

Commonwealth which comprise the

control strategies of the Post-1996 ROP

plans and the one-hour ozone

attainment demonstration have and will

result in significant emission reductions

of volatile organic compounds (VOCs)

and oxides of nitrogen ( NOX) in the

Philadelphia area. The intended effect

of this action is to approve these SIP

revisions as meeting the requirements of

the Clean Air Act (CAA or the Act). The

Philadelphia area is comprised of two

counties in Delaware, one county in

Maryland, seven counties in New Jersey,

and five counties in Pennsylvania,

namely Bucks, Chester, Delaware,

Montgomery, and Philadelphia

counties.

DATES: This final rule is effective on

November 26, 2001.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the Air Protection

Division, U.S. Environmental Protection

Agency, Region III, 1650 Arch Street,

Philadelphia, Pennsylvania 19103;

Pennsylvania Department of

Environmental Protection, Bureau of Air

Quality, P.O. Box 8468, 400 Market

Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Jill

Webster, (215) 814–2033 at the EPA

Region III office above or by e-mail at

Webster.Jill@epa.gov.

SUPPLEMENTARY INFORMATION:

This SUPPLEMENTARY INFORMATION

section is organized to address the

following questions:

A. What action is EPA taking in this final

rulemaking?

B. What previous action has been proposed

on these SIP Revisions?

C. What were the conditions for approval

provided in the Notice of Proposed

Rulemaking for the attainment

demonstration?

D. What amendments to the attainment

demonstration SIP did Pennsylvania submit

for the Philadelphia area since December 16,

1999?

E. What did the Supplemental Notices of

Proposed Rulemaking cover?

F. When did EPA make a determination

regarding the adequacy of the Motor Vehicle

Emissions Budgets for the Philadelphia area?

G. Upon what SIP elements did EPA need

to take final action before or concurrently

with full approval of the attainment

demonstration could be granted?

H. What measures are in the control

strategy for the Post 1996 plan and the

attainment demonstration?

I. What are the approved transportation

conformity budgets, and what effects does

this action have on transportation planning?

J. What happens to the approved 2005

budgets when States change their budgets

using the MOBILE6 Model?

K. What is the Status of Pennsylvania’s

New Source Review (SIP)?

L. What comments were received on the

proposed approvals and how has EPA

responded to them?

A. What Action Is EPA Taking in This

Final Rulemaking?

EPA is fully approving as meeting the

requirements of section 182(c)(2) and (d)

of the Act, the Post 1996 ROP plans and

the one-hour attainment demonstration

SIP, demonstrating attainment by

November 2005, which were submitted

by Pennsylvania for the Philadelphia

area. The following tables identify

submittal dates and amendment dates

for the Post 1996 ROP plans and the

attainment demonstration:

TABLE 1.—SUMMARY OF ATTAINMENT DEMONSTRATION SUBMITTAL DATES

Date Content

Initial submittal ................................ April 30, 1998 ................................ Attainment demonstration.

Amendment ..................................... August 21, 1998 ............................ Supplement to the Attainment Demonstration for Regional Scale

Modeling.

Amendment ..................................... February 25, 2000 ......................... Revised Motor Vehicle Emissions Budgets to Include Benefits from

the National Low Emission Vehicle (NLEV) Program and Heavy

Duty Diesel Engine (HDDE) Rule.

54144 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

TABLE 1.—SUMMARY OF ATTAINMENT DEMONSTRATION SUBMITTAL DATES—Continued

Date Content

Amendment ..................................... July 31, 1998 & .............................

February 25, 2000 .........................

Commitments to Adopt Needed Measures for Attainment.

Amendment ..................................... July 19, 2001 ................................. Revised Motor Vehicle Emission Budgets to Include the Benefits from

the Tier 2/Sulfur-in-fuel Rule.

Amendment ..................................... July 19, 2001 ................................. Reasonably Available Control Measures Analysis.

TABLE 2.—SUMMARY OF POST–1996 ROP SUBMITTAL DATES

Date Content

Initial submittal ................................ July 31, 1998 ................................. ROP thorough 1999.

Initial submittal ................................ April 30, 1998 ................................ ROP thorough 2005.

Amendment ..................................... February 25, 2000 ......................... Revised Motor Vehicle Emissions Budgets to Include Benefits from

the NLEV Program and HDDE Rule.

B. What Previous Action Has Been

Proposed on These SIP Revisions?

In a December 16, 1999 (64 FR 70428)

notice of proposed rulemaking (the

December 16, 1999 NPR), we proposed

approval of Pennsylvania’s 2005

attainment demonstration for the

Philadelphia area.

On February 22, 2000 (65 FR 8703),

EPA published a notice of availability

on guidance memoranda relating to the

ten one-hour ozone attainment

demonstrations (including the

Philadelphia area) proposed for

approval or conditional approval on

December 16, 1999. The guidance

memoranda are entitled: ‘‘Guidance on

Motor Vehicle Emissions Budgets in

One-Hour Ozone Attainment

Demonstrations’’ dated November 3,

1999, and ‘‘Guidance on the Reasonably

Available Control Measures (RACM)

Requirement and Attainment

Demonstration Submissions for Ozone

Nonattainment Areas’’ dated November

30, 1999.

On July 28, 2000 (65 FR 46383), EPA

published a supplemental notice of

proposed rulemaking (SNPR) on the

attainment demonstration. In that

supplemental notice, we clarified and

expanded on two issues relating to the

motor vehicle emissions budgets in

attainment demonstration SIP revisions.

This supplemental notice is discussed

in Section I.E. of this document.

On August 24, 2001 (66 FR 44568),

EPA published a NPR proposing to

approve Pennsylvania’s Post 1996 plans

for the Philadelphia area. We did not

receive any comments on that NPR. In

this final rulemaking action, we are

approving the Post 1996 ROP plans

submitted by Pennsylvania from 1996

through the 2005 attainment year.

On August 30, 2001 (66 FR 45797),

EPA published a SNPR on the

attainment demonstration. In that

supplemental notice, we proposed to

approve Pennsylvania’s analysis and

determination that there are no

additional reasonably available control

measures (RACM) for the area. We

received no comments on that SNPR.

Comments received on the December

16, 1999 (64 FR 70428) and July 28,

2000 (65 FR 46383) proposed actions

listed in this section relevant to the

Philadelphia area attainment

demonstration are discussed in Sections

I. K. and II.

C. What Were the Conditions for

Approval Provided in the Notice of

Proposed Rulemaking for the

Attainment Demonstration?

On December 16, 1999 (64 FR 70428),

we proposed approval of the attainment

demonstration submitted by the

Commonwealth of Pennsylvania for the

Philadelphia area. Our approval was

contingent upon certain actions by

Pennsylvania. These actions were to:

(1) Adopt and submit adequate motor

vehicle emissions budgets.

(2) Submit a list of control measures

that, when implemented, would be

expected to provide sufficient

additional emission reductions to

further reduce emissions to support the

attainment test and a commitment that

these measures would not involve

additional limits on highway

construction beyond those that could be

imposed under the submitted motor

vehicle emissions budget.

(3) Adopt and submit a rule(s) for the

regional NOX reductions consistent with

the modeling demonstration.

(4) Adopt and submit an enforceable

commitment(s), or a reaffirmation of

existing enforceable commitment to do

the following:

(a) Submit measures by October 31,

2001 for additional emission reductions

as required in the attainment

demonstration test, and for additional

emission reduction measures developed

through the regional process, submit an

enforceable commitment for the

additional measures and a backstop

commitment to adopt and submit

intrastate measures for the emission

reductions in the event the regional

process does not recommend measures

that produce emission reductions.

(b) Submit a revised SIP & motor

vehicle emissions budget by October 31,

2001 if additional measures affect the

motor vehicle emissions inventory.

(c) Submit revised SIP and motor

vehicle emissions budgets 1 year after

MOBILE6 issued.

(d) Perform a mid-course review by

December 31, 2001.

D. What Amendments to the Attainment

Demonstration SIP Did Pennsylvania

Submit for the Philadelphia Area Since

December 16, 1999?

Since December 16, 1999,

Pennsylvania has submitted a number of

amendments to the Pennsylvania SIP for

Philadelphia:

(1) On February 25, 2000, the

Commonwealth submitted the ‘‘State

Implementation Plan Revision to the

Philadelphia Ozone Nonattainment

Area’’ dated January, 2000. This

submittal contained the revised motor

vehicle emissions budgets for the Post

1996 ROP plans and the attainment

demonstration. The revised motor

vehicle emissions budgets reflected the

benefits achieved from the NLEV

program and the HDDE rule.

(2) In the February 25, 2000 submittal,

the Commonwealth included a

commitment to revise the motor vehicle

emissions budgets within one year after

the official release of the MOBILE 6

model.

(3) On February 25, 2000, the

Commonwealth also submitted a letter

reaffirming a previous commitment to

adopt additional measures needed to

reach attainment by October 31, 2001

Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54145

1 In the December 16, 1999 NPR, we proposed to

disapprove the attainment demonstration if

Pennsylvania did not submit motor vehicle

emissions budgets for this area that EPA could find

adequate by May 31, 2000 (see 64 FR at 70433). The

budgets subject to this May 31, 2000 deadline did

not necessarily have to account for Federal Tier 2/

Sulfur rle reductions. On February 25, 2000

Pennsylvania submitted a SIP revision that

included motor vehicle emissions budgets for the

2005 attainment year that did not include the

benefits of the Federal Tier 2/Sulfur rule. EPA had

determined that these budgets were adequate by the

May 31, 2000 deadline (June 8, 2000 at 65 FR

36438). Our findings of adequacy and responses to

comments can be accessed at www.epa.gov/otaq/

traq (once there, click on the ‘‘conformity’’ button).

and to revise the SIP and motor vehicle

emissions budgets by October 31, 2001

if the additional measures affect the

motor vehicle emissions inventory in

accordance with the requirements of the

CAA. In its February 25, 2000 letter, the

Commonwealth enclosed a copy of the

Southeastern Pennsylvania’s

Stakeholder’s report which includes a

list of potential control measures that

the work group identified and

considered during the Stakeholder’s

process.

(2) On July 19, 2001 the

Commonwealth submitted a revision to

its 2005 attainment demonstration SIP

which includes revised attainment year

motor vehicle emissions budgets for the

Philadelphia area. The revised motor

vehicle emissions budgets reflect the

benefits of the Tier 2/Sulfur rule

estimated for the Philadelphia area. The

Commonwealth also included in the

July 19, 2001 submittal a formal SIP

commitment to perform a mid course

review by December 31, 2003.

(3) On July 19, 2001, the

Commonwealth also submitted a

supplement to its 2005 attainment

demonstration SIP submittal consisting

of a RACM analysis and determination.

E. What Did the Supplemental Notices

of Proposed Rulemaking Cover?

(1) On July 28, 2000, EPA published

a supplemental notice of proposed

rulemaking (SNPR) on the 2005

attainment demonstration (65 FR

46383). In that supplemental notice, we

clarified and expanded on two issues

relating to the motor vehicle emissions

budgets in this attainment

demonstration SIP revision:

(a) First, we proposed a clarification

of what occurs if we finalize conditional

or full approval of this and certain other

attainment demonstration SIP revisions

based on a state commitment to revise

the SIP’s motor vehicle emissions

budgets in the future. Under the

proposal, the motor vehicle emissions

budgets in the approved SIP will apply

for transportation conformity purposes

only until the budgets are revised

consistent with the commitment and we

have found the new budgets adequate.

Once we have found the newly revised

budgets adequate, then they would

apply instead of the previous

conditionally or fully approved budgets.

Normally, revisions to approved budgets

cannot be used for conformity purposes

until we approve the revised budgets

into the SIP. Therefore, we proposed to

clarify that when our approval of this

and certain other 1-hour ozone

attainment demonstrations is based on a

commitment to future revisions to the

budget, our approval of the budget lasts

only until revisions to satisfy those

conditions are submitted and we find

them adequate.

(b) Second, we proposed that States

may opt to commit to revise their

emissions budgets 1 year after the

release of the MOBILE6 model, as

originally proposed on December 16,

1999; or, States may commit to a new

option, i.e., to revise their budgets 2

years following the release of the

MOBILE6 model, provided that

conformity is not determined without

adequate MOBILE6-derived SIP budgets

during the second year. This second

option did not affect the Philadelphia

area because Pennsylvania has

submitted an enforceable commitment

to revise the motor vehicle emissions

budgets within one year after the official

release of the MOBILE6 model.

(c) In addition, we reopened the

comment period to take comment on

these two issues and to allow comment

on any additional materials that were

placed in the dockets for the proposed

actions, close to or after the initial

comment period closed on February 14,

2000 (65 FR at 46383, July 28, 2000). For

many of the areas, additional

information had been placed in the

docket close to or since the initial

comment period concluded. In general,

these materials were identified as

consisting of motor vehicle emissions

budgets, and revised or additional

commitments or reaffirmations

submitted by the States (65 FR at 46387,

July 28, 2000).

(2) On August 24, 2001 (66 FR 44571),

EPA published a SNPR for

Pennsylvania’s attainment

demonstration for the Philadelphia area.

In that supplemental notice, we

proposed to approve Pennsylvania’s

revision to the motor vehicle emissions

budgets for the attainment year of 2005

which reflected the benefits of the

Federal Tier 2/Sulfur rule. In that SNPR,

we also proposed to approve the

Commonwealth’s formal SIP

commitment to perform a mid-course

review by December 31, 2003. We

received no comments on that SNPR.

(3) As noted earlier, on August 24,

2001 (66 FR 44568), EPA published a

NPR proposing to approve

Pennsylvania’s Post 1996 plans for the

Philadelphia area. We did not receive

any comments on that NPR. In this final

rulemaking action, we are approving the

Post 1996 ROP plans submitted by

Pennsylvania from 1996 through the

2005 attainment year.

(4) On August 30, 2001 (66 FR 45797),

EPA published a SNPR on the

attainment demonstration. In that

supplemental notice, we proposed to

approve Pennsylvania’s RACM analysis

and determination for the Philadelphia

area. We received no comments on that

SNPR.

F. When Did EPA Make a

Determination Regarding the Adequacy

of the Attainment Motor Vehicle

Emissions Budgets for the Philadelphia

Area?

Pennsylvania submitted a revision to

the attainment plan SIP for the

Philadelphia area on July 19, 2001. This

revision contained revised motor

vehicle emissions budgets for the

attainment year of 2005 that reflected

the benefits of the Federal Tier 2/Sulfur

rule.1

On August 24, 2001 (66 FR 44571), we

proposed to approve and proposed to

find adequate the budgets in

Pennsylvania’s July 19, 2001 submittal

of the revised attainment plan. Our

August 24, 2001 proposed rulemaking

opened a public comment period to take

comment on the approvability and

adequacy of the budgets. No public

comments were received pursuant to the

August 24, 2001 proposed rulemaking.

We are fully approving and making a

determination of adequacy in this final

rule for the budgets for the Pennsylvania

portion of the Philadelphia area

submitted on July 19, 2001.

Pennsylvania has an acceptable

commitment to revise the attainment

year motor vehicle emissions budgets

using the MOBILE6 model within one

year after the release of the MOBILE6

model, and EPA is approving that

commitment in this final rulemaking.

G. Upon What SIP Elements Did EPA

Need to Take Final Action Before Full

Approval of the Attainment

Demonstration Could be Granted?

In the December 16, 1999 NPR for the

Pennsylvania attainment demonstration

SIP, EPA noted in Tables 3 through 6

the status of many of the control

measures or part D requirements of the

Act for serious and severe areas. The

following provides the status of those

SIP elements which are relied on in the

attainment demonstration but which

54146 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

2Note that the 2005 ROP budgets do not include

the Federal Tier2/sulfur rule benefits. The 2005

attainment budgets do include the Federal Tier2/

sulfur rule benefits.

were not fully approved as of December

16, 1999:

(1) On December 28, 1999, EPA

approved Pennsylvania’s NLEV SIP (64

FR 72564).

(2) On June 6, 2000, EPA approved

Pennsylvania’s NOX OTC MOU Phase II

rule(65 FR 35842).

(3) On August 21, 2001, EPA

approved Pennsylvania’s NOX Budget

Rule (66 FR 43795).

(4) On August 24, 2001, EPA

approved Pennsylvania’s, 15 percent

VOC Reduction Plan (66 FR 44547).

(5) On October 15, 2001, EPA signed

a final rule converting its limited

approval of Pennsylvania’s generic NOX

and VOC RACT regulations to a full

approval as they apply in the

Philadelphia area. This final rule has

been or will be published in the Federal

Register in the near future.

As stated previously, in this final

rulemaking action, we are approving the

Post 1996 ROP plans submitted by

Pennsylvania from 1996 through the

2005 attainment year. These plans

demonstrate ROP for milestone years

1999, 2002, and 2005.

H. What Measures Are in the Control

Strategy for the Post-1996 Plans and the

Attainment Demonstration?

TABLE 3.—CONTROL MEASURES IN THE 1-HOUR OZONE POST–1996 ROP AND ATTAINMENT DEMONSTRATION FOR THE

PHILADELPHIA NONATTAINMENT AREA

Control measure Type of measure Credited in post–1996 plan for

which milestone years Credited in attainment plan

Enhanced Inspection & Maintenance.Approved SIP ............................... Yes—1999 through 2005 ............. Yes

Federal Motor Vehicle Control program.Federal .......................................... Tier 1—1999 through 2005 .......... Tiers 1 and 2

NLEV1 ............................................ Approved SIP opt-in ..................... Yes—1999 through 2005 ............. Yes

Reformulated Gasoline (Phase 1 &

2).

Federal .......................................... Phase 1—1999 .............................

Phase 2—2002 and 2005 ............

Phase 2

Federal Non-road Gasoline Engine

standards.

Federal .......................................... Yes—1999 through 2005 ............. Yes

Federal Non-road Heavy Duty diesel engine standards.Federal .......................................... Yes—1999 through 2005 ............. Yes

NOX RACT ..................................... Approved SIP ............................... Yes—1999 through 2005 ............. Yes

VOC RACT .................................... Approved SIP ............................... Yes—1999 through 2005 ............. Yes

Stage II Vapor Recovery & Onboard Refueling Vapor Recovery

(ORVR).

Approved SIP ...............................

Federal ..........................................

Yes—1999 through 2005 ............. Yes

AIM Surface Coatings .................... Federal .......................................... Yes—1999 through 2005 ............. Yes

Consumer & commercial products Federal .......................................... Yes—1999 through 2005 ............. Yes

Rule Effectiveness for Point

Sources 2.

Approved SIP ............................... Yes—1999 through 2005 ............. Yes

Shutdowns 2 ................................... Approved SIP ............................... Yes—1999 through 2005 ............. Yes

Autobody refinishing ...................... Federal/Approved SIP .................. Yes—1999 through 2005 ............. Yes

Treatment, Storage, and Disposal

Facilities.

Federal .......................................... Yes—1999 through 2005 ............. Yes

Heavy Duty Diesel Engines (Onroad).Federal .......................................... Yes—2005 .................................... Yes

Beyond RACT NOX Requirements

on Utilities.

Approved SIP ............................... Yes—1999 through 2005 ............. Yes

Notes:

1. To the extent NLEV not superseded by Tier 2.

2. These state initiatives and credits are approved as part the of the Post–96 ROP plan.

I. What Are the Approved

Transportation Conformity Budgets,

and What Effects Does This Action

Have on Transportation Planning?

(1) What Are the Approved

Transportation Conformity Budgets in

the Post-1996 ROP Plan and the

Attainment Demonstration?

EPA has determined that the budgets

in the Post–1996 ROP plan and the

attainment demonstration are adequate.

In this action EPA is approving these

budgets which are listed in Table 4. by

type of control strategy SIP.2 Table 4.

also provides the amounts of the

budgets in tons per day (TPD), the year

associated with the budgets, and the

effective date of EPA’s adequacy

determination for those budgets.

Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54147

TABLE 4.—TRANSPORTATION CONFORMITY BUDGETS FOR THE PHILADELPHIA AREA

Control strategy SIP Year VOC TPD NOX Date of adequacy determination

Post–1996 ROP Plan .......................................... 1999 88.6 109.6 June 23, 2000 (65 FR 36438, June 8, 2000)

Post–1996 ROP Plan .......................................... 2002 69.52 93.13 June 23, 2000 (65 FR 36438, June 8, 2000)

Post–1996 ROP Plan .......................................... 2005 61.76 86.42 June 23, 2000 (65 FR 36438, June 8, 2000)

Attainment Demonstration .................................. 2005 60.18 77.46 November 26, 2001

For a conformity analysis for year

2005, conformity must be shown to both

sets of 2005 budgets, which effectively

means that conformity must be

demonstrated to the lower of the 2005

budgets. For conformity analysis year

for any year after 2005, the attainment

demonstration budgets are the

applicable budgets.

EPA has concluded that these SIP

revisions meet the requirements of the

CAA applicable to the type of control

strategy SIP, that is, demonstrates

attainment or ROP, with the applicable

budgets and contains the measures

necessary to support these budgets. In

this final action, EPA is approving these

budgets.

(2) Is a Requirement to Redetermine

Conformity Within 18-months Under

Section 93.104 of the Conformity Rule

Triggered?

Our conformity rule establishes the

frequency by which transportation plans

and transportation improvement

programs must be found to conform to

the SIP and includes trigger events tied

to both submittal and approval of a SIP

(40 CFR 93.104(e)). Both initial

submission and initial approval trigger

a redetermination of conformity. This

final rule approves motor vehicle

emissions budgets contained in the

attainment demonstration and the Post

1996 ROP plans. We are advising

affected transportation planning

agencies that this final approval of the

budgets in listed in Table 3 will require

a re-determination that existing

transportation plans and TIPs conform

within 18 months of the effective date

listed in the DATE Section of this

document. See 40 CFR 93.104(e).

(3) What Happens to the Prior

Restrictions on the Use of the Benefits

of Federal Tier 2/Sulfur Rule in

Conformity Determinations

In our December 16, 1999 NPR, we

allowed States to submit motor vehicle

emissions budgets that did not reflect

the benefits of EPA’s Tier 2/Sulfur rule.

In that NPR, we explained that

conformity analyses in the Pennsylvania

portion of the Philadelphia area could

begin including Tier 2/Sulfur program

benefits once EPA’s Tier 2/Sulfur rule

was promulgated, provided that the

attainment demonstration SIP and

associated motor vehicle emissions

budgets include the Tier 2/Sulfur

benefits. For an area that requires all or

some portion of the Tier 2/Sulfur

benefits to demonstrate attainment but

had not yet included the benefits in the

motor vehicle emissions budgets, we

noted that our adequacy finding will

include a condition that conformity

determinations may not take credit for

Tier 2/Sulfur until the SIP budgets are

revised to reflect Tier 2/Sulfur benefits.

On February 25, 2000, the

Commonwealth submitted 2005-year

motor vehicle emissions budgets for the

Pennsylvania portion of the

Philadelphia area that did not include

the benefits from the Tier 2/Sulfur rule.

These 2005-year motor vehicle

emissions budgets applied to two

separate types of control strategy SIP

revisions: (1) rate-of-progress and (2)

attainment. On May 31, 2000 (Letter

from Katz to Salvaggio), EPA notified

PADEP that the motor vehicle emissions

budgets submitted on February 25, 2000

were adequate (see 65 FR 36438, June 8,

2000). That adequacy finding included

a condition precluding the use of the

emission reduction benefits from the

Tier 2/Sulfur rule in conformity

determinations.

As previously explained, on July 19,

2001, the Commonwealth submitted

revised motor vehicle emissions budgets

for the 2005 attainment demonstration

SIP for the Pennsylvania portion of the

Philadelphia area that did include the

benefits from the Tier 2/Sulfur rule. We

are approving the revised motor vehicle

emissions budgets submitted by the

Commonwealth on July 19, 2001 (which

now reflect the Tier 2/Sulfur rule

benefits). On November 26, 2001, the

effective date of this approval of the

2005-year attainment motor vehicle

emissions budgets submitted by

Pennsylvania on July 19, 2001, supplant

those attainment motor vehicle

emissions budgets submitted on

February 25, 2000, and become the

budgets for the Pennsylvania portion of

the Philadelphia area to which all future

transportation plans and transportation

improvement programs (TIPs) must

conform (until replaced by the revised

budgets discussed in Section I. J.); and

the restriction on the use of the benefits

from the Federal Tier 2/Sulfur rule in a

conformity determination is removed.

J. What Happens to the Approved 2005

Budgets When States Change Their

Budgets Using the MOBILE6 Model?

All states whose attainment

demonstration includes the effects of

the Tier 2/sulfur program have

committed to revise and resubmit their

motor vehicle emissions budgets after

EPA releases the MOBILE6 model. On

February 25, 2000, Pennsylvania

submitted a commitment to revise the

2005 motor vehicle budgets in the

attainment demonstration within one

year of EPA’s release of the MOBILE6

model. In this action, EPA is approving

this commitment to revise the 2005

motor vehicle budgets in the attainment

demonstration within one year of EPA’s

release of the MOBILE6 model. If

Pennsylvania fails to meet its

commitment to submit revised budgets

using the MOBILE6 model, EPA could

make a finding of failure to implement

the SIP, which would start a sanctions

clock under section 179 of the Act.

As we proposed in our July 28, 2000

SNPR (65 FR 46383), today’s final

approval of the budgets contained in the

2005 attainment plan will be effective

for conformity purposes only until such

time as revised motor vehicle emissions

budgets are submitted (pursuant to the

commitment to submit revised budgets

using the MOBILE6 model within one

year of EPA’s release of that model) and

we have found those revised budgets

adequate. We are only approving the

attainment demonstration and its

current budgets because Pennsylvania

has provided an enforceable

commitment to revise the budgets using

the MOBILE6 model within one year of

EPA’s release of that model. Therefore,

we are limiting the duration of our

approval of the current budgets only

until such time as the revised budgets

are found adequate. Those revised

budgets will be more appropriate than

the budgets we are approving for

conformity purposes for the time being.

Similarly, EPA is only approving the

2005 attainment demonstration and its

current budgets because Pennsylvania

has provided an enforceable

commitment to submit new budgets as

a revision to the attainment SIP

54148 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

3The August 12, 1996 version of ‘‘Appendix W

to Part 51—Guideline on Air Quality Models’’ was

the rule in effect for these attainment

demonstrations. EPA is proposing updates to this

rule, that will not take effect until the rulemaking

process for them is complete.

consistent with any new measures

submitted to fill any shortfall, if the

additional control measures affect onroad motor vehicle emissions.

Therefore, EPA is limiting the duration

of our approval of the current budgets

only until such time as any such revised

budgets are found adequate. Those

revised budgets will be more

appropriate than the budgets we are

approving for conformity purposes for

the time being.

K. What Is the Status of Pennsylvania’s

New Source Review (SIP)?

The EPA approved the

Commonwealth’s NSR program on

December 9, 1997 (62 FR 64722). As

stated in the preamble of the proposed

(62 FR 25060, May 2,1997) and final

rulemaking notices, EPA’s approval was

limited in nature. EPA’s sole reason for

granting limited approval rather than

full approval of Pennsylvania’s NSR

regulations was that they do not contain

certain restrictions on the use of

emission reductions from the shutdown

and curtailment of existing sources or

units as NSR offsets. These restrictions,

however, only apply in nonattainment

areas without an approved attainment

demonstration [see 40 CFR part

51.165(a)(ii)(C)]. As EPA is, today,

taking final action to approve

Pennsylvania’s attainment

demonstration SIP for the Philadelphia

area, the Commonwealth’s SIP-approved

NSR program’s lack of restrictions on

the use of emission reductions from the

shutdown and curtailment of existing

sources or units as NSR offsets,

applicable only in nonattainment areas

without an approved attainment

demonstration, is a moot issue. EPA has

already removed the limited nature of

its approval of Pennsylvania’s NSR

program in all areas of the

Commonwealth except for its portion of

the Philadelphia area (Philadelphia,

Delaware, Chester, Montgomery, and

Bucks counties). Now that we have

approved the attainment demonstration

for the Philadelphia area, we intend to

remove the limited nature of our

approval of the Pennsylvania NSR

program in Philadelphia, Delaware,

Chester, Montgomery, and Bucks

counties as well.

L. What Comments Were Received On

the Proposed Approvals and How Has

EPA Responded to Them?

EPA received comments from the

public on the Notice of Proposed

Rulemaking (NPR) published on

December 16, 1999 (64 FR 70428) for

Pennsylvania’s ozone attainment

demonstration. Comments were

received from Robert E. Yuhnke on

behalf of Environmental Defense and

Natural Resources Defense Council; the

Midwest Ozone Group; the Clean Air

Council; The Pennsylvania Chapter of

the Sierra Club; and from PECO Energy.

See Section II. of this document for a

summary of these comments and EPA

responses relevant to our approval of

the Commonwealth’s 2005 attainment

demonstration.

EPA also received comments from the

public on the supplemental notice of

proposed rulemaking published on July

28, 2000 (65 FR 46383) on the

attainment demonstrations, in which

EPA clarified and expanded on two

issues relating to the motor vehicle

emissions budgets in the attainment

demonstration SIPs. Comments were

received from Environmental Defense,

from ELM Packaging Co. and Citizens

for Pennsylvania’s Future (PennFuture).

See Section II. of this document for a

summary of these comments and EPA

responses relevant to our approval of

the Commonwealth’s 2005 attainment

demonstration for the Philadelphia area.

We did not receive comments on our

August 24, 2001 (66 FR 44568) proposed

approval of the Commonwealth’s Post

1996 plans. Nor did we receive

comments on our August 24, 2001(66

FR 44571) SNPR for Pennsylvania’s

2005 attainment demonstration,

wherein we proposed to approve

Pennsylvania’s revision to the motor

vehicle emissions budgets for the

attainment year of 2005 which reflected

the benefits of the Federal Tier 2/Sulfur

rule and the Commonwealth’s formal

SIP commitment to perform a midcourse review by December 31, 2003.

Last, we did not receive comments on

our August 30, 2001 (66 FR 45797)

SNPR on the Commonwealth’s 2005

attainment demonstration, wherein we

proposed to approve Pennsylvania’s

RACM analysis and determination for

the area.

II. Response to Comments

The following discussion summarizes

and responds to the comments received

on December 16, 1999 (64 FR 70428)

and July 28, 2000 (65 FR 46383)

proposed actions on the

Commonwealth’s 2005 attainment

demonstration SIP for the one hour

ozone standard. These are the only

proposed actions for which we received

comments.

A. Attainment Demonstration—Weight

of Evidence

Comment 1: The weight of evidence

approach does not demonstrate

attainment or meet CAA requirements

for a modeled attainment

demonstration. Commenters added

several criticisms of various technical

aspects of the weight of evidence

approach, including certain specific

applications of the approach to

particular attainment demonstrations.

These comments are discussed in the

following response.

Response 1: Under section 182(c)(2)

and (d) of the CAA, serious and severe

ozone nonattainment areas were

required to submit by November 15,

1994, demonstrations of how they

would attain the 1-hour standard.

Section 182(c)(2)(A) provides that

‘‘[t]his attainment demonstration must

be based on photochemical grid

modeling or any other analytical

method determined by the

Administrator, in the Administrator’s

discretion, to be at least as effective.’’ As

described in more detail below, the EPA

allows states to supplement their

photochemical modeling results, with

additional evidence designed to account

for uncertainties in the photochemical

modeling, to demonstrate attainment.

This approach is consistent with the

requirement of section 182(c)(2)(A) that

the attainment demonstration ‘‘be based

on photochemical grid modeling,’’

because the modeling results constitute

the principal component of EPA’s

analysis, with supplemental information

designed to account for uncertainties in

the model. This interpretation and

application of the photochemical

modeling requirement of section

182(c)(2)(A) finds further justification in

the broad deference Congress granted

EPA to develop appropriate methods for

determining attainment, as indicated in

the last phrase of section 182(c)(2)(A).

The flexibility granted to EPA under

section 182(c)(2)(A) is reflected in the

regulations EPA promulgated for

modeled attainment demonstrations.

These regulations provide, ‘‘The

adequacy of a control strategy shall be

demonstrated by means of applicable air

quality models, data bases, and other

requirements specified in [40 CFR part

51 Appendix W] (Guideline on Air

Quality Models).’’ 3 40 CFR 51.112(a)(1).

However, the regulations further

provide, ‘‘Where an air quality model

specified in appendix W * * * is

inappropriate, the model may be

modified or another model substituted

[with approval by EPA, and after] notice

and opportunity for public comment.

***’’ Appendix W, in turn, provides

that, ‘‘The Urban Airshed Model (UAM)

is recommended for photochemical or

Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54149

4 Guidance on the Use of Modeled Results to

Demonstrate Attainment of the Ozone NAAQS.

EPA–454/B–95–007, June 1996.

5 Ibid.

6 ‘‘Guidance for Improving Weight of Evidence

Through Identification of Additional Emission

Reductions, Not Modeled.’’ U.S. Environmental

Protection Agency, Office of Air Quality Planning

and Standards, Emissions, Monitoring, and

Analysis Division, Air Quality Modeling Group,

Research Triangle Park, NC 27711. November 1999.

Web Site: http://www.epa.gov/ttn/scram.

reactive pollutant modeling applications

involving entire urban areas,’’ but

further refers to EPA’s modeling

guidance for data requirements and

procedures for operating the model. 40

CFR 51 App. W section 6.2.1.a. The

modeling guidance discusses the data

requirements and operating procedures,

as well as interpretation of model

results as they relate to the attainment

demonstration. This provision

references guidance published in 1991,

but EPA envisioned the guidance would

change as we gained experience with

model applications, which is why the

guidance is referenced, but does not

appear, in Appendix W. With updates

in 1996 and 1999, the evolution of

EPA’s guidance has led us to use both

the photochemical grid model, and

additional analytical methods approved

by EPA.

The modeled attainment test

compares model predicted 1-hour daily

maximum ozone concentrations in all

grid cells for the attainment year to the

level of the NAAQS. The results may be

interpreted through either of two

modeled attainment or exceedance tests:

the deterministic test or the statistical

test. Under the deterministic test, a

predicted concentration above 0.124

parts per million (ppm) ozone indicates

that the area is expected to exceed the

standard in the attainment year and a

prediction at or below 0.124 ppm

indicates that the area is expected to not

exceed the standard. Under the

statistical test, attainment is

demonstrated when all predicted (i.e.,

modeled) 1-hour ozone concentrations

inside the modeling domain are at, or

below, an acceptable upper limit above

the NAAQS permitted under certain

conditions (depending on the severity of

the episode modeled).4

In 1996, EPA issued guidance 5 to

update the 1991 guidance referenced in

40 CFR 51 Appendix W, to make the

modeled attainment test more closely

reflect the form of the NAAQS (i.e., the

statistical test described above), to

consider the area’s ozone design value

and the meteorological conditions

accompanying observed exceedances,

and to allow consideration of other

evidence to address uncertainties in the

modeling databases and application.

When the modeling does not

conclusively demonstrate attainment,

EPA has concluded that additional

analyses may be presented to help

determine whether the area will attain

the standard. As with other predictive

tools, there are inherent uncertainties

associated with air quality modeling

and its results. The inherent

imprecision of the model means that it

may be inappropriate to view the

specific numerical result of the model as

the only determinant of whether the SIP

controls are likely to lead to attainment.

The EPA’s guidance recognizes these

limitations, and provides a means for

considering other evidence to help

assess whether attainment of the

NAAQS is likely to be achieved. The

process by which this is done is called

a weight of evidence (WOE)

determination. Under a WOE

determination, the state can rely on, and

EPA will consider in addition to the

results of the modeled attainment test,

other factors such as other modeled

output (e.g., changes in the predicted

frequency and pervasiveness of 1-hour

ozone NAAQS exceedances, and

predicted change in the ozone design

value); actual observed air quality

trends (i.e. analyses of monitored air

quality data); estimated emissions

trends; and the responsiveness of the

model predictions to further controls.

In 1999, EPA issued additional

guidance 6 that makes further use of

model results for base case and future

emission estimates to predict a future

design value. This guidance describes

the use of an additional component of

the WOE determination, which requires,

under certain circumstances, additional

emission reductions that are or will be

approved into the SIP, but that were not

included in the modeling analysis, that

will further reduce the modeled design

value. An area is considered to monitor

attainment if each monitor site has air

quality observed ozone design values

(4th highest daily maximum ozone

using the three most recent consecutive

years of data) at or below the level of the

standard. Therefore, it is appropriate for

EPA, when making a determination that

a control strategy will provide for

attainment, to determine whether or not

the model predicted future design value

is expected to be at or below the level

of the standard. Since the form of the 1-

hour NAAQS allows exceedances, it did

not seem appropriate for EPA to require

the test for attainment to be ‘‘no

exceedances’’ in the future model

predictions.

The method outlined in EPA’s 1999

guidance uses the highest measured

design value across all sites in the

nonattainment area for each of three

years. These three ‘‘design values’’

represent the air quality observed

during the time period used to predict

ozone for the base emissions. This is

appropriate because the model is

predicting the change in ozone from the

base period to the future attainment

date. The three yearly design values

(highest across the area) are averaged to

account for annual fluctuations in

meteorology. The result is an estimate of

an area’s base year design value. The

base year design value is multiplied by

a ratio of the peak model predicted

ozone concentrations in the attainment

year (i.e., average of daily maximum

concentrations from all days modeled)

to the peak model predicted ozone

concentrations in the base year (i.e.,

average of daily maximum

concentrations from all days modeled).

The result is an attainment year design

value based on the relative change in

peak model predicted ozone

concentrations from the base year to the

attainment year. Modeling results also

show that emission control strategies

designed to reduce areas of peak ozone

concentrations generally result in

similar ozone reductions in all core

areas of the modeling domain, thereby

providing some assurance of attainment

at all monitors.

In the event that the attainment year

design value is above the standard, the

1999 guidance provides a method for

identifying additional emission

reductions, not modeled, which at a

minimum provide an estimated

attainment year design value at the level

of the standard. This step uses a locally

derived factor which assumes a linear

relationship between ozone and the

precursors.

A commenter criticized the 1999

guidance as flawed on grounds that it

allows the averaging of the three highest

air quality sites across a region, whereas

EPA’s 1991 and 1996 modeling

guidance requires that attainment be

demonstrated at each site. This has the

effect of allowing lower air quality

concentrations to be averaged against

higher concentrations thus reducing the

total emission reduction needed to

attain at the higher site. The commenter

does not appear to have described the

guidance accurately. The guidance does

not recommend averaging across a

region or spatial averaging of observed

data. The guidance does recommend

determination of the highest site in the

region for each of the three-year periods,

determined by the base year modeled.

For example, if the base year is 1990, it

is the amount of emissions in 1990 that

must be adjusted or evaluated (by

54150 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

accounting for growth and controls) to

determine whether attainment results.

These 1990 emissions would contribute

to three design value periods (1988–90,

1989–91 and 1990–92).

Under the approach of the guidance

document, EPA determined the design

value for each of those three-year

periods, and then averaged those three

design values, to determine the base

design value. This approach is

appropriate because, as just noted, the

1990 emissions contributed to each of

those periods, and there is no reason to

believe the 1990 (episodic) emissions

resulted in the highest or lowest of the

three design values. Averaging the three

years is beneficial for another reason: It

allows consideration of a broader range

of meteorological conditions-those that

occurred throughout the 1988–1992

period, rather than the meteorology that

occurs in one particular year or even

one particular ozone episode within that

year. Furthermore, EPA relied on threeyear averaging only for purposes of

determining one component, i.e.—the

small amount of additional emission

reductions not modeled—of the WOE

determination. The WOE determination,

in turn, is intended to be part of a

qualitative assessment of whether

additional factors (including the

additional emissions reductions not

modeled), taken as a whole, indicate

that the area is more likely than not to

attain.

A commenter criticized the

component of this WOE factor that

estimates ambient improvement because

it does not incorporate complete

modeling of the additional emissions

reductions. However, the regulations do

not mandate, nor does EPA guidance

suggest, that States must model all

control measures being implemented.

Moreover, a component of this

technique—the estimation of future

design value—should be considered a

model—predicted estimate. Therefore,

results from this technique are an

extension of ‘‘photochemical grid’’

modeling and are consistent with

Section 182(c)(2)(A). Also, a commenter

believes that EPA has not provided

sufficient opportunity to evaluate the

calculations used to estimate additional

emission reductions. EPA provided a

full 60-day period for comment on all

aspects of the proposed rule. EPA has

received several comments on the

technical aspects of the approach and

the results of its application, as

discussed above and in the responses to

the individual SIPs.

A commenter states that application

of the method of attainment analysis

used for the December 16, 1999 NPRs

will yield a lower control estimate than

if we relied entirely on reducing

maximum predictions in every grid cell

to less than or equal to 124 ppb on every

modeled day. However, the

commenter’s approach may

overestimate needed controls because

the form of the standard allows up to 3

exceedances in 3 years in every grid

cell. If the model over predicts observed

concentrations, predicted controls may

be further overestimated. EPA has

considered other evidence, as described

above through the weight of evidence

determination.

When reviewing a SIP, the EPA must

make a determination that the control

measures adopted are reasonably likely

to lead to attainment. Reliance on the

WOE factors allows EPA to make this

determination based on a greater body

of information presented by the States

and available to EPA. This information

includes model results for the majority

of the control measures. Although not

all measures were modeled, EPA

reviewed the model’s response to

changes in emissions as well as

observed air quality changes to evaluate

the impact of a few additional measures,

not modeled. EPA’s decision was

further strengthened by each State’s

commitment to check progress towards

attainment in a mid-course review and

to adopt additional measures, if the

anticipated progress is not being made.

A commenter further criticized EPA’s

technique for estimating the ambient

impact of additional emissions

reductions not modeled on grounds that

EPA employed a ‘‘rollback’’ modeling

technique that, according to the

commenter, is precluded under EPA

regulations. The commenter explained

that 40 CFR 51 App. W section 6.2.1.e.

provides, ‘‘Proportional (rollback/

forward) modeling is not an acceptable

procedure for evaluating ozone control

strategies.’’ Section 14.0 of appendix W

defines ‘‘rollback’’ as ‘‘a simple model

that assumes that if emissions from each

source affecting a given receptor are

decreased by the same percentage,

ambient air quality concentrations

decrease proportionately.’’ Under this

approach if 20% improvement in ozone

is needed for the area to reach

attainment, it is assumed a 20%

reduction in VOC would be required.

There was no approach for identifying

NOX reductions.

The ‘‘proportional rollback’’ approach

is based on a purely empirically/

mathematically derived relationship.

EPA did not rely on this approach in its

evaluation of the attainment

demonstrations. The prohibition in

Appendix W applies to the use of a

rollback method which is empirically/

mathematically derived and

independent of model estimates or

observed air quality and emissions

changes as the sole method for

evaluating control strategies. For the

demonstrations under proposal, EPA

used a locally derived (as determined by

the model and/or observed changes in

air quality) ratio of change in emissions

to change in ozone to estimate

additional emission reductions to

achieve an additional increment of

ambient improvement in ozone.

For example, if monitoring or

modeling results indicate that ozone

was reduced by 25 ppb during a

particular period, and that VOC and

NOX emissions fell by 20 tons per day

and 10 tons per day respectively during

that period, EPA developed a ratio of

ozone improvement related to

reductions in VOC and NOX. This

formula assumes a linear relationship

between the precursors and ozone for a

small amount of ozone improvement,

but it is not a ‘‘proportional rollback’’

technique. Further, EPA uses these

locally derived adjustment factors as a

component to estimate the extent to

which additional emissions

reductions—not the core control

strategies—would reduce ozone levels

and thereby strengthen the weight of

evidence test. EPA uses the UAM to

evaluate the core control strategies.

This limited use of adjustment factors

is more technically sound than the

unacceptable use of proportional

rollback to determine the ambient

impact of the entire set of emissions

reductions required under the

attainment SIP. The limited use of

adjustment factors is acceptable for

practical reasons: it obviates the need to

expend more time and resources to

perform additional modeling. In

addition, the adjustment factor is a

locally derived relationship between

ozone and its precursors based on air

quality observations and /or modeling

which is more consistent with

recommendations referenced by

Appendix W and does not assume a

direct proportional relationship between

ozone and its precursors. Last, the

requirement that areas perform a midcourse review (a check of progress

toward attainment) provides a margin of

safety.

A commenter expressed concerns that

EPA used a modeling technique

(proportional rollback) that was

expressly prohibited by 40 CFR part 51

Appendix W, without expressly

proposing to do so in a notice of

proposed rulemaking. However, the

commenter is mistaken. As explained

above, EPA did not use or rely upon a

proportional rollback technique in this

rulemaking, but used UAM to evaluate

Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54151

the core control strategies and then

applied its WOE guidance. Therefore,

because EPA did not use an ‘‘alternative

model’’ to UAM, it did not trigger an

obligation to modify Appendix W.

Furthermore, EPA did propose the use

the November 1999 guidance ‘‘Guidance

for Improving Weight of Evidence

Through Identification of Additional

Emission Reductions, Not Modeled’’ in

the December 16, 1999 NPR and has

responded to all comments received on

that guidance elsewhere in this

document.

A commenter also expressed concern

that EPA applied unacceptably broad

discretion in fashioning and applying

the WOE determinations. For all of the

attainment submittals proposed for

approval in December 1999 concerning

serious and severe ozone nonattainment

areas, EPA first reviewed the UAM

results. In all cases, the UAM results did

not pass the deterministic test. In two

cases—Milwaukee and Chicago—the

UAM results passed the statistical test;

in the rest of the cases, the UAM results

failed the statistical test. The UAM has

inherent limitations that, in EPA’s view,

were manifest in all these cases. These

limitations include: (1) Only selected

time periods were modeled, not the

entire three-year period used as the

definitive means for determining an

area’s attainment status; (2) inherent

uncertainties in the model formulation

and model inputs such as hourly

emission estimates, emissions growth

projections, biogenic emission

estimates, and derived wind speeds and

directions. As a result, for all areas, even

Milwaukee and Chicago, EPA examined

additional analyses to indicate whether

additional SIP controls would yield

meaningful reductions in ozone values.

These analyses did not point to the need

for additional emission reductions for

Springfield, Greater Connecticut,

Metropolitan Washington, DC, Chicago

and Milwaukee, but did point to the

need for additional reductions, in

varying amounts, in the other areas. As

a result, the other areas submitted

control requirements to provide the

indicated level of emissions reductions.

EPA applied the same methodology in

these areas, but because of differences in

the application of the model to the

circumstances of each individual area,

the results differed on a case-by-case

basis.

As another WOE factor, for areas

within the NOX SIP call domain, results

from the EPA regional modeling for

NOX controls as well as the Tier2/Low

Sulfur program were considered. Also,

for all of the areas, EPA considered

recent changes in air quality and

emissions. For some areas, this was

helpful because there were emission

reductions in the most recent years that

could be related to observed changes in

air quality, while for other areas there

appeared to be little change in either air

quality or emissions. For areas in which

air quality trends, associated with

changes in emissions levels, could be

discerned, these observed changes were

used to help decide whether or not the

emission controls in the plan would

provide progress towards attainment.

The commenter also complained that

EPA has applied the WOE

determinations to adjust modeling

results only when those results indicate

nonattainment, and not when they

indicate attainment. First, we disagree

with the premise of this comment: EPA

does not apply the WOE factors to

adjust model results. EPA applies the

WOE factors as additional analysis to

compensate for uncertainty in the air

quality modeling. Second, EPA has

applied WOE determinations to all of

the attainment demonstrations proposed

for approval in December 1999.

Although for most of them, the air

quality modeling results by themselves

indicated nonattainment, for two

metropolitan areas—Chicago and

Milwaukee, including parts of the States

of Illinois, Indiana, and Wisconsin, the

air quality modeling did indicate

attainment on the basis of the statistical

test.

The commenter further criticized

EPA’s application of the WOE

determination on grounds that EPA

ignores evidence indicating that

continued nonattainment is likely, such

as, according to the commenter,

monitoring data indicating that ozone

levels in many cities during 1999

continue to exceed the NAAQS by

margins as wide or wider than those

predicted by the UAM. EPA has

reviewed the evidence provided by the

commenter. The 1999 monitor values do

not constitute substantial evidence

indicating that the SIPs will not provide

for attainment. These values do not

reflect either the local or regional

control programs which are scheduled

for implementation in the next several

years. Once implemented, these controls

are expected to lower emissions and

thereby lower ozone values. Moreover,

there is little evidence to support the

statement that ozone levels in many

cities during 1999 continue to exceed

the NAAQS by margins as wide or

wider than those predicted by the UAM.

Since areas did not model 1999 ozone

levels using 1999 meteorology and 1999

emissions which reflect reductions

anticipated by control measures, that are

or will be approved into the SIP, there

is no way to determine how the UAM

predictions for 1999 compare to the

1999 air quality. Therefore, we can not

determine whether or not the monitor

values exceed the NAAQS by a wider

margin than the UAM predictions for

1999. In summary, there is little

evidence to support the conclusion that

high exceedances in 1999 will continue

to occur after adopted control measures

are implemented.

In addition, the commenter argued

that in applying the WOE

determinations, EPA ignored factors

showing that the SIPs under-predict

future emissions, and the commenter

included as examples certain mobile

source emissions sub-inventories. EPA

did not ignore possible under-prediction

in mobile emissions. EPA is presently

evaluating mobile source emissions data

as part of an effort to update the

computer model for estimating mobile

source emissions. EPA is considering

various changes to the model, and is not

prepared to conclude at this time that

the net effect of all these various

changes would be to increase or

decrease emissions estimates. For

attainment demonstration SIPs that rely

on the Tier 2/Sulfur program for

attainment or otherwise (i.e., reflect

these programs in their motor vehicle

emissions budgets), States have

committed to revise their motor vehicle

emissions budgets after the MOBILE6

model is released. EPA will work with

States on a case-by-case basis if the new

emission estimates raise issues about

the sufficiency of the attainment

demonstration. If analysis indicates

additional measures are needed, EPA

will take the appropriate action.

Comment 2: We received comments

asserting that the attainment

demonstration for the Philadelphia area

did not model the requisite number of

episodes. The comments state that only

two episodes were modeled.

Response 2: EPA did note that only

two episodes were modeled in our

December 16, 1999 proposed rule and in

the TSD prepared for the proposed rule.

EPA did not consider the lack of a third

episode to be a deficiency due to the

severity of the two episodes modeled. In

both the December 16, 1999 proposed

rulemaking and the associated TSD, we

noted the following:

(1) Both of the episodes in the local

UAM modeling represent very severe

ozone events with meteorological ozone

forming potential rankings of less than

80 out of all days over the last fifty years

(Cox and Chu 1996).

(2) Given the severity of these

episodes, they are likely to be the

controlling episodes in the Philadelphia

area in the determination of emission

reductions needed for attainment.

54152 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

(3) These episodes also represent the

meteorological regime most frequently

responsible for elevated ozone

concentrations in the Philadelphia area.

B. Reliance on the NOX SIP Call and the

Tier 2/Sulfur Rule

Comment: Several commenters stated

that given the uncertainty surrounding

the NOX SIP Call at the time of EPA’s

proposals on the attainment

demonstrations, there is no basis for the

conclusion reached by EPA that states

should assume implementation of the

NOX SIP Call, or rely on it as a part of

their demonstrations. One commenter

claims that there were errors in the

emissions inventories used for the NOX

SIP Call Supplemental Notice (SNPR)

and that these inaccuracies were carried

over to the modeling analyses, estimates

of air quality based on that modeling,

and estimates of EPA’s Tier 2 tailpipe

emissions reduction program not

modeled in the demonstrations. Thus,

because of the inaccuracies in the

inventories used for the SIP Call, the

attainment demonstration modeling is

also flawed. Finally, one commenter

suggests that modeling data

demonstrates that the benefits of

imposing NOX SIP Call controls are

limited to areas near the sources

controlled.

Response: These comments were

submitted prior to several court

decisions largely upholding EPA’s NOX

SIP Call, Michigan v. United States Env.

Prot. Agency, 213 F.3d 663 (D.C. Cir.

2000), cert. denied, U.S., 121 S.Ct. 1225,

149 L.Ed. 135 (2001); Appalachian

Power v. EPA, 251 F.3d 1026 (D.C. Cir.

2001), cert. denied,ll U.S.ll, 121

S.Ct. 1225, 149 L.Ed. 135 (2001);

Appalachian Power v. EPA, 251 F.3d

1026 (D.C. Cir. 2001). In those cases, the

court largely upheld the NOX SIP Call.

Although a few issues were vacated or

remanded to EPA for further

consideration, these issues do not

concern the accuracy of the emission

inventories relied on for purposes of the

SIP Call. Moreover, contrary to the

commenter’s suggestion, the SIP Call

modeling data bases were not used to

develop estimates of reductions from

the Tier 2/Sulfur program for the severe

area one-hour attainment

demonstrations. Accordingly, the

commenter’s concerns that inaccurate

inventories for the SIP Call modeling

lead to inaccurate results for the severearea one-hour attainment

demonstrations are inapposite.

The remanded issues do affect the

ability of EPA and the States to achieve

the full level of the SIP Call reductions

by May 2003. First, the court vacated

the rule as it applied to two states—

Missouri and Georgia—and also

remanded the definition of a cogenerator and the assumed emission

limit for internal combustion engines.

EPA has informed the states that until

EPA addresses the remanded issues,

EPA will accept SIPs that do not include

those small portions of the emission

budget. However, EPA is planning to

propose a rule shortly to address the

remanded issues and ensure that

emission reductions from these States

and the emission reductions represented

by the two source categories are

addressed in time to benefit the severe

nonattainment areas. Also, although the

court in the Michigan case subsequently

issued an order delaying the

implementation date to no later than

May 31, 2004, and the Appalachian

Power case remanded an issue

concerning computation of the EGU

growth factor, it is EPA’s view that

States should assume that the SIP Call

reductions will occur in time to ensure

attainment in the severe nonattainment

areas. Both EPA and the States are

moving forward to implement the SIP

Call.

Finally, contrary to the commenter’s

conclusions, EPA’s modeling to

determine the region-wide impacts of

the NOX SIP call clearly shows that

regional transport of ozone and its

precursors is impacting nonattainment

areas several states away. This analysis

was upheld by the court in Michigan.

C. RACM (Including Transportation

Control Measures)

Comment: Several commenters have

stated that there is no evidence in

several states that they have adopted

reasonably available control measures

(RACM) or that the SIPs have provided

for attainment as expeditiously as

practicable. Specifically, the lack of

Transportation Control Measures

(TCMs) was cited in several comments,

but commenters also raised concerns

about potential stationary source

controls. One commenter stated that

mobile source emission budgets in the

plans are by definition inadequate

because the SIPs do not demonstrate

timely attainment or contain the

emissions reductions required for all

RACM. That commenter claims that

EPA may not find adequate a motor

vehicle emission budget (MVEB) that is

derived from a SIP that is inadequate for

the purpose for which it is submitted.

The commenter alleges that none of the

MVEBs submitted by the states that EPA

is considering for adequacy is consistent

with the level of emissions achieved by

implementation of all RACM; nor are

they derived from SIPs that provide for

attainment. Some commenters stated

that for measures that are not adopted

into the SIP, the State must provide a

justification for why they were

determined to not be RACM.

Response: EPA reviewed the initial

SIP submittals for the Philadelphia area

and determined that they did not

include sufficient documentation

concerning available RACM measures.

For all of the severe areas for which EPA

proposed approval in December 1999,

EPA consequently issued policy

guidance memorandum to have these

States address the RACM requirement

through an additional SIP submittal.

(Memorandum of December 14, 2000,

from John S. Seitz, Director, Office of

Air Quality Planning and Standards, re:

‘‘Additional Submission on RACM from

States with Severe 1-hour Ozone

Nonattainment Area SIPs’’).

On July 19, 2001 the Commonwealth

of Pennsylvania formally submitted a

supplement to its 2005 attainment

demonstration SIP consisting of an

analysis and determination of RACM.

On August 30, 2001 (66 FR 45797), EPA

proposed to approve this supplement to

the attainment demonstration SIP as

meeting the RACM requirements. EPA

did not receive any comments on its

August 30, 2001 proposal. Please see the

discussion in I.E. of this document.

Section 172(c)(1) of the Act requires

SIPs to contain RACM and provides for

areas to attain as expeditiously as

practicable. EPA has previously

provided guidance interpreting the

requirements of 172(c)(1). See 57 FR

13498, 13560. In that guidance, EPA

indicated its interpretation that

potentially available measures that

would not advance the attainment date

for an area would not be considered

RACM. EPA also indicated in that

guidance that states should consider all

potentially available measures to

determine whether they were

reasonably available for implementation

in the area, and whether they would

advance the attainment date. Further,

states should indicate in their SIP

submittals whether measures

considered were reasonably available or

not, and if measures are reasonably

available they must be adopted as

RACM.

Finally, EPA indicated that states

could reject measures as not being

RACM because they would not advance

the attainment date, would cause

substantial widespread and long-term

adverse impacts, would be economically

or technologically infeasible, or would

be unavailable based on local

considerations, including costs. The

EPA also issued a recent memorandum

re-confirming the principles in the

earlier guidance, entitled, ‘‘Guidance on

Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54153

the Reasonably Available Control

Measures (RACM) Requirement and

Attainment Demonstration Submissions

for Ozone Nonattainment Areas.’’ John

S. Seitz, Director, Office of Air Quality

Planning and Standards. November 30,

1999. Web site: http://www.epa.gov/ttn/

oarpg/t1pgm.html.

The analysis submitted by

Pennsylvania on July 19, 2001, as a

supplement to its attainment

demonstration SIP for the Philadelphia

area, addresses the RACM requirement.

Pennsylvania convened a stakeholders

group (the Southeastern Pennsylvania

Ozone Stakeholders Group) to examine

a wide variety of potential stationary

and mobile source controls. The

stationary/area source controls that were

considered included the adoption of

South Coast Air Quality Management

District/California Air Resources

Board’s (SCAQMD/CARB) limits for

certain VOC source categories that are

more stringent than the already adopted

control technique guideline (CTG)

limits, e.g., fabric/paper, magnet wire,

vinyl, miscellaneous metal parts, coil

and metal furniture coating; limits on

area source categories not covered by a

CTG, e.g., adhesives, motor vehicle

refinishing, surface/cleaning degreasing,

underground storage tank vents; rule

effectiveness improvements; wood

furniture coating (Pennsylvania has a

SIP-approved rule consistent with

RACT limits recommended under the

CTG; under consideration for the RACM

analysis was expanding the

applicability of those limits to sources

smaller than those covered by the CTG);

‘‘beyond RACT’’ controls on major

stationary sources of NOX; and other

potential measures.

The mobile source control measures

considered included the national low

emission vehicle program, accelerated

replacement of older buses with cleaner

buses, compressed natural gas (CNG)

fueled buses, and emissions-based

vehicle registration fees. Mobile source

controls also included control measures

aimed at reducing vehicle trips, travel or

congestion via land use planning, traffic

flow improvements (signalization, ramp

metering, speed limit restriction

enforcement), improved mass transit,

expanded parking at rail stations,

telecommuting, bicycle lanes or access

improvements at rail stations, parking

taxes/surcharge, and increased gasoline

taxes or miles travel based fees.

Pennsylvania considered an extensive

list of potential control measures and

chose measures for implementation

which went beyond the Federally

mandated controls, which were found to

be cost effective and technologically

feasible. From the list of measures

considered, the rules and measures

adopted and submitted by

Pennsylvania, as analyzed and

examined by the stakeholders group, are

as follows:

(1) Pennsylvania has adopted, and

EPA has SIP-approved, the

Commonwealth’s rule for vehicle

refinishing. The rule includes VOC

content limits for motor vehicle

refinishing coatings, application

standards and storage and housekeeping

work practices. This rule goes beyond

the Federal rule in content limits and

application and work practices

standards. Compliance with this rule

was required in 2000.

(2) Pennsylvania has adopted, and

EPA has SIP-approved, the

Commonwealth’s rule requiring the sale

of vehicles under the national lowemission vehicle program.

(3) Pennsylvania has adopted, and

EPA has SIP-approved, the

Commonwealth’s rule to implement

Phase II NOX controls under the Ozone

Transport Commission’s (OTC)

Memorandum of Understanding (MOU).

This rule established a fixed cap on

ozone-season NOX emissions from major

point sources of NOX. The rule grants

each source a fixed number of NOX

allowances, applies state-wide, and

requires compliance during the ozone

season. The implementation of this rule

commenced May 1, 1999 and reduces

NOX emissions both inside and outside

the Philadelphia area.

(4) Pennsylvania has adopted, and

EPA has SIP-approved, the

Commonwealth’s rule to implement the

NOX SIP call. The Pennsylvania rule

requires compliance commencing with

the start of the 2003 ozone season. (This

measure was identified as Phase III

control under the OTC MOU on NOX

control in the RACM submittal because

the evaluation occurred in 1996, well

before the SIP call proposal.)

(5) Pennsylvania has also adopted

rule effectiveness improvements for the

implementation of regulations through

the attainment year of 2005 for its

portion of the Philadelphia area as part

of its post 1996 Rate of Progress Plans

which EPA is approving in this final

rulemaking.

Pennsylvania considered a number of

measures that have the potential to

achieve benefits but concluded that

some were not cost effective, that others

have the potential for substantial

widespread and long-term adverse

impacts and that one measure, a

mandatory ban on residential lawn care

activities on high ozone days, was

infeasible due to the impracticability of

effective enforcement. These are

explained in further detail in the docket

for this rulemaking. For the reasons

explained in our August 30, 2001 SNPR,

EPA concluded that no additional

measures could advance the attainment

date for the Philadelphia area prior to

full implementation of all controls

scheduled for implementation by 2005.

Although EPA does not believe that

section 172(c)(1) requires

implementation of additional measures

for the Philadelphia area, this

conclusion is not necessarily valid for

other areas. Thus, a determination of

RACM is necessary on a case-by-case

basis and will depend on the

circumstances for the individual area. In

addition, if in the future EPA moves

forward to implement another ozone

standard, this RACM analysis would not

control what is RACM for these or any

other areas for that other ozone

standard.

Also, EPA has long advocated that

States consider the kinds of control

measures that the commenters have

suggested, and EPA has indeed

provided guidance on those measures.

See, e.g., http://www.epa.gov/otaq/

transp.htm. In order to demonstrate that

they will attain the 1-hour ozone

NAAQS as expeditiously as practicable,

some areas may need to consider and

adopt a number of measures—including

the kind that Pennsylvania itself

evaluated in its RACM analysis—that

even collectively do not result in many

emission reductions. Furthermore, EPA

encourages areas to implement

technically available and economically

feasible measures to achieve emissions

reductions in the short term—even if

such measures do not advance the

attainment date—since such measures

will likely improve air quality. Also,

over time, emission control measures

that may not be RACM now for an area

may ultimately become feasible for the

same area due to advances in control

technology or more cost-effective

implementation techniques. Thus, areas

should continue to assess the state of

control technology as they make

progress toward attainment and

consider new control technologies that

may in fact result in more expeditious

improvement in air quality.

Because EPA is finding that the SIP

meets the CAA’s requirement for RACM

and that there are no additional

reasonably available control measures

that can advance the attainment date,

EPA concludes that the attainment date

being approved is expeditiously as

practicable.

The motor vehicle emissions budgets

are adequate. The SIP includes all

necessary RACM and provides for

expeditious attainment as explained

herein.

54154 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

7These commitments are enforceable by the EPA

and citizens under, respectively, sections 113 and

304 of the CAA. In the past, EPA has approved

enforceable commitments and courts have enforced

these actions against states that failed to comply

with those commitments. See, e.g., American Lung

Ass’n of N.J. v. Kean, 670 F. Supp. 1285 (D.N.J.

1987), aff’d, 871 F.2d 319 (3rd Cir. 1989); NRDC v.

N.Y. State Dept. of Envs. Cons., 668 F. Supp. 848

(S.D.N.Y. 1987); Citizens for a Better Env’t v.

Deukmejian, 731 F. Supp. 1448, recon. granted in

part, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition

for Clean Air v. South Coast Air Quality Mgt. Dist.,

No. CV 97–6916 HLH, (C.D. Cal. Aug. 27, 1999).

Further, if a state fails to meet its commitments,

EPA could make a finding of failure to implement

the SIP under section 179(a) of the Act, which starts

an 18-month period for the State to begin

implementation before mandatory sanctions are

imposed.

8Section 110(k)(4) provides for ‘‘conditional

approval’’ of commitments that need not be

enforceable. Under that section, a State may commit

to ‘‘adopt specific enforceable measures’’ within

one-year of the conditional approval. Rather than

enforcing such commitments against the State, the

Act provides that the conditional approval will

convert to a disapproval if ‘‘the State fails to comply

with such commitment.’’

D. Approval of Attainment

Demonstrations That Rely on State

Commitments or State Rules For

Emission Limitations to Lower

Emissions in the Future not yet Adopted

by a State and/or Approved by EPA

Comment: Several commenters

disagreed with EPA’s proposal to

approve states’ attainment and rate of

progress demonstrations because (a) not

all of the emissions reductions assumed

in the demonstrations have actually

taken place, (b) are reflected in rules yet

to be adopted and approved by a state

and approved by EPA as part of the SIP,

(c) are credited illegally as part of a

demonstration because they are not

approved by EPA as part of the SIP, or

(d) the commenter maintains that EPA

does not have authority to accept

enforceable state commitments to adopt

measures in the future in lieu of current

adopted measures to fill a near-term

shortfall of reductions.

Response: EPA disagrees with the

comments, and believes—consistent

with past practice—that the CAA allows

approval of enforceable commitments

that are limited in scope where

circumstances exist that warrant the use

of such commitments in place of

adopted measures.7 Once EPA

determines that circumstances warrant

consideration of an enforceable

commitment, EPA believes that three

factors should be considered in

determining whether to approve the

enforceable commitment: (1) Whether

the commitment addresses a limited

portion of the statutorily-required

program; (2) whether the state is capable

of fulfilling its commitment; and (3)

whether the commitment is for a

reasonable and appropriate period of

time.

It is also noted that while the

Commonwealth does rely on

commitments to adopt additional

measures for the purpose of

demonstrating attainment, it does not

rely on commitments to demonstrate

ROP. See 66 FR 44568, August 24, 2001.

The Commonwealth’s Post 1996 plans

demonstrate ROP with VOC and NOX

emission reductions achieved within

the nonattainment area by the

implementation of fully promulgated

Federal and fully adopted, SIP-approved

state measures.

As an initial matter, EPA believes that

present circumstances for the New York

City, Philadelphia, Baltimore and

Houston nonattainment areas warrant

the consideration of enforceable

commitments. The Northeast states that

make up the New York, Baltimore, and

Philadelphia nonattainment areas

submitted SIPs that they reasonably

believed demonstrated attainment with

fully adopted measures. After EPA’s

initial review of the plans, EPA

recommended to these areas that

additional controls would be necessary

to ensure attainment. Because these

areas had already submitted plans with

many fully adopted rules and the

adoption of additional rules would take

some time, EPA believed it was

appropriate to allow these areas to

supplement their plans with enforceable

commitments to adopt and submit

control measures to achieve the

additional necessary reductions. For

Pennsylvania’s attainment

demonstration for the Philadelphia area,

EPA has determined that the submission

of enforceable commitments in place of

adopted control measures for these

limited sets of reductions will not

interfere with each area’s ability to meet

its 2005 attainment obligations.

EPA’s approach here of considering

enforceable commitments that are

limited in scope is not new. EPA has

historically recognized that under

certain circumstances, issuing full

approval may be appropriate for a

submission that consists, in part, of an

enforceable commitment. See, e.g., 62

FR 1150, 1187, Jan. 8, 1997 (ozone

attainment demonstration for the South

Coast Air Basin; 65 FR 18903, Apr. 10,

2000 (revisions to attainment

demonstration for the South Coast Air

Basin); 63 FR 41326, Aug. 3, 1998

(federal implementation plan for PM–10

for Phoenix); 48 FR 51472 (state

implementation plan for New Jersey).

Nothing in the Act speaks directly to the

approvability of enforceable

commitments.8 However, EPA believes

that its interpretation is consistent with

provisions of the CAA. For example,

section 110(a)(2)(A) provides that each

SIP ‘‘shall include enforceable emission

limitations and other control measures,

means or techniques * * * as well as

schedules and timetables for

compliance, as may be necessary or

appropriate to met the applicable

requirement of the Act.’’ (Emphasis

added). Section 172(c)(6) of the Act

requires, as a rule generally applicable

to nonattainment SIPs, that the SIP

‘‘include enforceable emission

limitations and such other control

measures, means or techniques * * * as

may be necessary or appropriate to

provide for attainment * * * by the

applicable attainment date * * * ’’

(Emphasis added). The emphasized

terms mean that enforceable emission

limitations and other control measures

do not necessarily need to generate

reductions in the full amount needed to

attain. Rather, the emissions limitations

and other control measures may be

supplemented with other SIP rules—for

example, the enforceable commitments

EPA is approving today—as long as the

entire package of measures and rules

provides for attainment.

As provided, after concluding that the

circumstances warrant consideration of

an enforceable commitment—as they do

for the Philadelphia area—EPA would

consider three factors in determining

whether to approve the submitted

commitments. First, EPA believes that

the commitments must be limited in

scope. In 1994, in considering EPA’s

authority under section 110(k)(4) to

conditionally approve unenforceable

commitments, the Court of Appeals for

the District of Columbia Circuit struck

down an EPA policy that would allow

States to submit (under limited

circumstances) commitments for entire

programs. Natural Resources Defense

Council v. EPA, 22 F.3d 1125 (D.C. Cir.

1994). While EPA does not believe that

case is directly applicable here, EPA

agrees with the Court that other

provisions in the Act contemplate that

a SIP submission will consist of more

than a mere commitment. See NRDC, 22

F.3d at 1134.

In the present circumstances, the

commitments address only a small

portion of the plan. For the Philadelphia

area, the commitment addresses only

10.6% of the VOC and 0.7% of the NOX

emissions reductions necessary to attain

the standard. A summary of the adopted

control measures and other components

credited in Pennsylvania’s attainment

demonstration submission are discussed

in Sections G. and H. of this document.

These adopted and implemented control

measures are the majority of the

Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54155

emissions reductions needed to

demonstrate attainment.

As to the second factor, whether the

State is capable of fulfilling the

commitment, EPA considered the

current or potential availability of

measures capable of achieving the

additional level of reductions

represented by the commitment. For the

New York, Philadelphia and Baltimore

nonattainment areas, EPA believes that

there are sufficient untapped sources of

emission reductions that could achieve

the minimal levels of additional

reductions that the areas need. This is

supported by the recent

recommendation of the Ozone Transport

Commission (OTC) regarding specific

controls that could be adopted to

achieve the level of reductions needed

for each of these three nonattainment

areas. Thus, EPA believes that the States

will be able to find sources of

reductions to meet the shortfall. The

States that comprise the New York,

Philadelphia and Baltimore

nonattainment areas are making

significant progress toward adopting the

measures to fill the shortfall. The OTC

has met and on March 29, 2001

recommended a set of control measures.

Currently, the States are working

through their adoption processes with

respect to those, and in some cases

other, control measures.

The Commonwealth is well into the

adoption process for these measures.

Although EPA has evidence that the

Commonwealth may not make the

submission on or before the date to

which it has committed, EPA believes

that it is making sufficient progress to

support approval of the commitment

because the Commonwealth will adopt

and implement the measures within a

time period fully consistent with the

Philadelphia area attaining the standard

by its approved attainment date.

The third factor, EPA has considered

in determining to approve limited

commitments for the Philadelphia

attainment demonstration is whether

the commitment is for a reasonable and

appropriate period. EPA recognizes that

both the Act and EPA have historically

emphasized the need for submission of

adopted control measures in order to

ensure expeditious implementation and

achievement of required emissions

reductions. Thus, to the extent that

other factors—such as the need to

consider innovative control strategies—

support the consideration of an

enforceable commitment in place of

adopted control measures, the

commitment should provide for the

adoption of the necessary control

measures on an expeditious, yet

practicable, schedule.

As provided above, for New York,

Baltimore and Philadelphia, EPA

proposed that these areas have time to

work within the framework of the OTC

to develop, if appropriate, a regional

control strategy to achieve the necessary

reductions and then to adopt the

controls on a state-by-state basis. In the

proposed approval of the attainment

demonstrations, EPA proposed that

these areas would have approximately

22 months to complete the OTC and

state-adoption processes—a fairly

ambitious schedule—i.e., until October

31, 2001. As a starting point in

suggesting this time frame for

submission of the adopted controls, EPA

first considered the CAA ‘‘SIP Call’’

provision of the CAA—section

110(k)(5)—which provides States with

up to 18 months to submit a SIP after

EPA requests a SIP revision. While EPA

may have ended its inquiry there, and

provided for the States to submit the

measures within 18 months of it’s

proposed approval of the attainment

demonstrations, EPA further considered

that these areas were all located with

the Northeast Ozone Transport Region

(OTR) and determined that it was

appropriate to provide these areas with

additional time to work through the

OTR process to determine if regional

controls would be appropriate for

addressing the shortfall. See e.g., 64 FR

70428. EPA believed that allowing these

States until 2001 to adopt these

additional measures would not

undercut their attainment dates of

November 2005 or 2007. EPA still

believes that this a reasonable schedule

for the states to submit adopted control

measures that will achieve the

additional necessary reductions.

The enforceable commitments

submitted by Pennsylvania for the

Philadelphia nonattainment area, in

conjunction with the other SIP measures

and other sources of emissions

reductions, constitute the required

demonstration of attainment and the

commitments will not interfere with the

area’s ability to make reasonable

progress under section 182(c)(2)(B) and

(d). EPA believes that the delay in

submittal of the final rules is

permissible under section 110(k)(3)

because the Commonwealth has

obligated itself to submit the rules by

specified short-term dates, and that

obligation is enforceable by EPA and the

public. Moreover, as discussed in the

December 16, 1999 proposal, its

Technical Support Document (TSD),

and Sections G. and H. of this

document, the SIP submittal approved

today contains major substantive

components submitted as adopted

regulations and enforceable orders.

EPA believes that the Pennsylvania

SIP meets the NRDC consent decree

definition of a ‘‘full attainment

demonstration.’’ The consent decree

defines a ‘‘full attainment

demonstration’’ as a demonstration

according to CAA section 182(c)(2). As

a whole, the attainment

demonstration—consisting of

photochemical grid modeling, adopted

control measures, an enforceable

commitment with respect to a limited

portion of the reductions necessary to

attain, and other analyses and

documentation—is approvable since it

‘‘provides for attainment of the ozone

[NAAQS] by the applicable attainment

date.’’ See section 182(c)(2)(A).

E. Adequacy of Motor Vehicle Emissions

Budgets

Comment: We received a number of

comments about the process and

substance of EPA’s review of the

adequacy of motor vehicle emissions

budgets for transportation conformity

purposes.

Response: EPA’s adequacy process for

most of these SIPs has been completed,

and we have found the motor vehicle

emissions budgets in all of these SIPs to

be adequate. We have already

responded to any comments related to

adequacy of the ROP budgets that we

are approving in this action, when we

issued our adequacy findings, and

therefore we are not listing the

individual comments or responding to

them here.

On August 24, 2001 (66 FR 44571), we

proposed to approve and to determine

adequate the revised 2005 attainment

budgets, shown in Table 4, which were

submitted by the Commonwealth on

July 19, 2001. We received no comments

on the August 24, 2001 proposal. In this

final rule we are finding the revised

budgets of the 2005 attainment

demonstration SIP submitted by the

Commonwealth adequate, and are

approving them.

All of our findings of adequacy and

responses to comments can be accessed

at www.epa.gov/otaq/traq (once there,

click on the ‘‘conformity’’ button). At

the web site, EPA regional contacts are

identified.

Comment 2: We received comments

asserting that Pennsylvania has not

provided a clear indication of how the

conformity requirements of the Clean

Air Act are being met. Conformity is an

important tool to ensure that

transportation programs or policies are

fully developed with Clean Air Act

obligations in mind.

54156 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

9Credit for the 15 Percent Rate-of-Progress Plans

for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rules,’’

March 22, 1995, from John S. Seitz, Director, Office

of air Quality Planning and Standards to Air

Division Directors, Regions I–X.

Response 2: The attainment

demonstration SIP is not required to

describe how conformity requirements

are being met. Demonstrations of

conformity are a separate process and

mandate upon certain recipients of

Federal funds that are independently

enforceable under the CAA and EPA

regulations. See 42 U.S.C. 7506. The SIP

does identify motor vehicle emissions

budgets that will be used for the

purposes of determining conformity in

the future. EPA has found all the

budgets adequate for conformity

purposes as discussed in Sections I.F.

and I.I. and in this action is approving

the attainment demonstration and ROP

plans each of which contain motor

vehicle emissions budgets.

Comment 3: We received comments

asserting that Pennsylvania’s motor

vehicle emissions budgets do not

provide sufficient emission reductions

to demonstrate attainment.

Response 3: In our December 16, 1999

NPR, we proposed to approve

Pennsylvania’s attainment

demonstration for the Philadelphia area.

For the reasons outlined in our

December 16, 1999 NPR and in

responses to comments regarding the

weight of evidence, EPA concluded that

Pennsylvania had adequate modeling

demonstrating attainment for the

Philadelphia area provided that

Pennsylvania commit to adopting

additional measures to strengthen the

weight of evidence. Pennsylvania has

adopted such an enforceable

commitment and EPA is approving this

commitment. In addition, approval

under the December 16, 1999 NPR was

contingent upon approval into the SIP

of rules upon which the modeling

demonstration and upon adoption of

adequate motor vehicle emissions

budgets that reflected the benefits from

the Federal Tier 2/Sulfur rule. EPA has

approved into the SIP the needed rules

and is determining in this action that

Pennsylvania has adopted and

submitted adequate budgets

incorporating the benefits from the

Federal Tier 2/Sulfur rule. The

adequacy criteria include a

determination that the motor vehicle

emissions budgets, when considered

together with all other emissions

sources, is consistent with applicable

requirements for attainment. See 40 CFR

93.118(e)(4)(iv). EPA is approving

Pennsylvania’s attainment

demonstration because it is supported

by an adequate modeling demonstration

and because the measures upon which

the modeling demonstration is based are

creditable and because the motor

vehicle emissions budgets are consistent

with the measures in the SIP and the

attainment demonstration.

F. Attainment Demonstration and Rate

of Progress Motor Vehicle Emissions

Inventories

Comment: Several commenters stated

that the motor vehicle emissions

inventory is not current, particularly

with respect to the fleet mix.

Commenters stated that the fleet mix

does not accurately reflect the growing

proportion of sport utility vehicles and

gasoline trucks, which pollute more

than conventional cars. Also, a

commenter stated that EPA and states

have not followed a consistent practice

in updating SIP modeling to account for

changes in vehicle fleets. For these

reasons, commenters recommend

disapproving the SIPs.

Response: All of the SIPs on which

we are taking final action are based on

the most recent vehicle registration data

available at the time the SIP was

submitted. The SIPs use the same

vehicle fleet characteristics that were

used in the most recent periodic

inventory update. The Commonwealth

modeled vehicle age distributions from

1993. EPA requires the most recent

available data to be used, but we do not

require it to be updated on a specific

schedule. Therefore, different SIPs base

their fleet mix on different years of data.

Our guidance does not suggest that SIPs

should be disapproved on this basis.

Nevertheless, we do expect that

revisions to these SIPs that are

submitted using MOBILE6 (as required

in those cases where the SIP is relying

on emissions reductions from the Tier 2

standards) will use updated vehicle

registration data appropriate for use

with MOBILE6, whether it is updated

local data or the updated national

default data that will be part of

MOBILE6.

G. VOC Emission Reductions

Comment: For States that need

additional VOC reductions, one

commenter recommends a process to

achieve these VOC emission reductions,

which involves the use of HFC–152a

(1,1 difluoroethane) as the blowing

agent in manufacturing of polystyrene

foam products such as food trays and

egg cartons. The commenter states that

HFC–152a could be used instead of

hydrocarbons, a known pollutant, as a

blowing agent. Use of HFC–152a, which

is classified as VOC exempt, would

eliminate nationwide the entire 25,000

tons/year of VOC emissions from this

industry.

Response: EPA has met with the

commenter and has discussed the

technology described by the company to

reduce VOC emissions from polystyrene

foam blowing through the use of HFC–

152a (1,1 difluoroethane), which is a

VOC exempt compound, as a blowing

agent. Since the HFC–152a is VOC

exempt, its use would give a VOC

reduction compared to the use of VOCs

such a pentane or butane as a blowing

agent. However, EPA has not studied

this technology exhaustively. It is each

State’s prerogative to specify which

measures it will adopt in order to

achieve the additional VOC reductions

it needs. In evaluating the use of HFC–

152a, States may want to consider

claims that products made with this

blowing agent are comparable in quality

to products made with other blowing

agents. Also the question of the over-all

long term environmental effect of

encouraging emissions of fluorine

compounds would be relevant to

consider. This is a technology which

States may want to consider, but

ultimately, the decision of whether to

require this particular technology to

achieve the necessary VOC emissions

reductions must be made by each

affected State. Finally, EPA notes that

under the significant new alternatives

policy (SNAP) program, created under

CAA § 612, EPA has identified

acceptable foam blowing agents man of

which are not VOCs (http://

www.epa.gov/ozone/title6/snap/).

H. Credit for Measures not Fully

Implemented

Comment: States should not be given

credit for measures that are not fully

implemented. For example, the States

are being given full credit for Federal

coating, refinishing and consumer

product rules that have been delayed or

weakened.

Response: Architectural and

Industrial Maintenance (AIM) Coatings:

On March 22, 1995 EPA issued a

memorandum 9 that provided that States

could claim a 20% reduction in VOC

emissions from the AIM coatings

category in ROP and attainment plans

based on the anticipated promulgation

of a national AIM coatings rule. In

developing the attainment and ROP SIPs

for their nonattainment areas, States

relied on this memorandum to estimate

emission reductions from the

anticipated national AIM rule. EPA

promulgated the final AIM rule in

September 1998, codified at 40 CFR Part

59 Subpart D. In the preamble to EPA’s

final AIM coatings regulation, EPA

Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54157

10 ‘‘Credit for the 15 Percent Rate-of-Progress

Plans for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rule and the

Autobody Refinishing Rule,’’ November 29, 1994,

John S. Seitz, Director OAQPS, to Air Division

Directors, Regions I–X.

11 ‘‘Regulatory Schedule for Consumer and

Commercial Products under section 183(e) of the

Clean Air Act,’’ June 22, 1995, John S. Seitz,

Director OAQPS, to Air Division Directors, Regions

I–X.

estimated that the regulation will result

in 20% reduction of nationwide VOC

emissions from AIM coatings categories

(63 FR 48855). The estimated VOC

reductions from the final AIM rule

resulted in the same level as those

estimated in the March 1995 EPA policy

memorandum. In accordance with

EPA’s final regulation, States have

assumed a 20% reduction from AIM

coatings source categories in their

attainment and ROP plans. AIM

coatings manufacturers were required to

be in compliance with the final

regulation within one year of

promulgation, except for certain

pesticide formulations which were

given an additional year to comply.

Thus all manufacturers were required to

comply, at the latest, by September

2000. Industry confirmed in comments

on the proposed AIM rule that 12

months between the issuance of the

final rule and the compliance deadline

would be sufficient to ‘‘use up existing

label stock’’ and ‘‘adjust inventories’’ to

conform to the rule. 63 FR 48848

(September 11, 1998). In addition, EPA

determined that, after the compliance

date, the volume of nonconforming

products would be very low (less than

one percent) and would be withdrawn

from retail shelves anyway.

Therefore, EPA believes that

compliant coatings were in use by the

Fall of 1999 with full reductions to be

achieved by September 2000 and that it

was appropriate for the States to take

credit for a 20% emission reduction in

their SIPs.

Autobody Refinish Coatings Rule:

Consistent with a November 27, 1994

EPA policy 10, many States claimed a

37% reduction from this source category

based on a proposed rule. However,

EPA’s final rule, ‘‘National Volatile

Organic Compound Emission Standards

for Automobile Refinish Coatings,’’

published on September 11, 1998 (63 FR

48806), did not regulate lacquer

topcoats and will result in a smaller

emission reduction of around 33%

overall nationwide. The 37% emission

reduction from EPA’s proposed rule was

an estimate of the total nationwide

emission reduction. Since this number

is an overall national average, the actual

reduction achieved in any particular

area could vary depending on the level

of control which already existed in the

area. For example, in California the

reduction from the national rule is zero

because California’s rules are more

stringent than the national rule. In the

proposed rule, the estimated percentage

reduction for areas that were

unregulated before the national rule was

about 40%. However as a result of the

lacquer topcoat exemption added

between proposal and final rule, the

reduction is now estimated to be 36%

for previously unregulated areas. Thus,

most previously unregulated areas will

need to make up the approximately 1%

difference between the 37% estimate of

reductions assumed by States, following

EPA guidance based on the proposal,

and the 36% reduction actually

achieved by the final rule for previously

unregulated areas. EPA’s best estimate

of the reduction potential of the final

rule was spelled out in a September 19,

1996 memorandum entitled ‘‘Emissions

Calculations for the Automobile

Refinish Coatings Final Rule’’ from

Mark Morris to Docket No. A–95–18.

The Commonwealth revised the

autobody rule in 1999, and EPA

approved the revisions on August 14,

2000 [65 FR 49501]. The revised rule

will achieve the 37% assumed

reduction from the measure. EPA found

the PADEP achieves a 36% reduction

for milestone 1999 and 37% for years

2002 and 2005.

Consumer Products Rule: Consistent

with a June 22, 1995 EPA guidance 11,

States claimed a 20% reduction from

this source category based on EPA’s

proposed rule. The final rule, ‘‘National

Volatile Organic Compound Emission

Standards for Consumer Products,’’ (63

FR 48819), published on September 11,

1998, has resulted in a 20% reduction

after the December 10, 1998 compliance

date. Moreover, these reductions largely

occurred by the Fall of 1999. In the

consumer products rule, EPA

determined and the consumer products

industry concurred, that a significant

proportion of subject products have

been reformulated in response to State

regulations and in anticipation of the

final rule (63 FR 48819). That is,

industry reformulated the products

covered by the consumer products rule

in advance of the final rule. Therefore,

EPA believes that complying products

in accordance with the rule were in use

by the Fall of 1999. It was appropriate

for the States to take credit for a 20%

emission reduction for the consumer

products rule in their SIPs.

I. Enforcement of Control Programs

Comment: The attainment

demonstrations do not clearly set out

programs for enforcement of the various

control strategies relied on for emission

reduction credit.

Response: In general, state

enforcement, personnel and funding

program elements are contained in SIP

revisions previously approved by EPA

under obligations set forth in section

110(a)(2)(c) of the Clean Air Act. Once

approved by the EPA, there is no need

for states to readopt and resubmit these

programs with each and every SIP

revision generally required by other

sections of the Act. Pennsylvania has

previously received approval of its

section 110(a)(2) SIPs. In a final

rulemaking action published on

February 26, 1985, EPA approved

Pennsylvania’s financial and manpower

resource commitments for Southeast

Pennsylvania (50 FR 7772, 7775), after

having proposed approval of these

commitments on February 3, 1983 (48

FR 5096, 5099). In addition, emission

control regulations will also contain

specific enforcement mechanisms, such

as record keeping and reporting

requirements, and may also provide for

periodic state inspections and reviews

of the affected sources. EPA’s review of

these regulations includes review of the

enforceability of the regulations. Rules

that are not enforceable are generally

not approved by the EPA. To the extent

that the ozone attainment demonstration

depends on specific state emission

control regulations, these individual

regulations have undergone review by

the EPA in past approval actions.

J. MOBILE6 and Motor Vehicle

Emissions Budgets (MVEBS)

Comment 1: One commenter generally

supports a policy of requiring motor

vehicle emissions budgets to be

recalculated when revised MOBILE

models are released.

Response 1: The attainment

demonstrations that rely on Tier 2

emission reduction credit contain

commitments to revise the motor

vehicle emissions budgets after

MOBILE6 is released.

Comment 2: The revised budgets

calculated using MOBILE6 will likely be

submitted after the MOBILE5 budgets

have already been approved. EPA’s

policy is that submitted SIPs may not

replace approved SIPs.

Response 2: This is the reason that

EPA proposed in the July 28, 2000,

SNPR (65 FR 46383) that the approval

of the MOBILE5 budgets for conformity

purposes would last only until

MOBILE6 budgets had been submitted

and found adequate. In this way, the

MOBILE6 budgets can apply for

conformity purposes as soon as they are

found adequate.

54158 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

Comment 3: If a State submits

additional control measures that affect

the motor vehicle emissions budget, but

does not submit a revised motor vehicle

emissions budget, EPA should not

approve the attainment demonstration.

Response 3: EPA agrees. The motor

vehicle emissions budgets in the

Philadelphia attainment demonstration

reflect the motor vehicle control

measures in the attainment

demonstration. In addition,

Pennsylvania has committed to submit

new budgets as a revision to the

attainment SIP consistent with any new

measures submitted to fill any shortfall,

if the additional control measures affect

on-road motor vehicle emissions.

Comment 4: EPA should make it clear

that the motor vehicle emissions

budgets to be used for conformity

purposes will be determined from the

total motor vehicle emissions reductions

required in the SIP, even if the SIP does

not explicitly quantify a revised motor

vehicle emissions budget.

Response 4: EPA will not approve

SIPs without motor vehicle emissions

budgets that are explicitly quantified for

conformity purposes. The Philadelphia

attainment demonstration contains

explicitly quantified motor vehicle

emissions budgets.

Comment 5: If a state fails to follow

through on its commitment to submit

the revised motor vehicle emissions

budgets using MOBILE6, EPA could

make a finding of failure to submit a

portion of a SIP, which would trigger a

sanctions clock under section 179.

Response 5: If a state fails to meet its

commitment, EPA could make a finding

of failure to implement the SIP, which

would start a sanctions clock under

section 179 of the Clean Air Act.

Comment 6: If the budgets

recalculated using MOBILE6 are larger

than the MOBILE5 budgets, then

attainment should be demonstrated

again.

Response 6: As EPA proposed in its

December 16, 1999 notices, we will

work with States on a case-by-case basis

if the new emissions estimates raise

issues about the sufficiency of the

attainment demonstration.

Comment 7: If the MOBILE6 budgets

are smaller than the MOBILE5 budgets,

the difference between the budgets

should not be available for reallocation

to other sources unless air quality data

show that the area is attaining, and a

revised attainment demonstration is

submitted that demonstrates that the

increased emissions are consistent with

attainment and maintenance. Similarly,

the MOBILE5 budgets should not be

retained (while MOBILE6 is being used

for conformity demonstrations) unless

the above conditions are met.

Response 7: EPA agrees that if

recalculation using MOBILE6 shows

lower motor vehicle emissions than

MOBILE5, then these motor vehicle

emission reductions cannot be

reallocated to other sources or assigned

to the motor vehicle emissions budget as

a safety margin unless the area

reassesses the analysis in its attainment

demonstration and shows that it will

still attain. In other words, the area must

assess how its original attainment

demonstration is impacted by using

MOBILE6 versus MOBILE5 before it

reallocates any apparent motor vehicle

emission reductions resulting from the

use of MOBILE6. In addition,

Pennsylvania will be submitting new

budgets based on MOBILE6, so the

MOBILE5 budgets will not be retained

in the SIP indefinitely.

K. MOBILE6 Grace Period

Comment 1: We received a comment

on whether the grace period before

MOBILE6 is required in conformity

determinations will be consistent with

the schedules for revising SIP motor

vehicle emissions budgets within 1 or 2

years of MOBILE6’s release.

Response 1: This comment is not

germane to this rulemaking, since the

MOBILE6 grace period for conformity

determinations is not explicitly tied to

EPA’s SIP policy and approvals.

However, EPA understands that a longer

grace period would allow some areas to

better transition to new MOBILE6

budgets. EPA is considering the

maximum 2-year grace period allowed

by the conformity rule, and EPA will

address this in the future when the final

MOBILE6 emissions model and policy

guidance is released.

Comment 2: One commenter asked

EPA to clarify in the final rule whether

MOBILE6 will be required for

conformity determinations once new

MOBILE6 budgets are submitted and

found adequate.

Response 2: This comment is not

germane to this rulemaking. However, it

is important to note that EPA intends to

clarify its policy for implementing

MOBILE6 in conformity determinations

when the final MOBILE6 model is

released. EPA believes that MOBILE6

should be used in conformity

determinations once new MOBILE6

budgets are found adequate.

L. Two-Year Option To Revise the

MVEBs

Comment: One commenter did not

prefer the additional option for a second

year before the state has to revise the

conformity budgets with MOBILE6,

since new conformity determinations

and new transportation projects could

be delayed in the second year.

Response: EPA proposed the

additional option to provide further

flexibility in managing MOBILE6 budget

revisions. The supplemental proposal

did not change the original option to

revise budgets within one year of

MOBILE6’s release. State and local

governments can continue to use the 1-

year option, if desired, or submit a new

commitment consistent with the

alternative 2-year option. EPA expects

that state and local agencies have

consulted on which option is

appropriate and have considered the

impact on future conformity

determinations. Pennsylvania has

committed to revise its budgets within

one-year of MOBILE6’s release.

M. Unapproved Measures

Comment 1: We received comments

that objected to crediting the SIP with

reductions from measures not approved

into the SIP. The comments specifically

mentioned conditionally approved

RACT rules and asserted that credit

should not be given for this program

until EPA completes review and

approval of all case-by-case RACT. The

comments also specifically mentioned

Phase II NOX controls under the OTC

MOU. We also received comments,

which stated that NOX RACT should be

extended to 25 ton-per-year sources.

Response 1: On May 3, 2001 (66 FR

22123), EPA published a rulemaking

determining that Pennsylvania had

satisfied the conditions imposed in the

conditional limited approval of its

generic NOX and VOC RACT

regulations. In that rulemaking, EPA

removed the conditional status of its

approval of the Commonwealth’s

generic VOC and NOX RACT regulations

on a statewide basis. On October 15,

2001, the Regional Administrator of

Region III signed a final rule converting

our limited approval of the

Pennsylvania generic VOC and NOX

RACT regulation to a full approval as it

applies in the Philadelphia area. This

final rule has been recently or will be

shortly published in the Federal

Register. On June 6, 2000, EPA

approved Pennsylvania’s rule that

implements the Phase II controls under

the OTC MOU (65 FR 35840). Finally,

the applicability threshold for RACT in

Pennsylvania’s SIP-approved generic

NOX and VOC RACT regulations for the

Philadelphia area is 25 ton per year as

required in a severe nonattainment area

thus NOX RACT extends to sources that

emit 25 tons-per-year.

Comment 2: We received comments

asserting that because Pennsylvania had

Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54159

not adopted Phase II NOX reductions as

agreed to in the OTC MOU, has

abandoned the NOX SIP call strategy,

and was behind in submitting its RACT

submittals the SIP should not be

credited with these measures.

Response 2: As discussed in the

response to the previous comment, EPA

has approved Pennsylvania’s NOX

RACT and OTC MOU rules. As

discussed in Section I.I. of this

document, Pennsylvania submitted a

revision to its SIP to address the

requirements of the NOX SIP Call. EPA

fully approved this SIP (66 FR 43795,

August 21, 2001).

N. Attainment and Post-1999 Rate of

Progress Demonstrations

Comment 1: One commenter claims

that the plans fail to demonstrate

emission reductions of 3 percent per

year over each 3-year period between

November 1999 and November 2002;

and November 2002 and November

2005; and the 2-year period between

November 2005 and November 2007, as

required by 42 U.S.C. section

7511a(c)(2)(B). The states have not even

attempted to demonstrate compliance

with these requirements, and EPA has

not proposed to find that they have been

met. The commenter states that EPA has

absolutely no authority to waive the

statutory mandate for 3 percent annual

reductions and that the statute does not

allow EPA to use the NOX SIP call or

126 orders as an excuse for waiving ROP

deadlines. The commenter asserts that

the statutory ROP requirement is for

emission reductions—not ambient

reductions. The commenter asserts that

emission reductions in upwind states do

not waive the statutory requirement for

3 percent annual emission reductions

within the downwind nonattainment

area.

Response 1: Under no condition is

EPA waiving the statutory requirement

for 3 percent annual emission

reductions. For many areas, EPA did not

propose approval of the post-99 ROP

demonstrations at the same time as EPA

proposed action on the area’s attainment

demonstration. EPA proposed to

approve the Commonwealth Post 1996

ROP plans, which include ROP

demonstrations for milestone years

1999, 2002, and 2005, on August 24,

2001 (66 FR 44568). We received no

comments on that proposal. In this final

rulemaking, EPA is approving the

Commonwealth’s Post 1996 ROP plans.

Pennsylvania’s Post 1996 plans

demonstrate ROP by relying upon VOC

and NOX emissions reductions achieved

within the nonattainment area from

fully promulgated Federal and fully

adopted SIP-approved state measures.

Comment 2: We received comment

that the ‘‘limited approval’’ status of the

Commonwealth’s Post 1996 ROP plan is

not authorized under the CAA.

Response 2: The comment is now

moot, because EPA withdrew its

previous action proposing ‘‘limited

approval’’ of the Commonwealth’s Post

1996 plan in the NPR it published on

August 24, 2001 (66 FR 44568). EPA reproposed full approval of the Post-1996

plan on August 24, 2001, and did not

receive any comments on this proposal.

In this final rulemaking, EPA is fully

approving Pennsylvania’s Post 1996

plan which relies only upon VOC and

NOX emissions reductions achieved

within the nonattainment area from

fully promulgated Federal and fully

adopted SIP-approved state measures.

O. Comments on Specific Area and

Point Source Measures

Comment 1: We received comments

asserting that Pennsylvania has not

adopted the OTC NOX MOU’s Phase II/

III reductions and the NOX SIP Call

requirements.

Response 1: EPA has fully approved

the Pennsylvania’s NOX Allowance

Requirements as a SIP revision (65 FR

35840, June 6, 2000). These

requirements implement Phase II of the

OTC’s MOU to control NOX for the years

1999–2002. The Phase III reductions

under the OTC MOU have been

superceded by Pennsylvania’s SIPapproved NOX SIP Call rule.

Compliance with that rule is required

starting in 2003. EPA has fully approved

the Pennsylvania Interstate Ozone

Transport Reduction Plan as meeting

the non-remanded portions of the NOX

SIP Call rule (66 FR 43795, August 21,

2001). Pennsylvania’s Interstate Ozone

Transport Reduction Plan establishes a

NOX budget trading program for fossilfired combustion boilers with a

maximum design heat input greater than

250 MMBTU per hour and electric

utility generators with a capacity greater

than 25 megawatts. Pennsylvania’s

Phase I NOX SIP Call trading rule is

consistent with the reductions modeled

in the attainment demonstration and

with EPA’s requirements to establish an

emission rate of 0.15 lb/MMBtu for

electric generating units and 0.17 lb/

MMBTU for non-electric generating

units.

On March 3, 2000, the D.C. Circuit

issued its decision on the NOX SIP Call

ruling in favor of EPA on all the major

issues. See Michigan v. EPA, 213 F.3d

663 (D.C. Cir. 2000). However, the Court

remanded certain matters for further

rulemaking by EPA. EPA expects to

publish a proposal that addresses the

remanded portion of the NOX SIP Call

Rule. Pennsylvania will adopt and

submit controls to meet the portions of

the SIP call budget reflected by

reduction from both internal

combustion engines and cement kilns in

the remanded portions of the NOX SIP

Call rule consistent with any schedule

EPA establishes in response to the

remand.

Comment 2: We received comments

that express concerns about the

accountability of the reductions from

the implementation of the 126 petitions

as compared to those assumed in the

attainment demonstration.

Response 2: As noted in the December

16, 1999 proposal, Pennsylvania’s

attainment demonstration assumed NOX

reductions consistent with those called

for by EPA’s NOX SIP Call. In

consideration of recent court decisions

on the NOX SIP Call as previously

described and as explained in EPA’s

response to comments on ‘‘Reliance on

NOX SIP Call and Tier 2 Modeling’’,

EPA believes it is appropriate to allow

states to continue to assume the

reductions from the NOX SIP Call. The

fact that EPA has granted section 126

petitions does not remove the

obligations of states subject to the NOX

SIP Call to reduce NOX emissions as

called for in that rule. Furthermore,

implementation of either the section 126

rules (described in later Sections) or the

NOX SIP Call achieves emission

reductions prior to the applicable

attainment deadline, 2005. Under recent

rulings by the U.S. Court of Appeals for

the District of Columbia Circuit both the

126 rule and the NOX SIP Call must be

implemented early in the ozone season

in 2004.

On August 14–15, 1997, we received

petitions submitted individually by

eight Northeastern States under section

126 of the CAA. Each petition requests

us to make a finding that sources in

certain categories of stationary sources

in upwind States emit or would emit

NOX in violation of the prohibition in

section 110(a)(2)(D)(i) on emissions that

contribute significantly to

nonattainment, or interfere with

maintenance, in the petitioning State.

On May 25, 1999, we promulgated a

final rule (May 1999 Rule) determining

that portions of the petitions are

approvable under the one-hour and/or

eight-hour ozone NAAQS based on their

technical merit (64 FR 28250). Based on

the affirmative technical determinations

for the one-hour ozone NAAQS made in

the May 1999 Rule, we promulgated a

final rule on January 18, 2000 (January

2000 Rule) making section 126 findings

that a number of large electric

generating units (EGUs) and large

industrial boilers and turbines named in

54160 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

12October 30, 2000 is the first business day

following the expiration of the 128-day period.

the petitions emit in violation of the

CAA prohibition against significantly

contributing to nonattainment or

maintenance problems in the

petitioning States (65 FR 2674). In the

January 2000 Rule, we also finalized the

Federal NOX Budget Trading Program as

the control remedy for sources affected

by the rule. This requirement replaces

the default remedy in the May 1999

Rule. The January 2000 Rule establishes

Federal NOX emissions limits that

sources must meet through a cap-andtrade program by May 1, 2003. The

January 2000 rule affects sources located

in the District of Columbia, Delaware,

Maryland, North Carolina, New Jersey,

Ohio, Pennsylvania, Virginia, West

Virginia, and parts of Indiana,

Kentucky, Michigan, and New York. All

of the affected sources are located in

States that are subject to the NOX SIP

Call.

On October 27, 1998 (63 FR 57356),

EPA promulgated the ‘‘Finding of

Significant Contribution and

Rulemaking for Certain States in the

Ozone Transport Assessment Group

Region for Purposes of Reducing

Regional Transport of Ozone,’’

commonly referred to as the NOX SIP

Call. On March 3, 2000, the D.C. Circuit

issued its decision on the NOX SIP Call

largely upholding the rule. See

Michigan v. EPA, supra. On June 22,

2000, the Court ordered that we allow

the States and the District of Columbia

128 days from June 22, 2000 to submit

their SIPs. Accordingly, 19 States and

the District of Columbia were required

to submit SIPs in response to the NOX

SIP Call by October 30, 2000.12 On

August 30, 2000, the D.C. Circuit

ordered that the June 22, 2000 Order be

amended to extend the deadline for

implementation of the NOX SIP Call

from May 1, 2003 to May 31, 2004. In

a separate rulemaking, we are

addressing the Court’s remand of the

definition of electricity generating units,

the control level for large stationary

internal combustion engines and the SIP

submittal and compliance dates for

these actions, which affect less than 10

percent of the total emission reductions

called for by the NOX SIP Call.

Furthermore, as noted in the response

to a previous comment in this

document, Pennsylvania has a state

regulation in place to implement the SIP

Call requirements. This state rule is in

the approved Pennsylvania SIP and

requires compliance commencing May

1, 2003.

Comment 3: We received comments

asserting that Pennsylvania has failed to

implement RACT in an expeditious

manner.

Response 3: The Pennsylvania SIP has

long included approved RACT

regulations for sources and source

categories of VOCs covered by the CTGs

issued prior to 1990, by CAA section

182(b)(2)(A) and by the CTGs issued

after 1990 as required by CAA section

182(b)(2)(B). Additional RACT

regulations requiring RACT for all major

sources of VOC, not covered by a CTG

(non-CTG), and of NOX were to be

submitted to EPA as SIP revisions by

November 15, 1992 and compliance

required by May of 1995. On February

4, 1994, PADEP submitted a revision to

its SIP (25 Pa Code Chapters 129.91

through 129.95) requiring major sources

of NOX and non-CTG VOC sources to

implement RACT. These regulations

require major sources of NOX and VOC

to submit to PADEP, by no later than

July 15, 1994, a written RACT proposal.

In the Philadelphia area,

Pennsylvania’s RACT regulations

require non-CTG sources that have the

potential to emit 25 tpy or more of VOC

and sources which have the potential to

emit 25 tpy or more of NOX comply

with RACT. The regulations contain

technology-based or operational

‘‘presumptive RACT emission

limitations’’ for certain major NOX

sources. For other major NOX sources,

and all major VOC sources (not

otherwise already subject to RACT

pursuant to a source category regulation

under the Pennsylvania SIP), the

regulations contain a ‘‘generic’’ RACT

provision. A generic RACT regulation is

one that does not, itself, specifically

define RACT for a source or source

categories but instead allows for caseby-case RACT determinations. The

generic provisions of Pennsylvania’s

regulations allow for PADEP to make

case-by case RACT determinations that

are then to be submitted to EPA as

revisions to the Pennsylvania SIP. The

Commonwealth’s rule requires that the

covered sources, upon PADEP’s

notification of approval of their RACT

proposal, must implement the RACT ‘‘as

expeditiously as practicable’’, but no

later than May 31, 1995.

EPA granted conditional limited

approval of the Commonwealth’s VOC

and NOX RACT regulations on March

23, 1998 (63 FR 13789), and removed

the conditional aspect of the approval

on May 3, 2001 (66 FR 22123). On

September 6, 2001 (66 FR 46571), EPA

proposed to remove the limited nature

of its approval of Pennsylvania generic

VOC and NOX RACT regulations as they

apply in the Philadelphia area on the

basis that EPA would have approved

source-specific or category-specific

RACT rules for all sources subject to the

CAA RACT requirement. We received

no comments on that proposal. On

October 15, 2001, the Regional

Administrator of Region III signed a

final rule converting our limited

approval of Pennsylvania’s generic VOC

and NOX RACT regulations to a full

approval because EPA has SIP-approved

all of the case-by-case RACT

determinations submitted by PADEP for

affected major sources of NOX and/or

VOC sources located in Bucks, Chester,

Delaware, Montgomery, and

Philadelphia Counties, the five counties

that comprise the Pennsylvania portion

of the Philadelphia area.

Comment 3: We received comments

criticizing the use of rule effectiveness

as part of the demonstration. The

comments assert that EPA should be

skeptical of the reductions from this

program based on the Commonwealth’s

past enforcement history. Other

comments claim that with

implementation of RACT on a case-bycase basis the change in rule

effectiveness from 80 percent to 90

percent is unrealistic. These comments

have been submitted in the form of

statements with no accompanying

analyses to support them.

Response 3: The EPA disagrees that it

is inappropriate to allow credit for

improved rule effectiveness (RE) in the

attainment demonstration. The

Commonwealth has supplied to EPA a

protocol that has been implemented at

the sources for which increased RE

credits have been claimed. EPA

conducted its evaluation of

Pennsylvania’s RE credits as part of our

proposed approval of the Post-1996 ROP

plans. That supporting documentation,

namely the TSD for the Post-1996 ROP

plan approval, is part of the docket for

this final rulemaking. No comments

were received on EPA’s proposed action

to approve the Commonwealth’s Post

1996 ROP plans which included our

proposed approval of the RE credits

claimed by the Commonwealth. No one

has brought to EPA’s attention credible

evidence that Pennsylvania is not

implementing RE at the sources for

which RE improvement credits are

claimed. It would not be appropriate for

EPA to discount credit from a state

initiatives based upon unsubstantiated

speculation that such a state will not

enforce its own SIP.

EPA disagrees with the comment

asserting that implementation of RACT

on case-by-case basis, is reason to

assume that 90 percent RE is unrealistic.

To the contrary, EPA believes that

RACT rules tailored to specific sources

are much more likely to be implemented

successfully because any factors that

Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54161

could interfere with implementation of

RACT would be considered by the

Commonwealth under the SIP-approved

provisions of 25 Pa Code Chapters

129.91 through 129.95 when imposing

the source-specific RACT

determinations.

Comment 4: We received comments

expressing the opinion that Stage II

controls in Pennsylvania are performing

far below the stated efficiency.

Therefore, EPA is granting too much

credit to Pennsylvania for its Stage II

controls. EPA should determine the

present efficiency of these controls and

use that level in the attainment

demonstration. These comments have

been submitted in the form of

statements with no accompanying

analyses to support them.

Response 4: Pennsylvania has

adopted the Stage II control program

recommended by EPA. No one has

brought to EPA’s attention any credible

evidence that Pennsylvania is

implementing their program in a

manner inconsistent with EPA

guidance, which might lower the

expected reductions below levels which

are conforming to past EPA estimates of

Stage II efficiency.

P. Comments on Specific Mobile Source

Measures

Comment: We received comments

asserting that Pennsylvania is not fully

implementing its SIP approved

enhanced vehicle inspection and

maintenance program and that EPA

should not approve a demonstration

that includes benefits from a program

that is not fully implemented. The

comments claim that Pennsylvania has

not implemented all pass-fail standards

on schedule in the Philadelphia area.

Response: EPA advised the

Commonwealth, in a letter dated April

12, 2001 (Oge to Serian), that it should

not implement final acceleration

simulation mode (ASM) cutpoints on

1995 and older vehicles. EPA is

currently conducting additional

research on the effects of

implementation of final ASM cutpoints

on 1995 and older vehicles and will

issue guidance in the near future. The

issuance of this guidance will allow the

Commonwealth to implement final

ASM cutpoints for 1995 and older

vehicles at least one year prior to the

area’s attainment date. This will allow

the Commonwealth to complete at least

one full cycle of tests at final cutpoints

prior to the areas’ attainment date. The

Commonwealth has already

implemented final cutpoints for 1996

and newer vehicles. Since all vehicles

subject to the program will receive at

least one inspection at final cutpoints

prior to the area’s attainment date, the

Commonwealth will achieve the

emission reductions that it has planned

for in its attainment demonstration. At

this time, EPA does not believe that it

is necessary or justifiable to delay

approval of the Commonwealth’s

attainment demonstration due to the

fact that the Commonwealth has not

implemented all pass-fail standards on

schedule in the Philadelphia area. The

Commonwealth has provided EPA

assurances that it will implement the

final cutpoints upon issuance of the

guidance referenced herein. The

Commonwealth has implemented a

successful enhanced I/M program and

continues to work with EPA on

technical issues regarding the ASM

program. EPA believes that the

Commonwealth has achieved and will

continue to gain air quality benefits

from its enhanced I/M program as

necessary for the Philadelphia area to

achieve attainment of the ozone

NAAQS.

Q. NOX Substitution

Comment: We received comments

that suggest that EPA should not allow

States the opportunity to substitute NOX

reductions for the VOC reductions

specifically required by section

182(c)(2)(B) of the CAA. In general, the

commenter contends that methodology

in EPA’s NOX Substitution Guidance is

not ‘‘at least as effective’’ as

photochemical grid modeling for

making attainment demonstrations. The

comment states that NOX substitution

ignores one of the Ozone Transport

Assessment Group’s (OTAG) key

conclusions that ‘‘VOC controls are

effective in reducing ozone locally and

are most advantageous to urban

nonattainment areas.’’ Additionally, the

commenter notes that some data suggest

that progress towards attainment in

urban areas may not take place, or may

even be reversed, by the substitution of

NOX reductions for required VOC

reductions. Finally, the commenter

states that EPA should not allow NOX

substitution as part of the attainment

demonstration under section 182

(c)(2)(A). In particular, the commenter is

opposed to the States being allowed to

utilize, carte blanche, NOX substitution

for section 182(c)(2)(A) attainment

demonstrations without undergoing an

additional, more rigorous analytic test

that considers local conditions and

potential impacts to real world

attainment.

Response: The EPA disagrees with the

comment that the Agency should not

allow NOX substitution under section

182(c)(2)(B), Reasonable Further

Progress Demonstration. Section

182(c)(2)(C) specifically allows NOX

substitution where the resulting

reductions ‘‘in ozone concentrations’’

are ‘‘at least equivalent’’ to that which

would result from the VOC reductions

required in the demonstration of

reasonable further progress (RFP) under

section 182(c)(2)(B). The second

sentence of section 182(c)(2)(C) requires

EPA to issue guidance ‘‘concerning the

conditions under which NOX control

may be substituted for [or combined

with] VOC control.’’ In particular, the

Agency is authorized to address in the

guidance the appropriate amounts of

VOC control and NOX control needed,

in combination, ‘‘in order to maximize

the reduction in ozone air pollution.’’

Further, the Act explicitly provides that

the guidance may permit RFP

demonstrations which allow a lower

percentage of VOC emission reductions.

In light of the entire set of language and

Congress’s evident intent under this

subsection to maximize the opportunity

for ozone reductions, EPA believes that

section 182(c)(2)(C) confers on the

Agency the discretion to select, for

purposes of determining equivalent

reductions, a percentage of NOX

emission reductions which is

reasonably calculated to achieve both

the ozone reduction and attainment

progress goals intended by Congress.

This approach is described in detail in

EPA’s 1993 NOX Substitution Guidance.

Based on our review of all the

information submitted in these

attainment demonstrations and

consistent with the 1993 NOX

Substitution Guidance, EPA believes

that the percentage of ozone reduction

benefits achieved by application of NOX

controls is at least equivalent as that

achieved by application of VOC controls

because both the NOX and VOC controls

are necessary if the areas are to attain

the NAAQS. That is, the basis for

equivalency is the ability of a given

control strategy (i.e., any particular mix

of NOX and VOC emission reductions)

to effect attainment of the ozone

NAAQS by the designated attainment

year ( NOX Substitution Guidance, EPA–

452/R–93–015, January 1994, at page 2).

In addition to the OTAG conclusion

as noted by the commenter, the States

further concluded that widespread NOX

reductions are needed in order to enable

many areas to attain the ozone NAAQS.

EPA subsequently made the same

determination through the NOX SIP Call

rulemaking. Thus, NOX substitution is

generally consistent with OTAG’s and

EPA’s conclusions that NOX reductions

are effective in reducing ozone

concentrations.

As described in the NOX SIP call

rulemaking, the OTAG process included

54162 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

13October 30, 2000 is the first business day

following the expiration of the 128-day period.

lengthy discussions on the potential

increase in local ozone concentrations

in some urban areas that might be

associated with a decrease in local NOX

emissions. The OTAG modeling results

indicate that urban NOX emissions

decreases produce increases in ozone

concentrations locally, but the

magnitude, time, and location of these

increases generally do not cause or

contribute to high ozone concentrations.

In particular, for the NOX emissions

reductions due to the NOX SIP call

budgets, EPA determined that any

disbenefits are expected to be very

limited compared to the extent of the air

quality benefits expected from these

budgets.

Regarding section 182(c)(2)(A),

Attainment Demonstration, EPA

believes that NOX substitution for VOC

emissions deemed to be required as

‘‘additional emission reductions’’ is

permissible as part of the Weight of

Evidence analysis. The EPA agrees with

the comment that such NOX substitution

must be justified through additional

analyses. For example, if modelpredicted peaks show greater

improvement when low level NOX

emissions are reduced versus VOC or

elevated NOX emissions, then

substituting an equal amount of low

level NOX reductions for the otherwise

required ‘‘additional emissions

reductions’’ of VOC would be

acceptable.

R. Measures Under Legal Review

Comment: We received comments

asserting that because the Tier 2/Sulfur

and NOX SIP call rules are under legal

review EPA should not credit the

attainment demonstrations with

reductions from these programs.

Response: EPA disagrees with the

comment. On October 27, 1998 (63 FR

57356), EPA promulgated the ‘‘Finding

of Significant Contribution and

Rulemaking for Certain States in the

Ozone Transport Assessment Group

Region for Purposes of Reducing

Regional Transport of Ozone,’’

commonly referred to as the NOX SIP

call. On March 3, 2000, the DC Circuit

issued its decision on the NOX SIP Call

regarding the 1-hour ozone NAAQS

ruling in favor of EPA on all the major

issues. See Michigan v. EPA, supra. On

June 22, 2000, the Court ordered that we

allow the States and the District of

Columbia 128 days from June 22, 2000

to submit their SIPs. Accordingly, 19

States and the District of Columbia were

required to submit SIPs in response to

the NOX SIP Call by October 30, 2000.13

On August 30, 2000, the D.C. Circuit

ordered that the June 22, 2000 Order be

amended to extend the deadline for

implementation of the NOX SIP Call

from May 1, 2003 to May 31, 2004. In

a separate rulemaking, we are

addressing the Court’s remand of the

definition of electricity generating units,

the control level for large stationary

internal combustion engines and the SIP

submittal and compliance dates for

these actions, which affect less than 10

percent of the total emission reductions

called for by the NOX SIP Call.

Likewise, on February 10, 2000 (65 FR

6698), EPA promulgated the ‘‘Control of

Air Pollution From New Motor

Vehicles: Tier 2 Motor Vehicle

Emissions Standards and Gasoline

Sulfur Control Requirements,’’

commonly referred to as the Tier 2/

Sulfur rule.

S. Contingency Measures

Comment: We received comments

asserting that the Post-1996 ROP and the

attainment demonstration SIP lacks

contingency measures as required under

the CAA.

Response: EPA believes the

contingency measure requirements of

sections172(c)(9) and 182(c)(9) of the

CAA are independent requirements

from the rate-of-progress requirements

under sections 172(c)(2) and

182(c)(2)(B) and the attainment

demonstration requirements of sections

172(c)(1) and 182(c)(2)(A). The

contingency measure requirements are

to address the possibility that an area

will fail to meet a rate-of-progress

milestone or will fail to attain. The

contingency measure requirements have

no bearing on whether a state has

submitted a SIP that projects that the

SIP contains enough control measures to

achieve sufficient rate-of-progress

towards attainment or to attain the

NAAQS. The ROP SIP provides a

demonstration that the ROP requirement

ought to be fulfilled, but the

contingency measure SIP requirements

concern what will happen only if ROP

is not actually achieved. The attainment

demonstration SIP provides a

demonstration that the attainment

requirement ought to be fulfilled, but

the contingency measure SIP

requirements concern what will happen

only if the area fails to attain. EPA

acknowledges that contingency

measures are a required SIP revision,

but does not believe that these measures

must be approved as part of an

attainment demonstration.

Consequently, EPA believes it can

approve this attainment demonstration

even though the required contingency

measures have not yet been submitted.

Pennsylvania will still be required to

submit contingency measures and EPA

will act upon them when submitted.

T. Measures for the 1-Hour NAAQS and

for Progress Toward 8-Hour NAAQS

Comment: One commenter notes that

EPA has been working toward

promulgation of a revised eight-hour

ozone National Ambient Air Quality

Standard (NAAQS) because the

Administrator deemed attaining the

one-hour ozone NAAQS is not adequate

to protect public health. Therefore, EPA

must ensure that measures be

implemented now that will be sufficient

to meet the one-hour standard and that

make as much progress toward

implementing the eight-hour ozone

standard as the requirements of the CAA

and implementing regulations allow.

Response: The one-hour standard

remains in effect for all of these areas

and the SIPs that have been submitted

are for the purpose of achieving that

NAAQS. Congress has provided the

States with the authority to choose the

measures necessary to attain the

NAAQS and EPA cannot second guess

the States’ choice if EPA determines that

the SIP meets the requirements of the

CAA. EPA believes that the SIPs for the

severe areas meet the requirements for

attainment demonstrations for the onehour standard and thus, could not

disapprove them even if EPA believed

other control requirements might be

more effective for attaining the eighthour standard. However, EPA generally

believes that emission controls

implemented to attain the one-hour

ozone standard will be beneficial

towards attainment of the eight-hour

ozone standard as well. This is

particularly true regarding the

implementation of NOX emission

controls resulting from EPA’s NOX SIP

Call. Finally, EPA notes that although

the eight-hour ozone standard has been

adopted by the EPA, implementation of

this standard has been delayed while

certain aspects of the standard remain

before the United States Circuit Court of

Appeals. The States and the EPA have

yet to define the eight-hour ozone

nonattainment areas and the EPA has

yet to issue guidance and requirements

for the implementation of the eight-hour

ozone standard.

U. Other Comments

Comment: We received comments

that oppose the removal of any of

Pennsylvania’s 67 counties from the

Ozone Transport Region on the grounds

that the south-central and central

counties have a significant impact on

intrastate transport and attainment in

Philadelphia.

Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations 54163

Response: The comment is not

germane to this action. EPA is

approving the attainment demonstration

and Post1996 ROP plans for the

Philadelphia area. EPA is not approving

removal of any Pennsylvania counties

from the Ozone Transport Region.

III. Final Action

A. Attainment Demonstration

EPA is fully approving the

Pennsylvania’s one hour ozone

attainment demonstration for the

Philadelphia area which was submitted

on April 30, 1998, and supplemented on

August 21, 1998, February 25, 2000, and

July 19, 2001, including its RACM

analysis and determination. The

attainment demonstration meets the

requirements of section 182 (c)(2) and

(d) of the Act and establishes an

attainment date of November 15, 2005

for the Philadelphia area.

B. Commitments

EPA is approving the Pennsylvania

commitments made on July 31, 1998,

February 25, 2000, and July 19, 2001.

The commitments are to:

(1) Submit measures by October 31,

2001 for additional emission reductions

as required in the attainment

demonstration test, and to revise the SIP

and motor vehicle emissions budgets by

October 31, 2001 if the additional

measures affect the motor vehicle

emissions inventory,

(2) Revise the SIP and motor vehicle

emission budgets using MOBILE6

within one year after it is issued, and

(3) Perform a mid-course review by

December 31, 2003.

C. Post-1996 ROP Plan

EPA is approving Pennsylvania’s

Post1996 ROP plans as a SIP revision for

the Philadelphia area. These revisions

were submitted on April 30, 1998, July

31, 1998, and supplemented on

February 25, 2000.

D. Mobile Budgets of the Control

Strategy Plans

EPA is approving the following

mobile budgets of the Post-1996 ROP

plans and the 2005 attainment

demonstration plan:

TRANSPORTATION CONFORMITY BUDGETS FOR THE PHILADELPHIA AREA

Type of control strategy SIP Year VOC (TPD) NOX (TPD) Date of adequacy determination

Post-1996 ROP Plan .......................................... 1999 88.6 109.6 June 23, 2000 (65 FR 36438, June 8, 2000).

Post-1996 ROP Plan .......................................... 2002 69.52 93.13 June 23, 2000 (65 FR 36438, June 8, 2000).

Post-1996 ROP Plan .......................................... 2005 61.76 86.42 June 23, 2000 (65 FR 36438, June 8, 2000).

Attainment Demonstration .................................. 2005 60.18 77.46 November 26, 2001.

Please note that EPA is only

approving the 2005 attainment

demonstration and its current budgets

because the Commonwealth has

provided an enforceable commitment to

revise the budgets using the MOBILE6

model within one year of EPA’s release

of that model. Therefore, we are limiting

the duration of our approval of the

current budgets only until such time as

the revised budgets are found adequate.

Those budgets will be more appropriate

than the budgets we are approving for

conformity purposes for the time being.

Similarly, EPA is only approving the

2005 attainment demonstration and its

current budgets because Pennsylvania

provided enforceable commitments to

adopt additional measures to strengthen

the attainment demonstration by

October 31, 2001 and to submit revised

budgets by October 31, 2001 if the

additional measures affect the motor

vehicle emissions inventory. Therefore,

we are limiting the duration of our

approval of the current budgets only

until such time as any such revised

budgets are found adequate. Those

revised budgets will be more

appropriate than the budgets we are

approving for conformity purposes for

the time being.

IV. Administrative Requirements

A. General Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a ‘‘significant regulatory action’’ and

therefore is not subject to review by the

Office of Management and Budget. This

action merely approves state law as

meeting Federal requirements and

imposes no additional requirements

beyond those imposed by state law.

Accordingly, the Administrator certifies

that this rule will not have a significant

economic impact on a substantial

number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.). Because this rule approves preexisting requirements under state law

and does not impose any additional

enforceable duty beyond that required

by state law, it does not contain any

unfunded mandate or significantly or

uniquely affect small governments, as

described in the Unfunded Mandates

Reform Act of 1995 (Public Law 104–4).

For the same reason, this rule also does

not significantly or uniquely affect the

communities of tribal governments, as

specified by Executive Order 13084 (63

FR 27655, May 10, 1998). This rule will

not have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999), because it merely

approves a state rule implementing a

Federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. This rule also is not

subject to Executive Order 13045 (62 FR

19885, April 23, 1997), because it is not

economically significant. In reviewing

SIP submissions, EPA’s role is to

approve state choices, provided that

they meet the criteria of the Clean Air

Act. In this context, in the absence of a

prior existing requirement for the State

to use voluntary consensus standards

(VCS), EPA has no authority to

disapprove a SIP submission for failure

to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. As required by

section 3 of Executive Order 12988 (61

FR 4729, February 7, 1996), in issuing

this rule, EPA has taken the necessary

steps to eliminate drafting errors and

ambiguity, minimize potential litigation,

and provide a clear legal standard for

affected conduct. EPA has complied

with Executive Order 12630 (53 FR

8859, March 15, 1988) by examining the

takings implications of the rule in

accordance with the ‘‘Attorney

General’s Supplemental Guidelines for

the Evaluation of Risk and Avoidance of

Unanticipated Takings’’ issued under

the executive order. This rule does not

impose an information collection

burden under the provisions of the

54164 Federal Register / Vol. 66, No. 208 / Friday, October 26, 2001 / Rules and Regulations

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

B. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit 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 United

States prior to publication of the rule in

the Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

C. Petitions for Judicial Review

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 December 26,

2001. 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 to approve the

Post-1996 ROP plan, and the one hour

ozone attainment demonstration as SIP

revisions for the PhiladelphiaWilmington-Trenton ozone

nonattainment area submitted by the

Commonwealth may not be challenged

later in proceedings to enforce its

requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and

recordkeeping requirements.

Authority: 42 U.S.C. 7401 et seq.

Dated: October 15, 2001.

James W. Newsom,

Acting Regional Administrator, Region III.

40 CFR part 52 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 et seq.

Subpart NN—PA

2. Section 52.2037 is amended by

revising the section heading and adding

paragraphs (i), (j) and (k) to read as

follows:

§ 52.2037 Control strategy and rate-ofprogress plans: ozone.

* * * * *

(i) EPA approves the Commonwealth

of Pennsylvania’s Post 1996 (ROP) plan

SIP revision for milestone years 1999,

2002, and 2005 for the Pennsylvania

portion of the Philadelphia-WilmingtonTrenton severe ozone nonattainment

area. These revisions were submitted by

the Pennsylvania Department of

Environmental Protection on April 30,

1998, July 31, 1998 and supplemented

on February 25, 2000.

(j) EPA approves the one hour ozone

attainment demonstration SIP for the

Philadelphia-Wilmington-Trenton area

submitted by the Pennsylvania

Department of Environmental Protection

on April 30, 1998, August 21, 1998,

February 25, 2000 and July 19, 2001

including its RACM analysis and

determination. EPA is approving the

enforceable commitments made to the

attainment plan for the PhiladelphiaWilmington-Trenton severe ozone

nonattainment area submitted by the

Pennsylvania Department of

Environmental Protection on July 31,

1998, February 25, 2000 and July 19,

2001. The enforceable commitments are

to:

(1) Submit measures by October 31,

2001 for additional emission reductions

as required in the attainment

demonstration test, and to revise the SIP

and motor vehicle emissions budgets by

October 31, 2001 if the additional

measures affect the motor vehicle

emissions inventory,

(2) Revise the SIP and motor vehicle

emission budgets using MOBILE6

within one year after it is issued, and

(3) Perform a mid-course review by

December 31, 2003.

(k) EPA approves the following

mobile budgets of the Post-1996 plans

and the 2005 attainment plan:

TRANSPORTATION CONFORMITY BUDGETS FOR THE PHILADELPHIA AREA

Type of Control Strategy SIP Year VOC

(TPD)

NOX

(TPD) Date of adequacy determination

Post-1996 ROP Plan ................................................... 1999 88.6 109.6 June 23, 2000 (65 FR 36438, June 8, 2000).

Post-1996 ROP Plan ................................................... 2002 69.52 93.13 June 23, 2000 (65 FR 36438, June 8, 2000).

Post-1996 ROP Plan ................................................... 2005 61.76 86.42 June 23, 2000 (65 FR 36438, June 8, 2000).

Attainment Demonstration ........................................... 2005 60.18 77.46 November 26, 2001.

(1) Please note that EPA is only

approving the 2005 attainment

demonstration and its current budgets

because the Commonwealth has

provided an enforceable commitment to

revise the budgets using the MOBILE6

model within one year of EPA’s release

of that model. Therefore, we are limiting

the duration of our approval of the

current budgets only until such time as

the revised budgets are found adequate.

Those budgets will be more appropriate

than the budgets we are approving for

conformity purposes for the time being.

(2) Similarly, EPA is only approving

the 2005 attainment demonstration and

its current budgets because

Pennsylvania provided enforceable

commitments to adopt additional

measures to strengthen the attainment

demonstration by October 31, 2001 and

to submit revised budgets by October

31, 2001 if the additional measures

affect the motor vehicle emissions

inventory. Therefore, we are limiting the

duration of our approval of the current

budgets only until such time as any

such revised budgets are found

adequate. Those revised budgets will be

more appropriate than the budgets we

are approving for conformity purposes

for the time being.

[FR Doc. 01–26679 Filed 10–25–01; 8:45 am]

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