SIP GUIDANCE NOTEBOOK 3 ------- N. PM-1O ------- N. Particulate Matter (PM-10 ) N.1. Designations and Classifications for Initial PM-10 Nonattainment Areas, (Initial notice) 56 FR 11101 (Mar. 15, 1991) N.2. Designations and Classifications for Initial PM-1O Nonattainment Areas, (Correction notice) 56 FR 56694 (Aug. 8, 1991) ** Codification of Designations and Classifications in 40 CFR, Part 81), 56 FR 56694 (Nov. 6, 1991) (See Designations section] N.3. Preparation, Adoption, and Submittal of State Implementation Plans; PM-10, Sulfur Dioxide, and Lead Nonattainment and Unclassifiable Area Designations, 56 FR 16274 (Apr. 22, 1991) (Information notice) N.4. Questions and Answers (Q&A’s) for Particulate Matter (PM- 10), Sulfur Dioxide (S02), and Lead (Pb) - - Nov. 4, 1991 memo from Joe Paisie ** State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Supplemental; Proposed Rule 57 FR 18070 (Apr. 28, 1992) (See General and Cross-Cutting Guidance section] N.5. Reclassification of Moderate PM-10 Nonattainment Areas to Serious Areas, (Proposal) 56 FR 58656 (Nov. 21, 1991) N.6. Air Quality Designations and Classifications; Amendments; Final Rule, 58 FR 3334 (Jan. 8, 1993) N.7. State Implementation Plans for Nonattainment Areas for Particulate Matter, 57 FR 19906 (May 8, 1992) N.8. Designation of Areas for Air Quality Planning Purposes (Proposal), 57 FR 43846 (Sept. 22, 1992) - N.9. Designation of Areas for Air Quality Planning Purposes (Final), 58 FR 67334 (Dec. 21, 1993) ** Designation of Areas for Air Quality Planning Purposes; Amendments and Corrections, 57 FR 56762 (Nov. 30, 1992) (See Designations section] N.10. Designation of Area for Air Quality Planning Purposes; Montana; Designation of Whitefish PM-b Nonattainment Area, 58 FR 36908 (July 9, 1993) (NPR) (redesignation from unclassifiable to nonattainment) N.h. Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Revision to the State Implementation Plan; Addressing PM-hO for Anthony (Proposal), 58 FR 18190 (Apr. 8, 1993) ------- N.12. Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Revision to the State Implementation Plan; Addressing PM-l0 for Anthony (Final), 58 FR 47383 (Sept. 9, 1993) (application of § 188(f) waiver policy) N.l3. Approval and Promulgation of Air Quality Implementation Plans; Texas; Revision to the State Implementation Plan Addressing PM-b for El Paso (Proposal), 58 FR 52467 (Oct. 8, 1993) N.l4. Approval and Promulgation of Air Quality Implementation Plans; Texas; Revision to the State Implementation Plan Addressing PM-b for El Paso (Final), 59 FR 2532 (Jan. 18, 1994) (interpreting § 179B re areas affected by international transport) N.15. Clean Air Act Conditional and Limited Approval and Promulgation of PM-l0 Implementation Plan f or Colorado, 58 PR 66326 (Dec. 20, 1993) (NPR) (complicated approval process because of potential deficiencies and to limit FIP liability) N.l6. State Implementation Plans for Serious PM-lO Nonattainment Areas, and Attainment Date Waivers for PM-b Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 59 FR 41998 (Aug. 16, 1994) N.17. Clean Air Act Approval and Promulgation of PM-b Implementation Plan for Colorado; Designation of Areas for Air Quality Planning Purposes, 59 FR 47088 (Sept. 14, 1994) (includes contingency measures discussion and use of § 110(k) (6) to correct original nonattainment area boundaries) N.l8. Considering PM-10 Air Quality Data and the Approaching Attainment Deadline While Reviewing Attainment Demonstrations for the Initial Moderate PM-b Nonattainment Areas -- Oct. 20, 1994 memo from Joe Paisie N.19. Attainment Determinations and the Processing of Initial PM-b Nonattainment Area SIPs -- Nov. 14, 1994 memo from Sally L. Shaver ------- Federal Regsster I Vol. 56, No. 51 / Friday. March IS. 1991 f Rules and Regulations 1I1SI LICL.teaant Commander. U.S. Coast Guard. project attorney. Ninth Coasi Guard District Legdl Office. fliscussion of Regulations The International Bay City River Roar will be conducted on the Sag i naw River between the Liberty Bridge and the Veterans Memorial Bridge on the 12th. 13th. and 14th of July igBi. This event will have an estimated 70 hydroplanes which could pose hazards to navigation in the area. Any vessel desiring to transit the regulated area may do so only with prior approval of the Patrol Commander (Officer In Charge. U.S. Coast Guard Ste tion Sagniaw River. Ml ). Economic Assessment and Certification This regulation is considered to be non-major un4er Exeentive Order 12291 -on Federal ‘gn 6 bon and nonsignificant under Department of Transportation ‘regulatory policies and pmcedures (44 FR 11034; February 26. 1979). The economic impact has been found to be so thmal that a full regulatory evaluation is unnecessary. This event will draw a large number of sp a crafi o the erea for the durtiimvfdmevent. This should have • favorable Impact on commercial facilitie, providing services to the spectators. Any impact enaxnmerdal traffic in the area will be negll ible. Since the impaCt of tide regulation is expeCted to bemmimaL the Ccast Guard certifies that It wiilawt have a significant economic impact on a subsbi,et*l mamber of small entities. Federalism This action ha, been azelysed is accoiiiv i r with the principle. and aiteria onnialned In Executive Order lzel2, z d 1t1I haen determ ed that this inismakftig does not have sufficient federalism implications to warrant the preperatkin of a Federalism Assessment. List of Subjects ln Pert 190 Marine safety. N A, sk 1 (water). FInal Regulations Iuamslderalleud*e L gtdzig . port 100 of title 33. Code of eral Regulations. ani. _ L.A kIJ m 1. The .ltycltathmfarpartlOO contlnuesloreede, Toflewu: Authority: 33 U.$C. 1333; 49 CFR a d 33 _,. 10026. 4. Part 100 would be amended to add a temporary section 10035 -T0918 to read as foIlow f 100.35-10414 Inturnationsi B .1 City River Rear, Saginaw Rivet, Bay City, ML (a) Regulated Area. That portion of the Saginaw River from the Liberty Bridge on the north to the Veterans Memorial Bridge on the south. (b) Special Locci Regu!alions. (1) The above area will be closed to navigation and anchorage, exoept when expressly authorized by the Coast Guard Patrol Commander, from 930 am. (EDST) until 4 p.jn. (EDST) on 12 July 1991. from t aO a.m. (EDST) until 4:30 p.m. (EDST) on 13 july 1991. and from 8:30 a.m. (EDST) until 5:30 p.m. EDST) on 14 July 1991. (2) If the weather on 14 July 1991 is Inrietnent. the river closure will be postponed until taO a.m. (EDST) until 5:30 p.m. (PDST) on 15 July 1991. If postponed, notice will be given on 14 July 1991 over the US. Coast Guard Radio Net. (3) The Coast Gnard will patrol the regulated area under the rection of a designated Coast Guard Patrol, C n m*nder. The Patrol Commander may be contacted on channel 16(156.8 MHZ) by the call sign “Coast Guard Patrol Commander”. Any vessel, not authoi d to participate In the event. desiring to transit the regulated area may do so only with prior al of the Patrol Coi,imnnder and when so directed by that officer. Transiting vessels will be operated at bare steerageway. and will exercise a igh degree of caution In the area. (4) The Patrol Commander may direct the anchoring. mooring, or movement of any boat or vessel within the regulated area. A . co..sion of .bmp, short signal. by whistle erlssrn from vessels patrolling the area undm the direction of the US. Coast Geard Pabel Commander shall serve as a signul to stop. Any vessel so signaled ihall stop and shall comply with the order, of the Patrol Commander. Failure to do so may result in expulsion flora The area. dtathm for failure to comply. or both. f5) The Petrol Commander may establisb vessel size and speed liftaH i. , eed operating eoadttlon . (I ) The Patent Commamlor may rest vassal operation s n The regulated aims to veaucls g flThPatro1Commaitder.iy tei nate The mazine event or ‘Sm operation of any vessel 51 any time ft Is deemed necessary ‘for the protection of Life and property. Dated: March 5 1901. GA. Penlngton. Rear Admiral. U.S Coast Cuas Commander. Ninth Coast CaordD,stricL IFR Doc. 91-4221 Plied 1-1441; &45 am) muies coca .ts-,s-n ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 l*D -FRL-3413 -12 1 Designations and ClassIfIcatIons for Initial PM-b Nonattainment Areas aomicv: Environmental Protection Agency (EPA). AcTiose Notice announcing designations and classifications for Initial PM-SO nonattalament smau. BUM ARY: Under sectloellw(d)(4)(B) of the (sean Air Act (Act) as amended by the Clean Air Act Amendments of 1090 (Pub. L No. 101—649. November 15. 1990), certaIn areas were designated as nonatI i ii* far the pollidaatl3l-1O by operation .f law upon en .. tcI the Amendmezita. These areas teolude “Group” I smas 1dent ed at 52’FI (August 7,1987) endue subsequently clarified at 55 F 45799 tOctobe ? 31, 1990). Other areas La , Cthup fl areas) can*ai h 1 g sites erbiub air quality moi*,elng date showed a violation of the nafiamal ambient air quality standards (NAAQSJ rfi 4-1D prior to January 1. I were ales designated nona*tsinn eut for PM-Ia by operation of law upon narhn nt . A other areas weredesignated unclassified for PM-Ia by operation of law. By this notice, EPA Is sanasmcing, as required by section 107(dJ(2 .) of the amended Act, aD of those areas that were designated nonattaInmant rPM- 10 by operation of Jaw on November15, 1990. By this notice, EPA liaise announcing, as requhed by sedllcas 186(a)D! ’ S* amended Rct,that fl of the Ireas dasignatEdlionattablmefltfarPM- 10 by upeatIon f1uw upon snaCthmtit of the ? dmeMa were claisthed as moderitte nonitttaimaent areas at that time. In MJ u iO with ici5kni 189(a)( ,9 e.niua1 subndt ’ Stete mp6w nbiUuu lilans tS!P ’s for these areas by v er IS. 199L DAT Written conu ses this notice must be received byAprll 15, 1 591 at the address below, crpamiWI OA These adi s will become effective on May14, 1991. ------- 11102 Federal Register I Vol. 56. No. 51 I Friday. March 15, 1991 / Rules and Regulations ADDRESSES: Written comments on this action should be addressed to Larry D. Walince, Particulate Matter Programs Section. Air Quality Management Division (MD—15). Office of Air Quality Planning and Standards. U.S. Environmental Protection Agency. Research Triangle Park, NC 27711. The air quality monitoring data supporting the nonattainment designation of the former Group 11 and 111 areas monitoring violations of the PM—b NAAQS prior to January 1, 1989 are available from the respective EPA Regional Office which serves the State where the affected area is located. The addresses of the Regional Offices are as follows: • State Al, Programs Branch. EPA Region L J.F.K. Federal Building. Boston, MA 02203- 2211 • Air Programs Branch. EPA Region 1 1.28 Federal Pica, New York, NY 10278 • Air Programs Branch. EPA Region W. 841 Chestnut Building. Philadelphia. PA 19107 • Air Programs Branch. EPA Region IV. 345 Courtland Street, NE. Atlanta. GA 30385 • Air end Radlatio Branch. EPA Region V. 230 South Dearborn Street. Chicago, IL 88604 • Air Programs Branch. EPA Region VL 1445 Pou Avenue, Dallas. TX 75202-2733 • Air Branch. EPA Region VII 728 MInnesota Avenue, Kansas CIty. 1(8 88101 • Air Programs Branch, EPA Region VUL 999 bath Street. Denver Place—Suft 500. Denver. CO 80 —24O5 • Air Programs Branch, EPA Region IX, 75 Hawthorne Street. San Francisco, CA 94105 • Air Programs Branch. EPA RegIon 1(1200 Sixth Avenue Seattle, WA 08101 coe uemae e oeme ae coemc Larry D. Wallace. Particulate Matter Programs Section, AIr Quality Management Division. Office of Air Quality Planning and Standards. U.S. Environmental Protection Agency, (019) 541-0906 or FTS 629-0906 and at the address Indicated above. IUPPtEN08 TARY 08FORMAT!OI 1. Background A. 1987 Revision of the NAAQS for Particulate Matter On July 1, 1987. EPA revised the NAAQS for particulate mattan replacing total suspended particulate. (TSP) as the Indicator for particulate matter with a new Indicator that Included only those particles with an aerndyiu.mlt diameter less than or equal to a nomInal 10 micrometers (called ‘PM-10 ’) (52 FR 24834). At the same time. EPA set forth regulations for Implementing the revised particulate matter standards and announced EPA’. SIP development policy on PM—b control strategies necessaiy to auure attainment and maintenance of the PM-b NAAQS (see generally 52 FR 24872). The EPA adopted a PM—b SIP development policy dividing all areas of the country into three categories based on their probability of violating the new NAAQS: (1) Areas with a strong likelihood of violating the PM—IC) NAAQS and requiring substantial SIP adjustment were placed in Group L (2) areas where attainment of the PM—b NAAQS was possible and existing SiP’s needed less adjustment were placed In Group IL (3) areas with a strong likelihood of attaining the PM-IC) NAAQS and therefore needing adjustment only to their preconstructlon review program and monitoring network were placed in Group 111(52 FR 24872. 24679—24682). B. Prior listing of and Modification to PM-iC Groups I. IL and I lIArea . in accordance with the standards. policies, and regulations published on July 1.1987 for revising and implementing the new particulate matter standards, EPA identified and listed the Group I and Group 11 areas In each State In a notice published on August 7.1987 (52 FR 29383). That notice also indicated that any area of the country not listed as Group! or U was placed In Group 111(52 FR 29383). The EPA subsequently modified the listing for three areas and announced these revisions In a notice published on March 28, 1989 (54 FR 12620). Specifically, the 1989 notice Indicated that Porter County, Indiana, was changed from Group Ito Group IL Mono Basin. California. was changed from Group UI to Group II; and Sandpoint. Idaho. was changed from Group Ito Group IL On October 31, 1990. EPA published technical corrections clarifying the boundaries of concern for some of the areas previously Identified as Groups! and U areas (55 FR 45799). When EPA listed the Initial groupings for areas In the August1987 notice, the Groups land 11 areas of concern wale generally described as cities, towns, counties, or planning areas. The EPA indicated at that time that these descriptions were only the Initial definitions of the areas to be Investigated In the SIP development process and would be better defined later. The clarifications to the Groups! and II areas announced In October 1990 specifically defined and delineated the boundaries of the Groups! and Group U areas in question based on informatIon obtained In the SIP development process and EPA guidelines and procedures for determining particulate matter boundaries. With respect to Group II areas, the October 1990 notice also set forth those areas containing a site for which air quality monitoring data showed a violation of the NAAQS prior to January 1. 1989.’ II. Today’s Action in the 1990 Amendments to the Cler Air Act. Congress used the PM—b grouping scheme as the starting point for designating areas on nonattainment and unclassifiable for PM—b by operation of law upon enactment of the Amendments. Group I areas Identified in 52 FR 29383 (August?. 1987) and as subsequently clarified m 55 FR 45799 (October 31, 1090) were designated nonattalnment for PM—b by operation of law’ (see section 107(d)(4)(B)(i) of the amended Act). Any other area (I.e., Group II or III areas) containing a site for which air quality monitoring data showed a violation of the NAAQS for PM—b prior to January 1. 1989 was also designated nonattaimnent for PM—b by operation of law upon enactment (see 107(d)(4)(B)(II) of the amendment Act). All other areas were designated unclassifiable for PM—b by operation of law (see 107(d](4)(B)(W) of the amended Act). By thIs notice, EPA I . announcing. as required by section 107(d)(2) of the amended Act, all of those areas that were designated nonattalnment for PM— 10 by operation of law on November 15, 1990. SectIon 188(a) of the amended Act provides that those areas designated nonattatnment for PM—bO upon enactment of the 1990 Clean Air Act Amen lm.nts were, by operation of law. classified as moderate PM—b nonattainment areas at the time of their designation as nonattainment. By this notice, EPA Is also announcing. as required by section 188(a) of the amended Act, that all of the areas designated as nonattabment for PM—b by operation of Law upon enactment of the Amendments were classified as moderate nonattahunent areas at that tIme. - For administrative efficiency reasons, EPA will defer the ministerial act of formally codifying these PM—b designations and classifications In 40 CFR part 81 until EPA codifies designations and dasslficatlons for other pollutants sometime within the next few months. This notice Is provided now In order to make the annonn1 mPnts required by sections 107(d)(2) and 188(a) of the revised Act and to ensure that SIP development For ‘Footnote I of thi October 31.1990 otlce references Group U sreas with violations of he PM- 10 NAAQS. ‘The notice published no October 31. 1990 1 5 FR 45799) reflects the re laions announced In the notlc published en March21 1919(54 FR 12820). ------- Federal Register ‘ Vol. 56, No. 51 I Friday, March 15, 1991 I Rules and Regulations 11103 the new PM—b nonattainment areas proceeds in a timely fashion. Neither of these actions is subject to he APA requirements for notice-and. comment rulemaking (5 U.S.C. 553—557) or section 307(d) of the amended Clean Air Act. 3 Regarding designations. section 107(d)(2) of the amended Act requires the Administrator to publish a notice announcing designations occurring pursuant to section 107(d)(4), but explicitly provides that such announcement Is not subject to APA notice-and.comment rulemaldr.g procedures. Thus. Congress has expressly exempted the announcement of those areas designated nova ttainmerrt for PM—Ia by operation of law under section 1071d)(4)(B) from the notice-and- comment procedural requiraments of the APA. Regarding classifications. section 188(a) of the amended Act requires the Administrator to publish a notice announcing the classifications of these areas. Section 188(a) explicitly states that the provisions of section 172(a)(1)(B) pertaining to lack of notice and comment and Judicial review shall apply when the Administrator announces these classifications. Section 172(a)(1)(B), in turn, expressly exempts the classification announcement from the notice-end-comment procedures set forth in S U.S.C 553-557 of the AM. Nevertheless, for the purpose of providing en opportunity for public participation and avoiding error, FPA will entertain any comments on these actions that received by AprIl 15, 1991. The EPA. annoencement of these actions [ for purposes of sections 107(d)(2) and 188(a) ] will become effective on May 14. 1991. Thi, will provide enough lime for EPA to make any adjustments to the announcement that are appropriate In light of the comm ,nts. III. Initial PM-1O Nonattalnineset Areas The following list identifies all of those areas designated as nonattalninent for PM—b on November 15. 1990, upon enactment of the Clean Air Act Amendments of 1990. The EPA also announces, pursuant to section 188(a) of the amended Act, that all of these mess were classified as moderate by operation of law upon enactment of the Amendments. PM-b IrirnM. NONATTAINMENT AREAS ‘‘ Psii Sp it/Douglas planning eras: Tuwn.h i 23 south, Range 25 mid (123$. R25E) 123$, R29E 124$, R2SE 124$. RZIL T2SS. R27E T24S. R27E 123$. R2BE 124$. RaE. Nogalee plsni*ig war The at Sis ULJ Tv...,14s watalt a, wW* the Siete at kmia aid at sir 1235. RI3E. - 123$. R14E 124$ R13E 1245. RI4E to iuaig was TI$5.R9$,T1t$,RIOE &RiiE,TiiS 12E TI*4 IE. T125 . 88E. rsen. SlOE f12SffiIE TIOE Rs T.. ei T** 56w, aid Sis 4aS ng at 5c...Ji T1* R5 a.Sict Io.e$-$ b. S.c*Uw 17-10. rid a. SscOoa 29-32 Ptiowli , 1. ..iI.. was: The angle . IJ...... ...d t i. aid e i*ç TSN. R3W TeN. 57E. 12$, R3 125 R7$. TIN: RSE Ywia plsn.*ig war T....,Ji4 .. . T7$-RZIW. R23W 168-521W. R22W. 523W, 524W, 128-521W, 525W, 52W 526w. R25W 1103-521W, RaW, 523W. R24W. 525W. N., ienFUSii , ls.. , was: T ,.....J4 . T4$. S I OE 715.5188 7155188 __ __ a the poillos at T.. ., ,.J 1* SlOE 8at ss nat te at Sm Smi kdan RsssivaSwi , end the m ier.gls isimud . aat T U, . TiN. RI3E TIN. RISE 108, R13$. 165 RiSE in Valley Olrv*lg war I IM ticS #15050103 Series VaSey plarVig wa r I yiku& IMt #1505005. M ,mo0i Las platv* ig war inctides the &..ing . &t a. Si ons 1-12, 17. end 15 ci 14$. R2 5$. bh SedanS 25-36 at T , ,...,Ji 13$, 528E a. SeaSons 25-36 c i T .,.....tU 135 R27E 5ic&is 1-IS at T ..,..N. . T45. aid • 25wid 36 c i T.. ,...Ii 165 Sri ,lesi*t VaS , igsL South Coast M BaM Co’ Vl ,.milp was. ki eiiaI Valley plplv*Ig was. 30?(dK1) T the —‘.dAd asbelag ni1 ud to the óe i etae àeulgast.d these . r’ . procedural raqu1n l, dsedma XO 5J. u dJtaJ(u)dth. . .—i’ Act. Stat. and cowibes km c i Comem Comnwnlty at Eagle R . City at esc Mendenlisil Valley eras. V.— Sen 8 h aid Kern... ---- — Sobe l wemls . Los MgeIe Orrigs requirements todays adieu. 5 aol amoog the actions listed In section ------- 11104 Federal Register I Vol. 50, No. 51 I Friday. March 15. 1991 I Rules and Regulations PM-b hirnAL NONATTAINMENT AREAS “ 1 —Continued State and cwities kes of Concern Manes. Denver. kapahoe. Jet. fomon. Douglas, and Boulder —Ccrmscticit New Haven __ Barmodi arid ,‘ INilom : COdL La$eds Malnar - Wayies. Romssy — LaHe i e Pos aa eow_____ - OItioc a Denver MetropolItan erear AS of Denver. Jeflerson, and Douglas Corsities, Boulder County (sxckdng the Rocky Hot Nationat Pert) and the Colorado automobile mepeclion and readjustment program p. i1l of Adams md i Counties Tellunde. c aty. City of Nsw Haven Boise Northern Bow idery—Segirvsng at a poist I i ties center of the clwm& of the Boise River, wf We the toe bet.sen sections 15 end 18 in I at .f4 $ ricitit ( T3N), range 4 east (R4E). oroassa serd Boise Rivec thence, west down the center of the diarmel of 0 ,5 Boles River be point elt the mouth of More’s Creok tHence, its a straight i. north 44 degrees and 35 imnutes west wtst the east Ire kitersocts Vie north ins of T5N (12 Tec See. Si) . thence, west to Ste nurU st corner T5N. P1W: Westent Bosmda,y—Thenoe, south to Vi i flwUt*st corner of T3N. RIW thence, east to the northwest owner of sectIon 4 c i T3N, P1W, thence, south to the southeast corner of section 32 ci T2N, RIW thence, wust to lie nwU eat corner of TIN. P1W; thence, soiatt to the southwest corner of section 32 of TZV, P1W; thence. west to me riorUi.. .L owner of TIN. PIW thence, south to die southwest corner ci TIN, RIW Southern Bosaidwy—Thence. east to the southwest wvw of section 33 ci TiN, R4E Eastern Boimdaiy—Thencs, north ng the lWth vat south omtar toe of TIN. R4E, 12N, R4E, and TON. R4E, Boise Mendan to the begreting point in e center of the cherstel of the Boise ar. City of Pkteltorst. City of POC5tISOL a. Lyons TourHf - b The area bor.mded on the north by 79th Street. on the west by Route 57. on the south by Sibley BolieWd and on the east by ties lflIoois/Inóana State toe. Oglesby iticb*ig the I*,.At Townships. ranges, and eecxrtar 13211, PIE, SI; T32N, P25, 85 TWI, PIE. S24; 13311, PIE. $2s. TO3N. R2E, $31; end TO3N, PIE, SOt Granita City Toeewtvp and Nanleld Tomwlr . Cities of East Citicago, Hamn o .4 Whllkig. end Gary. clinton Tounship . of p e 5que Me. The ares Worsted by IL*i. , .n Avenue from to bto & . . . wIth 1-75 seat to 1-04, 144 southwest to G. ..&..lJ Reed G ...ihtUJ Reed south to Soiteoler Reed, Sobastar Abed eciati vat sed to JJN....., . .toenue, JJf.. . . Avenue (Bidete Avenue Vwougll the dty of W ...JoUe ) to Sibley Avenue. Sibley Avenue west to Fist Street Fort Street south King Reed, (trig Reed suet to Je . Aversie, Jefferson Avciia south to Helen Road, Helen Reed east 4..4J Trenton Qesrmel, flerdon cleamsl north to the DetroIt River, the Detroit River north to 5 • Aisbsssedor Bridge. Ambassador Bridge to 1-7 5,1-75 to L0, ,U 5 . . . Avenue. The ares bounded by the ,.,A River from LaNiyuIto to Route 494. Route 494 sed to Route SI. Pouts SI ncith to 1-54 1 -94 west to Lafayette, and Lakysll south to the River. City of Coim. The wee Wielded by toes from Urteereaf MM) coor*.ate 70O00De , $34700Brat1 , st to 7O4000niE , 5347000rnN, south to 704 0mE, 5asI000mN. west to i03000mE, 5341000nV4, south to 70300Se , 534000 at1, west to lO2000mE, 5340000n . scssh to 102000n . SO39009 ’idf , east to 703X0n , sO3S000mit sosaf I to 703000n , 533800thnN , s to 7O4000rrE, SOOSOONirVI. south to 7Oi000rnE, S33BXOsr&1, wed to 7eeOO0n , tan8O0 -i*& south to 7IQ0O0n , 533500th1*4, seat to 0O0Se€ , 5335000mM, north to 7O000thi , 5340000mM, west to 89500DeE. 5340000inN , north to B95C00ir , 5345000mM, led to 700000mE, ea4a000ri*i. north to 7O000 5347000mM. Coivntla Fs T..,.ati lOON. P20W. Ce cis 7 5,9, 18. arid 11. I- . To..itt TI3N, P1 9W, as &..i 2, fib 11,14 13,15,11, East 19, 20,21,22,23, 54.27, *25, Bed 1/2 30, East 1/2 31. 32,33.34, vat 11219, P19W. section 4 5,8,7. Len. Dear. Rime 0.1 5*19 west steal?. - Las Vegas pLi* west H ,,.l4ll , . Ares 212. Ties area bounded by Mthoey Q ladwnglSb Mthomy $ew Me ,dco—Teicas, SE/4 LaMees 15’ imgIe N3200.—W10830s 7.5, Toeselt 268 Range 25. Sacdor . 35 and OS es tested by the New MwdOO.—Tisle Sbae tee art the sciati. The portion of the dy of Stodierwie eade of MIJSet SHeet, p is the wee bounded on the north by the southern boisidary of the City ci Stes er iwSe, on the west by 01o Route 57. on the sotafi by Vie southern border of Stuithsrwie T .$ifp . end on the seat by the OIseIWed Vitgfraa Wider. Medlord.Aehlerid atr qiiofty maintenance eras (ktclustng White Cfty3. sante Peec The area *10*1 ties saMe growth boundary. Eugene/Springftel The ares wish the saMe growth botaidaly. KisniaSi Fetar The ares *15*1 the when growth beutatary. LaGrwidar The area wish the satan growth botmda’y. I — ------- Federal Register I Vol. 56. No. 51 I Friday. March 15 , 1991 / Rules and Regulations 11105 PM—ID INITIAL NONATTAINMENT AREAS ‘‘—Continued bias. El Paso Utah 0011 LaM -- C o un r . Utah County n e Yakanc The poman the CIty 01 Seams bounded on the east by 1-6/East Ouweitvth Greenbalt, on the south by 104th Bbeet. on the west by the West Ouwansoh Greevtholt north 10 F morg Avemie. SW • north on Faemord 10 EiIioIt Bay, end Dearborn Street from Elliott Bay to l-5 The City 01 Kant wide parson of d ”. Green R j valley bo.jt cm lest and west by the tOOloot oontoi . on the north by South 212th Steet and on the south by Haghsoy 518. Tacoma mevcpobtan urea bounded on Vie north by Mama View Drive from C..•.....nce...ei* Bay seat to the 100.1001 contort. southeast along the 100-tout contort 10 84th Avemie East. south along 64th Avamie East , aI.i 4.J 101 - 5, 14 west 10 the 100.1001 contort near Pecdic Avemar, and north slang the 1004oc 1 contort 10 Cormns ,.. ....ant Bay. The ares bounded on the lorAn by a toe from (k*#ersal Trs ..stcatcr (LJTM) 4a900deiE , 5271000vr*l , west 10 458000mE. S2lI000mN. thence north etong a By 10 oooritoale 458000nE , 525800thtV4. thence seat to 483000nE. 5288000mN , thence north 10 463000n iE. 5292000mN, thence east to 481000mE, 6292000n*l. thence south 10 48I000n iE. 5268000mN. thence e to 48S000rnE. 5288000. thence aouth 10 the ba g *ieto 48X00mE, 5V100de N. The area bounded on the aouth by a toe Imni Uiiversst Tra.......t. . . (UTM) w &...t . 59 5000mW. 5157000 ,011, west to 881000mW, 5157000mN, thence north along a toe 10 681000mW. 5 172000ri*I , thence aotlti 10 the bei..ng coct* ate 694000mW. SlS7000mN. cItes of Otympsa.Tumaoter. wet Lecey Wailuf a. oIIansbes eves bounded on the north by ma Market SIre t Bridge , on the seat by West Wgms Route 62. on the south b the astenston of the southern bortidary of SterthenvUts tv..n.lr* ) U ’. Jefferson County. Olso. wet on Ills west by the Cree/ Wesi W9mn border. cttvcfSlier ldan. ‘When d c i Iewns wo Wiown. Ste ares of cc& ern u demad try ma mrt v01 boun y to dIe date 01 ma nutce. sectIon plwoang woe .hown, the area 01 . . the antre ptaiv*i9 ares mess the urea a IaVw daGied (sg.. by k .ili iwç id/or IV. Sigi iRnnnce of Today’s Action By November 15. 1991. States must adopt and submit to EPA a SIP for all those areas that were classified as moderate PM—la nonattalnment areas by operation of law upon enactment of the 1990 Clean Air Act Amendments (see Subpart 4 of Part D of Title I of the Clean Air Act as amended (section 189)1. All of the areas listed above muat submit a SIP meeting the general requirements for nonattainment areas identified in section 172 of the amended Act and the requirements specific to PM-loin Subpart 4 of Part D. In particular. section 189(a) of the amended Act requires that all of the Initial moderate PM—b nonattainment areas submit a SIP by November 15. 1991 which Includes the followlng 1. Either a demonstration (including air quality modeling) that the plan will provide for attainment by December 31, 1994 or a demonstration that attainment by that date Is Impracticable. 2. Provisions to assure that reasonably available control measures (including reasonably available control technology for the control of PM—b are implemented by December10. 1993. In addition. a new source permit program meeting the requirt “ents of Part D of the Act is required for the construction and operation of new and modified malor stationary sources of PM-b (including. in some cases. PM-la precursors). A SIP revision meeting this requirement Is due by June 30. 1992 for all of the initial moderate PM—b nonattainment areas. The EPA will provide additional guidance on SIP requirements for these areas In the near future. Also note that EPA must take final action by the end of 1991 with respect to which of these In itial PM-ia nonattaininent areas should be reclassified from moderate to serious because they cannot practicably attain the PM—b air quality standards by December 31. 1994 tsee section 188(b)(l) of the amended Act). If reclassified as serious, these areas will be subject to additional control requirements and a new attainment date. Since EPA must propose these reclassificatlone by June 30,1991, EPA wW work with the States before that date in order to develop a proposed list of moderate areas to be reclassified as serious. V. Authority Sections 107(d)(4). 110. 188(a), and 301 of the amended Clean Air Act provide authority for today’s action. Dated Maidi 7,1991. Prflthasl Shapk Ac1i gAssistenIAdmmnistzt7torforAJrOM Radiation. (FR Doc. 91-5987 FIled 3-14-01: &45 am) saism coca GENERAL SERVICES ADMINISTRATION 41 CFR Part 301-I andCh. 304 (FiR IntsdmRuls3l RIN 3090-AEIS Federal Travel Regidatlon Acceptance of Payment From a Nanfederel Source for Travel Expensss AGENCY: FederalSupply Service, GSA. ACTIOIC Interim rule; correction. SUMMARY: This action corrects an error in a document amending thePederal Travel Regulation which was published March 0. 1991 (56 FR 9878). In the State and Couritlee Penns _ Puerto Rico: Area of Concern The area ricfuding LIsrty. Laiooln. Port Vue. arid Glausport Borough and the City of Clarion. Municipally of Gusyiiabo That porlon of the Cay of Lrd tiar 4 endosed by Loop 289 hçhway. City of El Peso Wslttflgtcm K g 0 West Wgtea. ------- a Fodiral 4 IMer 1 L 58’ No. 153 / ‘thurgday: u uif . 19911 Ri 1e aflURé hliond request revision to any SIP. Each request for revision to the SIP.sbafl be considered separately In light of specific, fni r . r.L.tfna to levant statutory and regulatory lsqulremeuta. - Today, ‘Ma approving the SIP revision submittala of October17, 1985. January 29.1989. November?. 1989. October12, 1 . and October13. 1990, which Indude (1) The IIM plan with an anti-tampering regulatlon and (2) the carbon monoxide plan conirol sfrstemj — and attsbmnf demonstration. Under 5 U.S.C. e05(bJ I certify that this SIP revision will not have a significant economic Impact on a substantial number of small entities. (See 48 FR 8709) Under section 3W(b)(l) of the Act, pefftions for ludiclal review of this - action muSt be Med In the United States Court of Appeals for the appropriate circuit by October 7.iO9i. This action may not be challenged later In proceedings to enforce Its require ants (See section 387(bJ(2fl. . The Office of Management and Budget ha. exempted this rule frorathe requirements of sections of Ruecutiva Order 1?Z1. - The Agency has reviewed this request for revision of the federally approved SIP for conformance with the provisions of the 1990 Amendments acted on November15, 1990. The Agency has determined that this action conforms with those requirements Irrespective of the fact that the adoptionof the revision by the State preceded the date of enactment. List of Subjects 1n40 CFR Par(f Air pollution control. C bou - -monoxide. Hydrocarbons, Incorporation by reference, Intergovernmental relations, Reporting and recor eep1ng requirements. Auth .itiy 42 US.C . reoi-ieez. Nota IncorporatIon by reInence of the State Lmplententatioui Plan for the Stat. of Oklahoma was approved by the DIrector of the Federal Register on July 1. 1982. Dated: June21 1991. WdIIam IC. Roifly, Adminisocior. 40 CER part 52. Subpart U .. Is amended as followa- Subpart LL—Oldattoma 1. The Authority citation for part 52 -ontinucs to read as follows: Authunty 42 Li S C. 7401-7642. 2. SectIon 52.1929 Is amended by adding paragra Ih (cX4o) !o read as followi 152.1890 -“u- iliptsfl.” • • • • •:. ,i. ._ (40 )OnOd ober lZig8S,d&e Covernor of Oklahoma submitted aSIP revision designed to achieve the carbon mono,dde stanlad In Oklahoma County. Supplemental Information was submitted on January * 1988. November 7,1988 October13. 1990, and October19. 1990. The atitl4ampering regulation was submitted to EPA by the Governor on October 9.1985. 0) Incorporation by reference. (A) Oklahoma Official Motor V.i I4 Inspection Rules and Regulations Manual adopted December 5,1085, and effective January 1.1985. (0)470.5. 513W Section 855.1 et seq. adopted May 24.1954. and effective May 24.1984. . - . (C) OP. Oklahnma Attorney Con.rnt number 84-174 (December 12.1984). ( I)) October17, 1985, plan reporting commitments for Oklahoma Coeaty Reasonable Further Progress v 1 ’ dule , page5. - (E)TheQtyofOk!ahi ” iUty Ordinance No.12,575, as passed by the Council of the Oty of Oklahoma Qt an March 31.1970, and approved by the Mayor on March 31,1970 (II) Additional materiaL (A) A February 7,1991. commItment letter stating that the DPS will anima lly conduct unannounced visits t 10 percent of the OfrI.hona County Inspection stations. (8) An October13. 1990, letter committing to report sainfennuallyto EPA. information relating to effectiveness and enfo n m.iit of the 1/ M program. (FR Dcc. gi-isme FUed 54-It &45 sm I coca to the national ambient air quality standards (NAAQS) for P14-10 occurring by operation of law upon enac” ” of the 1900 Amendments to the ( 5 .an Air Act tAct (th. rImtteI PM W pnln M i zeas’ 9 ,.- .• SaeI 1 n 1W(dXZ) ( ae IcIi .eci1on 107 (dX4) designations) and 1I aJ of the Act specify that EPA mUst uiake these annoácements. he thtI MeEchiOSi- notice. EPA explMna.d the operative legal prov sions v uLig the - designation and classfflóetian of thàe Initial areas (see e.g.. sections 1W(dX4liB) (I), (If). (lii ), and 198(a) of the Act). - The EPA else provided an ciportimity for the public to comment on EPA’s announcement. As noted, this did not stem from any legal obligation. Rath&, as a matter of policy, EPA reqnated public comment on the annsai w imnr In order to facilitate public pailidpatlon . and avoid imii ’nithng errors. In today’s. action, EPA has responded to pertinent comm ’ts addressing the March1901 Federal Register-notice. Where EPA believed appropriate sad where there, waaalegalbaelstodoon.EPAhu. made adjustments to the initial PM—jo nonattah mniirareu In light of the comments. Finally, note that for - informational purposes, EPA has -. restated some of the background dlicuulon provided In the March1991 notice.. - -. a cTuve baru Par those areas that have r.macn d unchanged. the effective dateofthearm .. . .--...entofthe designation and nisoniffnition of the - areas Is May14. 1991. as Indicated in the March 15, 1991 Federal Register notice (58 FR 11101). -For those areas where EPA has adjusted or corrected the boundaries, - the effective date of the annonnimv .nt of the Inaignation and danaifliation of such areas ii August 8.1891. (see — below). onPPi.anoivs*v U OfiMATtOtt The air quality monitoring data supporting the nonattainment designation of the former GrOUP II and Ill areas monitoring violations of the PM-b NAAQS prior to January 1.1989 are available from the respective EPA Regional Office which serves the State where the affected area 40 cFNPad 81 Designations and Classfficmions for.: Initial PM-b N .tL.iainect Areas- - AGENC1 F.nvlroi mental Protection - Agency (EPA). ACTIO1 Notice correcting EPA.. - announcement of the designations and classifications for the InitIal P14-10 - (particulate matter nomInally 10 wla’oas: or smaller in diameter) nonattatrunent. areas. - son Plfl R F0 AT10N CONTACT Larry a Wallace. Particulate Matter ‘ Programs Section. AIr Quality Management Division (MD-is), Offic, of Air Quality Planning end Standards, U.S Ruvironmental Protection A u ..y, Research Thangle Park. NC vni .. Mr. Wallace’s phone number Is (919) 541- 9998 or FFS 629-0905. suv M*sm On March 15.1991(56 FR 11101). EPA announced the designations and dasaifications of areas with respect ------- Federal Register j VoL 58. No. 153 I Thwday, g t 8. io i I Rules and Regulations . 37€55. Is located. The addressee of the Regional Offices are as follows • State Air Programs Branch. EPA Region 1. J.FJ(. Federal Building. Boston 1 MA 02 4211. • Alt Programs Branch. EPA Region IL 26 Federal Plaza. New York. NY 10278. • Air Programs Branch. EPA Raglou III. 641 Chestnut Building. Philadelphia. PA 19107. • Air Programs Branch, EPA Region IV. 345 Courtland Street. NE., Atlanta. CA 30265. • Air and Radiation Branch. EPA Iteglon V. 230 South Dearborn Street Chicago. IL 00608. • Air Programs Branch. EPA Region VI. • 1445 Ross Avenue, Dallas, TX 75282 2733. • Air Braflch. EPA Region VII. 726 Minnesota Avenue Kansas City, 1(9 90101. • Air Programs Branch. EPA Region VIII. 999 18th Street. Denver Place— suite 500. Denver. CO 99202—2405. - • Air Programs Branch. EPA Region IX. 75 Hawthorne Street. San Francisco. • CA94105. • Air Programs Branch. EPA Region X. - tWO Sixth Avenue, Seattle, WA 90101.. L wul A. 1987 RevisIon of the NAAQSIor Particulate Matter • On uIy 1,1W EPA revised the NAAQS for particulate matter, replacing total suspended particulates (TSP) as -. the Indicator for particulate matter with a new I1 11lI ntor that included only those partides with an aerodynamic diameter less than or equal to a nominal 10 mieromelere (cailed “PM—b”) (see 52 FR 248341. At the same time EPA set forth regulations for Implementing the revised particulate matter standards and announced EPA e State ImpLementation plan (SIP) development policy elaborating PM—iD control strategies. necessary to assure att*Ininant.and maintenance of the PM-iD NAAQS (see generally 52 FR 24872). TheEPA adopted a PM—to SIP development policy dividing all areas of the country Into three categories based on their. robabUlty of violating the new. NAAQ& 1. Areas with a strong like lihood of • violating ihe PM-to NAAQS and requiring substantial SIP adjustment were placed In Croup L 2. Areas where attainment of the PM— 10 NAAQS was possible and existing SWs needed less adjustment were placed In Group U. 3. Areas with a strong likelihood of • attaining PM-to NAAQS and therefore needing adjustment only to their preconstruction review program and monitoring network were placed In Group ill (see 52 PR 20572.24879-24882). A Prior IJ.thrg of the Modification to PM-iC GioupilL and Ill Areas In a000rlalIr, with the standards, policies, and regulations published on July 1. 1 7 for revising and Implementing the new particulate mallet standaid, EPA hianlified and listed the Group land Group U areas In each State In a notice published on August7. 1907 (see 52 FR 29389).The 1987 iroücialso indicated that any area of th&country not listed uGroup lor l l was placed In - Crbupll l(see52FR29983). • The EPA sub.equez tly modified the Identification for three areas and -‘ announced these revisions In a notice published on March 28 1989 (see 54 FR 12620). SpecIfically, the 1909 notice 1nii; ted that Porter County. In II*ftn , Mono Basin. California. was changed fromcroupfl ltocioupThand Saadpoint. Idaho. was changed from CroupitoGroupiL On October 31,1990 EPA publM d technical corrections modifying the Identification of the locations of concern for slime of the areas previously Identified as .Croup I and II areas (see 55 FR 45799). When EPA listed the Initial groupings for areas In the August 1W notice, the Group I and U areas of - concern were generally desaibed as cities, towns, counties, or plam lng • areas. The EPA ln.Ikwted at that time that these desalpilons were only the initial definitions of the areas to be Investigated In the SIP development process and would be better defined. later. The modifications to the Identification of the Group I and II areas announced n the October1990 notice specifically defined and delineated the boundaries of the Group I and Group II areas In question based on Information obtained In the SIP development process and EPA guideline. and procedures for determining particulate matter boundaries. Generally, prior to modifying the Identification of boundaries In the October1990 notice. EPA amsulted with the afl.cted State.. reviewed technical Information, and • was guided by applicable EPA policy. Weighing these various factors. EPA set the boundaries It believed appropriate. IL Today’. Action On March 15. 1991 (58 FR 11101). EPA announced the designations and classifications occurring for PM—to by operation of law upon enactment of the Act (the “initial PM—to nonattainment Sections 107(d)(ZKA) (referencing section 107(dX4) designations) and 198(a) of the Act specify that EPA must maki there announcements. In the Mirth 1 i notice. EPA bxplalned the operative . legal ons governing the - designation and classification of these Initial areas (see. e.g.. section. 107(dff4)(BXI). (II ). (W). and 180(a) of the Act). The EPA also provided an opportunity for the publicto amiwent on EPA’. announcement As noted, this did act stem from any legal obiigation.’. Rather,isamatterofpoUcy. A. ‘.•; requasted.public ‘eot on the. annouli merit In order tolacllltate ;.. public participation and avoid ‘ - commlfflng error.. In todays action.. EPA has rssponded to pertinent’ commenls addressing the March 15,1991 notice. 5 The EPA has made adjustments erder either the Adiulsl .trslive P l. i Ad (AM) (3 U3C mi .W) or. eJw (dJ of the Ad (so. getidsily ar FR 1110$. aec&a IY(dX3 ) Oldie Aut . ,. . di. to pubtiub.odc. —— edgealler. peruosetto seeder 1 dKlI but . n HthIy PTOOIdSS that es Is cot subject to APA .eUc.4ii4ciwnert i’ ’ 5 errnØ buso the imdoe.sn cansomt procedsuil - ,eqefresoeata c i the APP. the em..------..cot a t dicer geu lgpted mcoctt.lu.em 1w P 5 4- i D by operidoo of law coder seeder iW(djf4XBp. Siead Uoco. aedica 1 s3 oldie Ad Ff4-iS d stpatloa . sad 4a llL iL __ tfl A codifier the delipiadco. sad — “- -dec. of area’ enen Ito . ....h wtth . r to the - I4AAQS for Other p ” ’ Na ‘ ‘ dcc ourerceodes wtthl. ent few maa ____ ___ - ‘ iL _ oldie 510.1 PI6-1O -°-’ .-— -’ arose . 15 — dieAgeccy. Roil setter us thai. dealgnatlu .tthII Ito .easlrrduid les IWlbJ of th .Aua C leo rtbI ‘1. the htoub is. lest codçe ma acted (eelS. riltoated I . today. colic .) that either Ow. amoagermetof di. Initial dasigeglier. .eith. InitIal da 1w PM-iS a jectb the bncdcs ’ .ad’c w-’—- teas. the AdmlnleUstor to publiubaaodce seriowedeg the .l rduerof these areas.. Sidle. 118 (i) eqlllidyctates Owl di. provlsloaa of edton 17 a )(1)(B) petatateg to lack .f cotter sad connect eel jidlelat tc,lew slisU appLy eS. the then Sectioc 1r$.I(iØ ) 5 two. e. , ,..asLy exempt. the I... . rtlOa aro. . . --- ’ frees Ike solico.coO ,— ‘d psuerdures sst forth Ins USC. iss-sor. • ‘The A received many pir1l...al camureots Ia direct . -q e to d i. coda.. ilowofer. ‘A has stlealpted also to re.pmd to ..Il. ....I VOO w%t . received b e n effected State. , .Ji . . .tlt,A 5 to .notber Agency acdou. £ Jan uary cod Pebnary of 1801. A Ragtanal AdmirIetistore provIded letter, to the Netioc. Covenic.. ptalaing see of the .pedllc Stat. echo .. that were to be compittad In c.der to leftists lmplemeat.tter of 1 1th I of the Act a’ eceelly aineaded by the 1880 AincednOnt. (“RA Letten’3 Regardlog P54-ia lot example. O’A reformed the Governors of three ares. designated nonsttenment for PM-ID by cpevodon of law upon enactment of the Act end e’qiteined some of the SW requureatenha applicable to such sea, under the Coc t hm ed ------- 37656 Federal Register I VoL 56. No. 153 / Thursday, August 6. 1991 / Rules and Regulations to the initial PM-la nonattahe . nt in light of the comments, where EPA believed appropriate and where there was a legal basis to do so. A. Legal Fzvimewui* Section 107(dX4)(BXI) of the Act clearly specifies those former Group I areas that were designated nonattainment at enactment That provision states that each former Group I area Identified hr 52 FR 20303 (August 7, 1987) or modified before enactment of the Act (November 15, 1990) is designated ncna t falnment for PM-la As discussed previousLy, the Federal Register notion published on October 31. 1990(55 FR 45799) clarIfied or “modified” EPA’s Identification of the Group I areas bated in the August1987 notice. 4 Thus, as explicitly provided by the statute, the Group I areas listed In the October1990 notice became uonattalnment for PM—IC by operation of law upon enactment of the Act on November 15 1990. The EPA. then, announced that these areas were among the initial PM-IC nonattahiment areas in Its March 15,1991 Federal Register notice. Because the Act explicitly provided that the former Group I areas identified In the October1990 notice became nonatfndmi ent for PM-40 by operation of law at enactment. EPA believes the law generally prohibits any modification of these areas at this Juncture. The one excqptiou is where. before enactment, EPA cniirinlfted error hr Identifying and/or modifying a Group larea as referenced In section 107(d)(4)(B)(i) of the Act. There are a few circums’ ”ee where there La evidence that EPA intended that the boundasy for a Group I area identified and/or modified in Its October 31. 1990 Federal Register notice (and reiterated in the Murch 1991 announcement of Initial PM-ID nonattaizunent areas) be different and through administrative oversight or other error failed to so provide’ In one revised law. ey s l.tters A thu W st.d the process ofr ’ 1— ige .t i sg additional exsu.s oonst’—’— .——” far PM—SO pwIuant is .sedon 107(dJ(3) alibi . Swit m 1W dU33 exltinil, provides an uypcrtuthy for State pwtldpotlou In desIgitatIng sddlticnal 994—10 uonattânonnt ala ,,. Section IWIdJ(4)(B). the provision .ddiesslng deslg a6ou of the Initial PM-SQ nona ” - ’ . ’-— aJeas (I.e.. thou ocon4JI by operation of law gpo. enactment). does ent -t__.plata s a process. Neverthete,,, iowa ... end Slat. gwicy omcaIs ,ubmftied comnwets on the Initial areas In responding to ‘A ’s eug eeted additional nonaiteinmant areas. The EPA has responded to any such pertinent comments In this notice. • Pre.enscti.snl wadlficatlons (a the August 1987 intica WCIO also made In (be Federal ‘ a lu’ . notice published onMa:ch m i m. discared prevloualy. • T?ua mar was brogg t( to EPA. attention In mmmntla ashmitted In response to EPA. Mardi 15 Instance, for example, EPA mislabeled a highway number. EPA has made adjustments to the boundaries In such circumstances. Faced with the choice of designating erroneous noaattalllment areas or interpreting section 107(d)(4J(B)(l) such that It includes the areas identified before enactment In the October31, 1290 notice but corrected for error, EPA believes the latter approach the most reasonable’ Moreover, EPA believes that In providing that the areas Identified and/or modified in the October31. 1990 notice would be nonattainment areas by operation of law upon enactment of the 1990 Amendments, Congress and the President could not have Intended to ratify dysfunctional or evidently erroneous boundaries not grounded In fact Note that these circumstances are in contrast to the situation where commenters requested modification of. former Group I area because they believe, ass technical or policy matter that all orpart of the area should notbe designated nonaftahement EPA has not adjusted former Group I areas whore there Is a Judgurent dispute about the proper scope of the area or its very designation u nonatwe ’ The prior categorization as a Group II or UI area bear, differently on en area’s nonattainment status, In comparison with the Acts’ treatment of former Group I areas. Spedflcafly, section 107(d)(4)(B)(U) of the Act states that “any area containing a site for which air quality monitoring data show a violation of the national ambient aft quality standards for PM—ID before January 1. 1989 (as determined under part 50, appendix I C. of tItle 40 of the Code of Federal Regulations) Is hereby designated nonattaltiment for PM—b.” 1995 aw--.. ItMU1 or In EPA’ . review of Us reestds In preparIng sesponses to csan ‘I i,thw. section 11o(k)(eI expressly autbark. ... the AdmInistrator to revise deslgeatlons. clauillc.dons . ste. whet, the Adndaieiseior datweinea that mtub 1C ’.tlose. 4 ’ tions. et were In esiw. In cases where there eie dispute. i dlng the proper scope of the desigestlen. 1 1 . 8 1st. later wakes apereuuks demoeanalmes (SW equivalent) thus EPA. lionel “ ‘en. is IdentifyIng a former Creep I area were In enor. the Agency will consider whethe, It would be . ., 1 . . ,, , .Iate is correct the em rel$itg en the . wL ,k , is — uc(kKeJ of the Act. • Since EPA n. ,,, .4 all stie, of the w ,.Jiy saL U. cr 111 whet ft revised the PM-ID PLAAQS (see previous dlsazulooj end bucsu.s all freer Group I ares. were designated nenettaIn t b operudin of law under section 107(d 114115K 1). the ldSlao.U 10 soy area It, section 107(d)(4)(BIØI) di facto applies to all areas formerly . n..yed asU • I II. That allfortnerCrouplareuwaiildb 5 designu ted nonettaloment by opereU0i of law upon enectzuent or the Act. while farmer Group U/Ill areas would have to o’.euvis U violation poor ‘0 gfluatY i. ion to be sodulpatad. is grounded is The language of section 1W(d)(4XB)(li) suggests that EPA has mozediscretlonin determialngwbldr of the formerCruurp II and UI areas were Ignated., nonapalmf e’t by operation of isof upon enactment of the Act. For rg 11 J EPA must exercise some judgment In construing what Is a violation within the meaning of 4G R past RL appendix IC, to the , xten t these regulations leave discretion. Further. section 1O7(d)(4) (BXII) doe. not define the boundaries of “any area” measuring a pre-1989 violation. The Act does, however. set forth a revised definition of nonattahittn.nt.area for purposes of section 107(d) dealguetions generally. Specifically. section 107(d](1)(A)(I) of the Act defines a nonattainment area as “any area that does not meet (or that contributes to ambient air quality Ins nearby ares that doe, not meet) the national primary or secondary ambient air quality sfan .4ard for the pollutant” Thus, coincident with providing that ertaIn former Group U and UI areas wore designated nonatt’I” t by operation of Law at enactment. the Act provided a standard to govern the scope of what that area should be. This definition suggests that EPA must apply Its expertise and knowledge to Isolate as noriattainmunt any area It believes violates the standard or any area that significantly contributes to such violation in a nearby area.e Further DO 5tea1nmsnt area definition is being applIed to these ai ’eas for the first time since under EPA’. pie. enactment grouping scheme they were not designated nonatf .itannt. The EPA therefore believes that. consistent with this new standard, it has some discretion to apply its frthnlraL expertise and appropriately adjust the boundarie, of the former Group U or UI areas for purposes of determining which earns Ioglc reson. A, noted above. when EPA ple’d a,easdthe uy Into Croupa LII. or Iii , Creep I mess wee e5 withs sOsop - -—-t of violadop the PM-1De’ ’d. ‘lathe ten’ ’ where the Agency has the b edes c Ia foisterCeoup liar UI ares becanea ft contributes toe violation tea nearby eles. the A baa omatraad the definition of nsnaUal aent ale. to reqUIte some meterlal or .igtidicautwetrlb idnn I D side ‘balm. The Agency believes that scciethlng greater that, a t,g k .m ,Ia , Impact Is required. Finthe WA has adjusted the bouade,ic, of former Cenup j and fl are.. designated nonattalnmaut In reliance on Its geteral te ical expertise and lisa not conducted, for example. lfoi.. ,n.5 modeling analysis. umefreme. ut forth ut the ula’gte do not contemplate such detailed analysts. For example. the law mandates that all of the area, desIgnated nonaltutitetent by operation of law upon enactm,nt of the Act must iubm,t SIP fl .’,IIon, by November 1S.IQO1. Such tight deadline. do not afford 0mg for moore .upluste.trd tecitr..caj aiialyets. ------- Federal Register I Vol. 56 No. 153 I Thcrsday..August 8, 1991 / Rules and Regulations Vb57 areas were actuaUy designated nonattainment by operation of law.’° Where appupriate, EPA has exercise both types of diseretlon In responding to comments addressing former Group 11 and III areas that were announced as Initial t’M-le nonattaimnent areas In the Mardi 1891 notice. Specifically. EPA has considered whether a violation within the meaning of part 50. appendix K. occurred and EPA has adjusted nonattalanient area boundaries for those areas based on the standard set forth An section 1O7(d)(1)(A)(l).” & Responses Conmievts 1. ormerG,o I Areas a. Hcydesf Mimi Planning Area. Aràoaa.Carnm”is were submitted on behalfafASARCO. Inuu . posted (ASARCOI. addressing EPA ’s designation .f the Hayden/Miami PlannnigAzaalnAilzonaas aninitial PM—lOnwtattalament area. ASARCO .dcnewledged that as a former Group I area ‘the ‘HaydenlMiami’ Group I area Identified in the notice published at 52 FR 29083 en August 7. 1987. must be designated a nonattalament area However. ASARCO stated that the March1990 notice “expands the bounllarles of the Hayden/Miami nonattainment area far beyond the Limits of the planning area used by the state when developing its PM—to SIP for Hayden.” ASARCO commented that these boimdarAes are unsupported by ambient monitoring data, information the State of Arizona discovered in its SIP development for the Group I area. EPA guidance ducaments, and the language of the amended law. Consequently. ASAR ) requested that the boundaries of the area be substantially revised . ASARC() has misinterpreted the legal weight of the October 1990 notIce. In Its August1987 notice, EPA only generally referenced the ayden hfiaml area.” In the October1990 notice. EPA modified and clarified this. enumerating In detaiL portions of the Hayden! Miand p) ”iiItig area deemed Group LThese modifications, In turn, were adopted by operation of law upon enactment of the Act (see section 107(dX4)LD)(Q). - ASARCO argues that EPA can disregard the boundaries In the October 1990 notIce ben se It “did not ‘modif(yj ’ the ‘identification’ of PM-ID nonattainment azeu rather, that notice defined the boundaries of nonai 1 ” ' ’t areas that bad already been Identified In previous notices.” This extreme reading of section 107(d)(4)(BJ(i) has no basis In reason. An area Is identified by Its boundaries. Thus, when EPA modified the boundazyof a Group larea in Its October 1990 notice. It was modifying the identification of the area as section 107(d)(4KBI(lJ expressly contemplates. ASARCO also argues that the October 1890 notice Is not within the Intended - ambit of section 107(d)(4)(Bj(i) because the operative language appeared In the legislative history bdore the publication of the October notice. This argument ignores the express and plain meaning of the text of section 1W(dJ(4)(B1(I). That provision states that any modification of the August 1987 notIce “before the date of enactment of the Act” Is effective. It clearly does not state, for example. that only modifications occurring before Legislation or legislative history was introduced are effective. as the commenter apparently believes ft should be read. The EPA has no basis to disregard the boundaries for this former Group I area as modified In the October 1990 notice and adopted by operation of law. ASARCO argues, for example, that EPA should adjust the boundaries because they are inconsistent with the Group I SIP develop for that area, monitoring data. and EPA guidance documents. That the Stale of Arizona was developing a SIP focusing on ccrtain portions of this former Group I area does not compel EPA either to agree with the SIP’. scope or to adjust the area boundaries to comport with that scope. In fact. EPA has taken no action on the former Group I SIP for this area. Generally, prior to modifying the boundaries in the October 1990 notice, EPA consulted with the affected Stateq. reviewed technical lnfarmation, and was guided by applicable EPA policy. Weighing These various factors, EPA set the boundaries It believed appropriate, and an November 15, 2990 these boundaries were adopted as the nonattainment boundaries for the former Group I area In question. lite Governor of Arizona also submitted enwonents addressing the Hayden/Miami PM-b nouattahim ”” area. The Governor oneiu.ented that the State has subwiUed a SIP demonstrating attahemani In the Hayden area. He also commented that sInce 1988 monItoring In the vicinity of industrial sources at Miami has not revealed any violations of the PM-to standards. The Governor stated that tim State of Arizona “will be submitting aSIP revision to desIgnate only the ama within TSS, RiSE as nonattnInmast ” However, In an attachment to the Goimnor’. letter, be provided a more detailed and apparently inconsistent desaiption of portions of Hayden that the Governor believed should be designated uonattaL. .4 . As Indicated in response to ASARCO’, comments, there Is no evidence that EPA Intended to provide boundaries for the Hayden/Miami area that are different from those Identified In the October 1990 notIce and announced In EPA ’s March 1991 notice In reliance on the October notice. Essentially, there Is no evidence of EPA error. Moreover, as explained lathe response to ASARCO’s comments. EPA is in no way obligated to set nonattainineat boundaries for former Group I areas according to the scope of the State’s implementation plan for the former Group I area. In fact, EPA has taken no action on the former Group I SIP for this area. In sum, the boundaries for this Initial PM—to nonattainment area will remain as set forth in the March 15.1991 Federal Register notice. b. Newlioven, ConnecticuL The Governor of Connecticut and the State of Connecticut Department of Environmental Protection (CDEP) submitted comments requesting that the boundaries for the New Haven nonattainment area be modified to include only that portion of the city east of the Quinnipiac River. The COEP noted that CDEP staff had sought to have the boundary revised in the October 31. 1990 notioe but that EPA had informed them that “a municipality was the smallest geographic area that could be designated.” The CDEP also commented that CDEP staff were told by EPA that the State would have another opportunity to refine the boundaries. “Former CIO.Ip ii ieee. lot example. present an cetreew ma ,. urly cceipelling EPA to exercise discretion in tile way. The August rewind October 1990 Fedseelle lsterno1loea elated that any area of • Stateontllet.dai Civop lorD Is inneldered to be Civupfll (see 52 FR mae and 55 FR 45799). Where A det . ,. , .1nJ that ,uth an ate. mesiwed a vlsletioodthe 1 54-10 standard pitarto Iena117 1. 1999. ii would be lerstional for the Agency to designate as sonattalnorent entire portions of State. far iemovedlrom end not significantly contributing i.the aiva eioaiIsehr the elolatlcn. Rallier. EPA muet ew e.cme4- i g —.i “Incanimet, asleas EPA has cometitled an arrer. the aiatute e vesesest of looser Group I •reas does not cesteotplate sudi adjustment. A. ment&thsgesi4,looof the Act addressing the nonsttalament deslgnutloa ot mimer Group * areas Is quite apecific. Section &OItdl(IJ IRI(Q calls lot the nixtatlainahedl designation of eech area Identified In52 FR 290 53’ ea aiibaequcotlv modified before the date ideo.ctment of the Act. Thor, the law •pec’f.cs each.m’ that mu ____ nonsttstnment. The EPA cannot rely on Ike Ada defirniton olnonettnfnment to adlust these area. The EPA bellevia au , adjustment would contrsecneáe eneraI canon of etelutory ainstracion that when Inlerpreling the Act. si’eczf prai store aiot,nt those thst au one generaL In thin ,. EPA beheses that Con r,,. ha. specified looser Group I fleas will be 0000ttaunaent D’Acsnnoi rely on the genertil dcfinitlon of ouretlainmoat eta to .d 1 usi bc bounditrics of area ------- ‘ 7g53 Federal itegistèr I Vol. é, Nd. 153/ Thur ddy, August 8 99 / ’R iles and Reglilatiôñs The EPA regrets any mlscommunlcation between Connecticut and EPA that may have occurred when discussing the modification of Group I areas for the October1990 notice. However Connecticut has not submitted any documentation Indicating that EPA committed an error In designating the City of New Haven as an Initial PM-b nonattainment area. In røfl nc , on the October1990 notice. Thai, Is no evidence that EPA Intended that the boundaries for this aiva be different from those set forth In the Marchnotice and through ailmlnhisbative oversight or other error failed to so provide. Thus. the City of New Haven Is a PM-b nonattalonient area. u described In the March 1991 notice.- c Pinehurst Idaho. The Mmln1 trator of the Idaho Division of Environmental Quality (IDEQ), on behalf of the Governor, requested that EPA significantly adjust the City of Pinehurst nonattainment area. Believing the nonattalnment problem In this area to be a valley afrshed problem, IDEQ requested that EPA expand the boundaries to Include additional townships along Sliver Valley. There Is no documented evidence that EPA committed an error when It modified the boundary for this area in its October1990 notice or as reiterated In its March1991 notice announdng the Initial PM—1O nonattalnment designations. Thus, there Is no basi. to alter the boundaries Identified as the “City of Pinehurst” and set forth In the March 1991 notIce. Nevertheless, to the extent that the boundaries described In the State’s correspondence aie broader than those initially designated nonattainment, EPA is considering whether the State’s submittal should be treated as an unsolicited redesignation request within the meaning of section 107(d)(3)(D) of the Act Under that provision EPA must “approve or deny” a revised designation “Ewlithln 18 months of receipt of a complete State redesignatlon submIttal • I If EPA finds that the submittal is complete and approves the submittal, then the City of Pinehurst and any revised nonatta 1 ” t area surrounding it in the Silver Valley will be subject to somewhat different statutory deadlines for SIP submittal, attainment demonstration. etc. Compare, e.g.. section 189(a)(2)(A) (first SIP for initial nonottainment area due 1 year from enactment) and section 189(a)(2)(8) (first SIP f’r later redesignated nonattainnient area due 18 months from the non .i comment designation). However. EPA notes that nothing in the Act prohibits the State from submitting a SiP for the entire area they have Identified £ Counts Illinois. The EPA - by November15, 1991,. the SIP submittal, - rec Jv o formal comments about the deadline applicable to the portlop of the, portion of Cook County, illinoIs, area Initially designated nonattainment. de.ign ted nonattalnmnt for PM-b. -. and announced In the March 15,1991 .. - HoIvev jn reviewing recoi s -.. - , notice. . - .subsequenttothepubl lcalionofthe - d ThantetIA Idaho Th. Mmlnlitrator March1991 notice, EPA realised that a of the IDEQ submitted Information to highway number In the description of.: EPA Indicating what portion of the this bed b Inadvertently Pocatello area in Barmock and Power mi ,eJ i ‘figs announcement corrects counties should be designated - that error là accordance with the legal nonattainment In the October1990 and described above. - March1991 notices, this area was listed , MOJJS The Maine - as “City of Pocatello.” Both of those notices Identified Bannock andPower as Depar nent of Environmental Protection the affected counties. er reviewing - . . M)EPJ and the City of Presque Isle IDEQ’s submittal, EPA realised that the subn omnments addressing EPA’. “City of Pocatello” site only In Bannock de . gnation of the City of Piesque Isle as County. Thus, there Ii a disconnect or-- n Initial PM-I l ) nonattainnient area.- gap between EPA’s listing of the “City of• The ty of Presque (ale óomznented that Pocatello” as the nonattainment area for PIeSqUS I le was incorrectly placed in both Bannock and Power Counties. - Group I In August 1987. the notice first - As evidenced by Its listing of both aiinoiindng grouping. after EPA revised counties. EPA Intended to Include that the NAAQS for PM-loin July1987. port lonofthePocate l loarealnboth Thus.thedtyreqUest 5dthatltbe Bannock and Power Counties In the removid from nonattainment status. The October 1990 notice. The EPA now MDEP also objected to the designation realizes thatlistlngwaslnexror.ThIs ofthecltyasnonattalnmentand. - error, then, was adopted Inadvertently alternatively. drgued that the boundaries In EPA’s March 1991 notice announcing of the nonattainment area should be the initial nonattainnient areas for PM- reduced to Include a ½ mIle radius In 10. The EPA corrects this error In - the city’s urban center. The MDEP today’s notice as explained In the “legal submitted a number of supporting Framework” discussion above. The EPA documents. has clarified the boundary for this area The designation of Piesque Isle as consistent with IDEQ’s request and nonattainment and the scope of Its EPA’s original Intent boundaries appears to be a judgment The Shoshona-Bannock Tribes also dispute. In Us October 1990 notice. EPA submitted Information addressing the modified the boundaries for this Group I boundary for the Pocatello - -- p u It believed appropriate. This nonattsin’n.”t area. The Tribes area and attendant boundaries then Indicated that they agreed with the mp nonattalnment for PM-b by darificatlon and expansion of operation of law upon enactasent of the Pocatello nonattainment area as Act me EPA regrets any Indicated in IDEQ’s submittaL They also f m cetion between requested that EPA Include an additional section whIch they said would Include a seasonally operated “open pit silica mine with a rock crushing operatibn and attendant storage piles • •. “ The EPA has corrected the error It committed with respect to Pocatello as described previously. However. EPA - does not believe that the additional section Identified by the Tribes was among those Intended to be Included with the Initial Pocateilo nonattainment - area. Thus, at this time. EPA will not adjust the boundaries for this area to include this section. Nevertheless, If - after further study EPA concludes that there Is evidence that this area violates the PM—b standards or significantly contributes to such a violation in S nearby area, then EPA would initiate the process to redesignate this alea non attainment pursuant to section l07 d)(3)(A) of the Act. ______ PDA and MOEP which may have occurred during the development of the October notice. Nevertheless. this Is not a sItuation where EPA Intended that the boundaries In theOctober 1990 notice be different slid, through an error, failed to so provide. Thus, as announced in EPA’s March1991 notice, the boundaries of the Prësque Isle PM—b nonattainment area will consist of the entire city (see section 1o7(d)(4)(B)(ifl. - g libby. Montana. The State of Montana submitted information to EPA In conjunction with EPA’s development of the October 1990 notIce. The EPA reviewed this Information and intended to modify the boundaries for this area in accordance with the State’s submittal. Through administrative oversiglt. this modification was not reflected in the October 1990 notice and. consequently was not announced in the March 1991 notice. The EPA has corrected that errnr ------- 5 ,Noi i / 4 gj 4991 / ole4J eguWi s s3Th 59 in toda a notice In accordance with the legal rationale desaibed above . h. MàsoulaQiuntjc Montana. The Governor of k inf submitted co ments to EPA Indfr .J4qg thatU’A co’n’ tted naztor lnmodlMng the Group 1 area of for t ds un’ In A1 October ao notioe Through administrative oversight EPA Inadvertently o utf daecUons of this. area that records lndb ate It Intended to include. This error then was reiterated in EPA ’s Mardi 1991 notice announcing the initlal It*inmpqt areas. The EPA has corrected its error ‘In socordance- with the legal ra1iei le explained above. I. Butte. Montana. As was the case with Libby. the State of Montana submitted Information to EPA In conJunctlo’ with EPA ’s development of the October1990 notice and, after deciding to include It in the notice. EPA inadvertently omitted the Information. As with Ubbj,. This ervor was reiterated in the Mardi 1991 notice announcing the Initial PM-lb nonuttaimnent areas. The’ baa remedied Its admhdstrallva oversight and corrected the boundaries as origiuaUy Intended in accordance with the legal rationale described above. In d Februsiy 27.1991 letter to EPA. the Governor of Montana .ubwltted additional nf .H tIon addressing Ubby’s PM—Ia boundaries. The Goveniorindicated That Montana had completed technical analyses since the publication of the October1990 notice and submitted detailed boundaries. The Governor Indicated that the suggested boundaries would expand the Butte nonattalnrnent area. es listed in the October1990 notice;far beyond the city limits. Upon comparing the nonattainment boundary submitted by the Governor and the corrected boundary In todays notice. EPA has determined that the boundaries are similar; however, The Governoi’s suggested boundary for the area Is slightly broader. There Is no evidence that EPA Intended to Include the additional urea Identified In the Governor’s Letter when EPA modified Group I areas In the October1990 notice (or announced the initial PM—lb nonattainment areas in the Mardi 1991 notice. In reliance on the October 1990 notice) and through administrative error failed to so provide. Thus. EPA will not adjust the boundary for this area to include the additional area identified in the Governor’s letter. However, to the extent that the boundary described In the Governors .wi c i ,undence is broader than that listed in today’s notice. EPA will treat the Governor’s submittal as an unsolicited request for redesigna (ion with the meanarqg at er r4Int , 107(dX3XD) of the Act. Under th ovision. EPA must approve ord.asevlsed desipallon wUbIa months of receipt ___ .- ‘ If EPAflad. that the ub” 1 ” is complete andap 0 aoves the submittol. then the dd alareas 5h!1ff 1d by the Governé for the Butte noOat L m. t area will be subject (a somewhat different statutory dev fotflWsribmlttal. attainment demonstratIons. atc. Cosipare . e.g.. section 189(a)(211A) (first SIP for Initial nonattalninent area duel year from enac1m ”t ) and sec* 10 (a) (ZXB) (first SIP for later redesignated aerrattabunent reasue18ii o ith.fromthe nonat’ In 4 is4uitjo4 However, EPA notes that nothing In the prohibits the State from n}ito1r g a SIP or the entire area they have Identified by November 15.1891. the SIP ‘ihmtlii .l deadline applicable to the portion of the area Initially designated anatt 1nrmant and announced In todays notice. j. Anthony. New Mexico DonaAna Count$ The State of NewMe dco Environment Department (NMSI)J submitted comm ts addressing the nonattaininent designation of the Anthony. New Mexico 1 ares. The NMSI) stated that Anthony Is araral fugitive dust area (RFDA) and under EPA ’s “Rural Fugitive Dust Policy” (RFDPJ, I 1FDA sites shall not be designated nonatlainment.” Farthur M.IW stated that EPAr, RFDP ru naIn In effect because’EPA Indicated “in the Ostuber zo. 1990 Federal Register. the nidstlrrg RFDA policy shall i ln In effect until it is revised by EPA.” Finally. NM ) requested that former RFDA”s now deatgnaled nonattninmsa t have most of their requirements waived If EPA discontinues the RPOP. Two 1977 EPA memoranda constitute what has been called EPA’S “Rural Fugitive Dust Policy.’ These memoranda set forth treatment of areas Identified as “Rural Fugitive Dust Areas” for the proposes of attalnmen*/nonatta lameut slatrrsas well as SIP development and new source review under the Act before the 1990 Amandeierits (see. e.g.. 52 FR 24710 (July 1. 1987) (historical discussion)). This policy was Issued when TSP was the indicator for particulate matter. When EPA revised the particulate matter NAAQS in July 1987. changIng the indicator to PM-b EPA proposed a number of alternative policies. In that notice EPA indicated that the existing policy would remain in effect until EPA adopted a final policy (see 52 FR 24718 ( uly 1, 1987)). Since then, the 1990 Amendments to the Act were enacted. As discussed. section 107(dX4 (BXtl of the Act provides that all Lormar Group I areas were de.tp ad nmatf Ine utby. ape atlon .oIIawepon umctment of the Ainarnimenti. Farther, EPA Is anaware of any error It may have c,imaltted when it modified the boimdary for the Artibony area In Its October1990 aodoc. Thus, on November 15.1990 th. Anthony. New M ” area (as listed to the October1990 — be nonattaMma t for PM-to by operation of law. The EPA announced this da lgpatlonhi Its March1991 nodes. Ibe EPA believes the waiver provision alluded to hi NMSIXs coi m .rits provides a statutory alternative 4oEPA s RFDP (see section 18 of the Act The E PA tn* .na i sto provide g” 4 ”e to the States on the meaning of section 118(f) later this year. In the meantime. areas d4 .lg!1 ted nonattainment for PM-to hmindiug former RFDA’s. should proceed with SIP development In accordance with the new law. The October .99,1990 Federal notice referenced by Nh was EPA’S sendannimi Regulatory Agenda (see 55 FR 45134 45198). This notice Is published for Informational proposes and has no regulatory effect. In addition. the October publicatIon preceded enactment of the Ad. Any confusIon emoted by the reference to the RFDA In that notice should be cleared by today’s notice. Finally. EPA notes that former RFDA’s will receive the same treatment that .11 other areas requesting a waiver will receive. it EPA Reds that an area satisfied the operative legal standard then, within the construction of the law. EPA will waive those requirements It believes appropriate. k. Jefferson Cowrty, Ohia. Ohio EPA (OEM) submitted comments Indicating that EPA erred In setting the boundaries for that portion of Jefferson County, Ohio. that was designated nonattainmeat at-enactment. After exththig the doQun rtatlon submitted byOEPA,EPAagreesthatanezrorwas committed. In both the October1990 and Mardi 1991 notices, EPA identified a boundary for thi, area that was Incomplete. It appears, for example. that EPA failed to dearly delineate a western boundary. The EPA has corrected its error in accordance with legal rationale described above. I. El Pono. Texas. The Texas Air Control board submitted comments on this area noting that “on March 8. 1991. the Texas Air Control Board (TACB) passed a resolution’ approving the Texas Air Control Board Designation Proposal. where the nonattaininent area for PM—lOin El Paso was changed In the ------- 37660 Federal Register / . VoL 56, No. 153 . 1 Thurediiy, August 8, 1991 . 1 Rules and Regulations City of El Paso Induding Fort Bliss.” Apparently. TACB sàught to clarify that Fort Bliss, which is within the dty limits but not part of the municipal entIt ’, was Included In the City of ElP aso nonattainment area. Celerelly, when EPA lists municipal boundaries or other boundaries Identifying a perimeter, all of the area within those boundaries Is part of the nonattainnient area unless otherwise specified. More specifically, Federal facilities are subject to the requirements of the Act unless thay have been expressly exempted from a requirement because the President has - determined that It Is in the “paramount interest of the United States to do so” (see sectIon 118 of the amended Act). The EPA Is unaware of any such exemption for Fort Bliss. Thus, as indicated In EPA’s March 1991 notice.. the City of El Paso. and any area within its municipal boundaries, Is anlultial PM—b nonattainment area.. -. D i. Wallula. Washington. The - Governor of Washlngtonsubraltted Information to EPA requesting that the Wallula nonattalnment area be. expanded to include Icenneivlck. ’ . Washington. The Governor s submittal etated .that these two areas should be combined into one nonattalnmènt area becauie the Wallula nonitt2 4 1 an.nt g a 5 does not include all of the major.sources which contribute to the air quality problem in the area. The Governor also noted the close proximity of the monitoring sites In the two areas. The Wallula area, as described In the October1990 and March 1991 Federal Register notices, was designated nonattainnient by operation of law upon enactment. Further, there Is no evidence that in developing either of these notices EPA intended the boundaiy to be different, but through an error (stied to so provide. Thus, the Wallula area Is currently a moderate PM-b nonattainment area. As such, the State of Washington must submit a SiP revision for the area by November15, 1991 contaIning the applicable statutory requirements and demonstrating attainment by December 31, 1994 (see generally subpart 4 of part D of title I of the Act). The EPA agrees that ICennew ick has a PM—b air quality problem and has already initiated the process to redesignate this area nonattalnment (see January 31. 1991 letter to the Governor of Washington from the Regional Administrator of EPA Region X see also 56 FR 16274 (April 22. 1991)). However. absent error. EPA cannot expand the boundaries of the Wa!lula nonattainment area to include Kennewick. if Kennewick is designated as an additional PM-b nonattainment area, It wIll be subject to statutory deadlines for SIP submittal, attainment demonstration, etc., which are different from those of Wallula. However, EPA notes that nothing prevents the State - froth submlttlnà a SIPlor the entire Wallula and Kennewlck area by the November15, 1991 SW submittal deadline applicable to the Initial PM-b nonat h niont areas and, consequently, beating this ass single nonattainment area. The opposite is not true. Under the law, the State of Washington cannot defer submittal of a SIP for Wallula until a SIP for Kennewick is due, assuming ICenne Wick is ultimately re ’l. ”Igi’ ted to nonattalnment. - n. Yakimo. Washington. The EPA. received no formal comm ’ts about the portion of YalrI ” a . Washington, - designated nonattainment for PM-b. However, in reviewing recu 48 subsequent to the publication of the. March1991 notice, EPA realized that a, set of coordinates were missing from the boundary description for the area. This announcement oouécts that error I D - accordance with the legal rationale - described above. . . .: - 2. Former Group Hand Ill Areas a. Ajo. Arizona. Comments were submitted on behalf of the Phelps Dodge Corp iradon (Phelps Dodge) addreislng EPA’s announcement of the Ajo plpnnIng area sean initial PM—b nonattainm ”t area. Phelps Dodge commented that air quality data do not show “a violation of the national ambient air quality standard for PM—to before January 1.1989 (as determined under part 50. appendIx K of title 40 of the Code of Federal Regulations)” because only one exceedance of the 24- hour standard has been measured (see section 107(d)(4)(B)(ii) of the Act). Phelps Dodge commented that, alternatively, the exceedance In - question should be treated as an exceptional event The PM-b standard is expressed In terms of an expected value. Section 2.1 of 40 CFR part 50, appendix K, describes the adjustments that must be made to Z4-hourdatalnorderto.etünatethe - number of expected exeeedances when. PM-b sampling is not conducted on a daily basis. Section 3.1 states that “ (un -. this adjustment, the assumption is made that the fraction of missing values that. would have exceeded the standard level is Identical to the fraction of measured values above this leveL” The regulations recognize that this adjustment may lead to overprediction. Thus. * 3.1 also states as follows: “To reduce the potential for overestimatIng the number of expected exceedances, the correction for missing data will not be required for a calendar. quarter inwhlch the first observed. exceedance ha oc . d 1f (a) There wasonlyoneevoredanceinthe. calendar átar, (b) evezyda9 sampling Is subsóquently Initiated and malntalnd for4 caIendar quarteru In accordance wIth 40 ( R 58.13, and (c) data capture of 75 p&cant Is achieved durlngthe. required period of everyday.anip t ”*g Sampling I. conducted ogce everyl days at the Ajo Station monitoring site. After the exceedance In question was measured, daily sampling wunot commenced. Thus, the regulations require correctIon for the missing data. After applying the adjustment referenced above, the expected exceedances of the 24-hour standard at Ajo constitute a violation of the i’M-tO standard consistent with part 50, appendix K. • Section 2.4 of part 50. appendIx K, governs the itiquiry of whether exceedance measured at Ajo should be’ treated as an “exceptional evint.” That regulation states that an exceptional. event Is “an wroonfrollable event caused by natural sources of particular matter or an event that Is not expected to recrir at a glvenlocation.” Phelps Dodge commented that “gusts In excess of W mph” were measured at the closest meteoroldglcal station on the day the exceedance was measured. The level of the wind gusts was noted presumably to Illustrate the anomalous nature of the event However, Phelps Dodge. submitted no information Indicating whether that high wind was the cause of the exceedance and, if so, whether the wind was likely to recur. In fact, Phelps Dodge suggested that the wind gusts were due to the area’s seasonal monsoon. SpecIfically. Phelps Dodge stated that “(tjhe conditions at Afo were characteristic of:mossoon weather patterns In southern Arizona.” Further. recent meteorological data collected neerAjo by lb. Arizona Department of Environmental Quality indicate that hourly wind gusts seater than or equal to 20 mIles per hour occur at least 7 days per year. The EPA, therefore, does not • believe the event Is properly deemed exceptIonaL Thus, as described in the March1991 notice, the Ajo plarmirig area Is an initial PM-b nonattajnment area. Finally, the State of Arizona appeare to agree with the Ajo boundaries. In a May15. 1991 letter to EPA. the Governor of Arizona suggested boundaries for the Ajo nonatlainnient area that were consistent with those set forth in EPA’s March 1991 announcement. b. IJulihead City. Arizona. The Arizona Center for Law in the Public ------- eR gls er ‘ / ôL’5& No 15 /ih Jdi g,’ i ø / R iIes ,g ca 8 &lI 1ó& Interest (the Center) commented that “EPA should add the Bullhead Oty Arizona. pIar nIn area (Mohave: County) tq the list of Initial PM-b -. noaaftalnment areas based on Its violation of the annual.standazd In 1989 and Iti exceedance of the 24-boar. standard in the same year.” ; • Bullhead City was a former PM-1O• Group Ill area. Section 1071d1(41(B)(ll) governs the Initial nonattalnment desIgnations of former Group U and UI, areas. That provision Indlcatesthat a former Group U or III area can be. desig ..*rt .d nonaP Inment by operation of law upon enactment of the ‘Act coIrif “monitoring data show a violation of the NAAQS for PM-be be cre Jwiuary 1 - 1989,. • . “ Violations of the tanaIp,tl occurring Iii 1989 would not qualify as a’ violation occurring befort January 1.. 1989.. Note, however, that ptirsu zt to - section 107(d)(3) of the ACt.EPA has initiated the process t6redeslgnate this area as nopattalnment forPM-10 .By letter dated January zi. 199v the Regional Administrator of EPA Region D C notified the Governor of Arizona that available Information Indicates that Bullhead City should be redesignated thnattalnment for PM—loud, or that basis, called on the State to submita redesigpatlon for the area (see also 50 •FR 16Z74 (April 22*99111. , . c Payson Arizona. The Center.. aubmitted.comments dalming that Payson. rfzona. should be de ignated as an Initial PM—iO nonattalnuzent area. The Center stated that “Payson violated the annual mean PM-b standard In 1988 and 1989. and ilso recorded Bye violations of the 25-hour standard In 1989 •“ Payson was a former Group III area. For the reasons noted in the B&tflhved City response. those violations occurring on or after January 1.1989 cannot be a basis for designating Payson as an initial PM—b nonattainment Panther, the 1988 data r cod for this area did not meet EPA ’s 9eneral data’ capture requirements (I.e.. was-- incomplete) and was not otherwise sufFiciently unambiguous to establish nonattainmecit (see I 2.3 of part 50, appendix K). More specifically. 2.3 states that Iris “generally necessarf for’ a monitoring site to have data which includes a mioinunn of 75 percent of the scheduled 131—to samples per quarter In order to assess whether a violation of the standard has been recorded. With a minimum sampling frequency of once in 8 days. a valid annual mean must be based on at least 48 obrervations (12 thservation per calendar quatterj. however. 12.3 aLso states that there a e “Ies strin.3ePt data requirements for showing that a monitor has failed an attainment test and thus has recorded a • vlolatlon.of the partlcülate matteu - standanL” Section 2.3sets out examples of how nonaltalàmentasay be -. demonstrated su beu a monitoring site does not meet the completeness criteria. With respect to the annual standard. I2.3provtdeLforexamp le.that nonattairimant way be demonstrated “oar the basis of quarterly mean concentrations developed from observed data combined with one-half the minimum detectable concentration substftuted for- missing values.’ Applying this analysis to the data collected In 1988 at the Payson - monitoring station. EPA conduded that Payson should not be an Initial PM-be nonàttalnment area. First, according to the State of Arizona data report a total of 19131—10 samples were produced In 1988 by the Payson monitor. This dearly fails the cdrnpleteness requirement IL • then..one-baIf the , nlnlm.on detectable concentration 01(4.0 mIcrograms per. Cubic meter(pgf m’)) Is substituted for the misfing values (say, 99, I.e., 99+10=48). then the resulting annual meafl would be approxImately 32 grg/m’ which Is below the annual PM-10 -. standard.’ • Huwvver. 1Mfljtr to the Bullhead City situation, pursuant to section 1 7(d)(S) of the Act. EPAhas Initiated tlte 5 .iw an to redesignate this area as. - aonattalwnent for PM—10. By letter dated January24. 1991, the Regional Adndnisfrator of EPA Region IX notified the Governor of Arizona that available information Indicates that Payson should be redesignated nonattalnment for PM—I9. and on that basis called on the State to submit a redesignatlon for the area (see also 50 FR 10274 (April 22. 199111. ii Tucson. Arizona. The Arizona Center for Law lathe Public Interest also commented that Tucson sbouldbe an inItial 181-10 nonattahunent area.- The Center’s request was based on monitoring data from three different sites In the Tucson area. First, the Center stated thu the Orange Giiwe Road sampling 1atiorr - monitored one 24-hour exceedance in 1985 and two In 1988. Since ‘the 1985’ exoeedanoe was produced prior to the promulgation of the PM-to NAAQS (see generalLy 52 FR 24834. July 1.1987). EPA did not adfust It for incompleteness of sampling and counted It as 1.0 In the calculation of the average number of estunated exceedactces.’ 2 The analysts “CenevuUy when utnptu I ii nut cond.icted one daiLy b.isie. A ediuste eticeedences of the 24.bogr •tiu.dod to order to estimate the number of eipicl. .d c edeiu,an (see S it of iO CR1 put 50 specified La t 3.2 of part 50. appendIx I C. wasthearappliedtothetwo - exceedancet’obseived In 1989.” On this basis, EPA calculated 3.1 excuedangés for 1909. Section 2.1 specIfies that the number oftóxceednnces Is determined by averaging the number of exceedances over the past 3 calPrIIrlryesx,. Therefore. the n imber of expected’ exceedances for the 3-year period from - 1980-88 Ia 1.033. After the rotmdhag’ called for- In 2.1,1.033 wouldbe less thanorequa ltoL owhlthdoesnot constitute a violation of the stamlard. Au” t ’ig for purposes of Wu : that the 4-year period from 1905-88- representative. then. cotisistent with I 2.3, the 1985 exneedance i ay be .coosideret lathiss ltuatioo,the. 11 1L . C ). 9- 1 ’ - 31 stats . this (I a this sdSeV ’_the s isumptios Is weds this the - &sãthse cI-’*i eslues this would ban esededth ,efla14 -ttc .ltothe 1110 01 iiiiiiuryj vsl is above this ks L’ - - sans paler to the pranslgatlonofplit S0- . . q - “ K. ThiS. tote of the 24-bow ezosedsate . ei... 4 In tees si Ibe O sage G t e .. land suaplbu site Is - Tames. Psrt1 sppeodix K. wan 11 ..M 1.k.4 out fuly Lum(swinds t eSL19u1iibo a ’& - tset.ed the lidianterhe utsrdmisti mitts. to PM-tO (see gemisly 52 F 541. When byeWed the PM-to indeed, and ,uu. Iget J a n” K. A thd out “r te ares, aid. 9...J .an.eosld bit - teen Inte n ded temb$ent pte-prawslgetiou data to due to ha. th dslI a.4JtL . kr thi l 4 M 01 L4 ...thu a m s aa.utittaI t. : - Ywthaf. b. .d . .thdSe catleintag dsltbefoti e. isles pmwuI atLos.bsd so esilidaithe ‘ - 01 lees.thsa4eeIy -day —‘r’ - ft would bsanf&rtp sdjed data “‘ll pe- pr .mnlpfl’ . . at this Thin. A alth that dite piUto Site ‘anle’s pruuedgatise mid used for m’- ’s an uress — ga’.-itoo Is not oonqttued as usuntibatliag ‘tnnmgulete dsta whitin die .—.-‘- 01-i ipeedIn K hethe esutner ,n.. ie of .djuistIsgda fw less thandsU ye ’n p l g - - The ”. wb b d i eA e ocybss - peit so. appendix K. pesiddes e .J ’ .oe of the Agency’. mtessl .. with the wifslaouss of sub 5sctlag pee . . Mka data to sdluinwent forlncoupletsoess. even before the seedy revised Ain PM-SO . in s lam I S Is poy4-- - faAse td that lithe (lest enuedsues is an usi o. ... . .4 palorto the - preusd. stIoe 01 sin PM-to e. .—’- .thlt would be — 11vse the di i mpitar Nqultemet (are genei* n.sptiunto stIo R IJdIfl PM-to State laupleseentatlout nan (SZP Development it page r i Flashy. thtoe Isso evidence to did resiud Ant that istet ided A to spp(y - , ip ” ’• Kin. ... “.—diffwmit11ewbow , Agency had . r*’J4 1 It palorto—” '”’ - - ‘Th. coanputaflsu hesotn.tlopeusedsaces to sd uat is. mhsalop dsta ste perfcaned quietest. Threate .pecla p. .u . K fmwgtsl Is sddresa the situation with wisdiedided ‘r’ ’ In ouder to reduce a bias tebidi may be Inteodoud by ooo mtlferm smplicg during linquatter. During the third quieter of 1905. when the two exceedsutoes oncurrut there was a diange In semplLn Irequencp from evciy.odwidey to e’vwydsy. Ateoedaitg ly for the pmpopm of estimating exceedaitces. the sample achedulo wan auiwied to be eve.y.other.day (or the entice qqwler sod. for eotnpotstlonal perpoes.. some of every-day samples ate treated us u .iw ted ,de tt. - ------- 87662 . Federa’ egister 1’ Vol. W No 153 / “Thin ’ day ‘ A igüM 81 1991 f Rures and Re ulaLIdr1s expected number of exceedances would be 4.1 over a 4-year period which Is 1.025. After the toimdlz*g c2I1 d for Irs I L1. this would beless than or equal to 10 and would not constItute a VIOlatiOn of the standard. . The Center commented that elevated levels of PM-b were monitored at the Congress Street station. Speclflca ly, the Center states that the annual st . .Aard was violated In 1989 and that three exceedances were monitored In 1989. Tucsofl was; former Group II area. As noted. under section 107(d)(4fiB) (HJ a former Group II axes can be designated nonattalnment by operation of law upon enactment of the Act only If “monitoring data show a violation of the national ambient air quality standard for 131—10 before January 1, 1989 • .“. Because the violations cited by the Center occurred on orafter this date, they would not constitute a basis for designating Tucson as an Initial PM-1O nonattainment area. - The Center also commønted that the monitor located at Prince Road monitored a violation of the 1989 annual standard. Again. EPA notes that a violation must be monitored prior to. January 1.1989 to constitute a basis for designating Tucson as an Initial PM-b - nonattaliunent area. ColTecling EPA’s announcement of the Initial PM—b nonattalnment areas Is the narrow question addressed by the Agency In today’s action. Nevertheless. the Center has alerted EPA to possible attainment problems In the Tucson area which may be a basis for redesignating this area as nonattainment pursuant to section 107(d)(3) of the Act. The A will review the PM-b data collected In Tucson on or after January 1.1989 and expects that it will reach a conclusion about Tucson’s statue (and whether to initiate the section 107(d)(3) redesignation process) sometime this Fall. e. Bonnet County. Idaho. The Administrator of the IDEQ submIUed comments addressing the Bonner County nonattainment area. The EPA announr.ed that “Bonner County was an Initial nonattainment area In the March 1991 notice. The IDEQ submitted a more detailed description. Isolating that portion of Bonner County believed to warrant nonattainment designation. Consistent with the definition of nonattairtment area in section 107 [ dlll)(A)(i) of the Act, in today’s notice EPA has refined the boundaries for this area as requested by IOEQ. 1. Oglesby. Illinois. The Governor of IILEOlS submitted information to EPA re’ ”.’sting that an additlnE’lI section be aw d to that portion of ‘. . . csby designated nonattainine i for PM—la. Consistent with the definition of -. . “- aonattalll .m.nt area In section .‘ 107(d)(1)(A)(Q, EPA has added the’.r -. section and announces that the Oglesby 131-10 nonattalament area Is as - ‘ a described In Table L In January 28. 1991 correspondence to the Governor of illinois, the Regional Administrator of EPA Region V had. Initiated the process to redesignate as nonatt tniitent this portion of L*Q IIa County. That process has been mooted by the action announced In todays notice. s. Clinton Townsh a Indiana. The Indiana Department of Environmental Management (IDEM) requested that the boundaries for the Clinton Township noaatfnl ent area be reduced to Include eight sections In the Township and submitted technical Information supporting their request. The EPA has reviewed the information submitted by IDEM and apees that the area should be modified to Include only the eight sections Identified. The IDEM’s Information shows that violations of the standard ale attributable to a coal mine In the area. The EPA believes that limiting the boundaries to the eight. sections suggested by IDEM does not exclude any significant sources or any likely nonattRjIun nt portions of this area. Thus. EPA Is r 8 ”ng the boundaries of that portion of Clinton Township that Is designated as nonatt Inm.nt for P1 ,1—10 to Include these eight sections, consIstent with the ‘lefinition of nonattainment area in section b07(d)(1)(A)(I) of the Act. h. Rochester. Minnesota The Minnesota Pollution Control Agency (MPCA) commented on the City of Rochesters nonattainment status. The MPCA requested that the boundaries for the nonattaixunent area not Include the entire city. They submitted information supporting this request Including documents Indicating that EPA had Intended to Include the modified boundaries in Its March 1991 notice but through admInistrative oversight failed to do so. The EPA believes that the nonattainment area should be less than the entire city and EPA Intended to provide more refined boundaries In its March 1991 notIce. Violations In Rochester have been attributed to coal storage at a power plant. This facility is - the only significant source in the cIty. -. The EPA’s refined nonattainment area includes the source and all the area EPA believes to be monitoring violations of the NAAQS due to the source. Thus. consistent with the definition of nonattairunent area In section 107(d)(1J(AJ(i) of the Act. EPA has refined the nonattainme1 t area. Rochester Public Utilities (RPU) also submitted co” ts addressing this area. The P.PU requested that EPA reconsIder Rochesters 000att.bin.n( - designation. The RPU commented that no violation of the NAAQS has ooC . . d In the area. Specifically. RP1J asserted that there has been no violadanof the NAAQS because only one exceedanc ’ of the standard has been measured and there have never been two exceedances during any 1 year. Further. RFU ‘commented that the event causing the exceedance was an “exceptional meteorological event” and should not trigger a nonattainuient designation. The RPU also commented that the sampler malhmctloned and did not reliably measure 134-loon the day the exoeedance occurred. The PM-b NAAQS Is expressed In terms of an expected value. Section 3.1 of 4o FR part 50. appendix K. describes the adjustments that must be.made to 24-hour data In order to estimate the number of pec1ed exceedances when PM-in sampling Is not conducted on a daily basis. Section 3.1 states that ‘IlIn this adjustment, the assumption Is made that the fraction of missing values that would have exceeded the stnnit rd Level Is Identical to the fraction of measured values above this level” The regulations recognize that this adjuàtnaent may lead. to overprediction. Thus. §3.1 also states as follows: “To reduce the potential for overestimating the number of expected exceedances. the correction fot . i ing data will act be required for a calendar quarter In which the first observed exceedance ha. occurred if: (a) There was only one exceedance in the calendar quarter. (b) everyday sampling is subsequently initiated andmalntained for 4 calendar quarters in accordance wIth 40 CFR 58.13, and (c) data capture of 75 percent!. achieved during the required period of everyday sampling.” Sampling Is conducted once every 0 days at the site where the exceedance In Rochester was measured. Daily sa pllng was not commenced after the exceedanee. Thus, the regulations require a correction for the missing data. After applying the adjustment referenced above. the expected exceedances of the 24-hour NAAQS at Rochester constitutes a violation of the PM-b NAAQS consistent with part 50. appendix IC. Section 2.4 of part 50. appendix K, governs the Inquiry of whether the exceedance measured at the Réchester monitonng site should be treated as an exceptional event.” That regulation states that an exceptional event is “an uncontrollable event caused by natural sources of particulate matter or an evrrnt ------- Federal Registerf Vol 56: No. 153 / Thursday August 81991 I sandRegulâUà is that is not expected to recur at a given location.” The RPU conwnented that. extremely high winds occu rTed on the day the exceedance was measured. The RPU cited a memorandum by MPCA requesting that EPA heat tiur. exceedancs as an exceptional event and noting that the Rochester National Weather Service Office measured wind speeds in excess of 40 mIles per hour on the day the exceedance was measured. As noted. EPA believes that coal. storage at a power plant Is responsible for the exceedanon. Thus . the event In question would not qualify fortreatinent as an exceptional event under the first proogof the exceptional eventS siandards lnce itis controllable and was not àaused by natural sources. Further. EPA has no basis to believe the eveltt would meet the second prong of the operative legal standard. While high winds were cited, no Information was submitted Indicating whether that high wind was the cause of the exceedaace and If so. whether the wind was likely torecur. The EPA also believes there Is - insufficient technical basis to cast doubt upon the reliability of the measurement 11 eRPUnotedthatithadbeen Inforceed by MPCPL that the sampler was encumbered with large particles. and possibly a dirty sampler head “such that quantification ofPM-10 could not be accurately and reliably theasigp l. .“Prevlously. MPCA had - submitted to EPA a mkio.coplst’s analysis of the filter sample. The analysis concluded that large paitjcles were collected which should not have - been measured and suggested that the sample point be Invalidated. The EPA found the mlcrvscopisl ’s analysis technically deficient since It did not document the quantity of large particles collected and encumbering the sampler. Thus. EPA will not disregard the data due to the Inadequately substantiated. claim that the sampler malfunctioned. In sum. EPA has adjusted the. boundaries for this area In light of MPCIVs cossments and consistent wIth the definition of nonattatament under section 107(d)(1)(A)(I) of the Act However, for all of the reasons explained above, EPA denies RPITs request to totally eliminate this areas. nonattainment designation. - -. 1. Audroin County. Missouri. The Missouri Department of Natural Resources (MUNRI submitted comments addressing EPA. designation of monitoring sites sInce 1988 were’ Audrain County. Missourt as an Initial determined by the TACO to be - PM-10nonatfnlnm nt area. The EPA Influenced by wind-blown dust.. Identified Audrala County as an Initial transported from out of State sowuss. nonattainmpnt area because of an As a result, the TACO and the City of exceedance of the PM-lO U-hour Lubbock contend that the days on whIch slanlard occurring on August 1.1987. eyreedanne , were .neasuied were days The MUNR submitted Information seith unus ”y high wind gusto sadni - suggesting that these data were Invalid, such, these days should be considered After reviewing the technical . as exceptional events and excluded lnformaÜon associated with this from the iecords In acoordan ce with measured exceedance, EPA has EPA:s exceptIoO a1 ven1s pal1cy undei concluded that the PM-ia sampler malfunctioned on August 1.1987 and C R part 50. appendix I C . 2.4 They. also contend that if the days with the. operated for a.perlod exceeding24 bjgh winds were e” ””’ d as - hon ., Section 1.0 of part 50. appendIx IC. ____ specifies that a “daily vilue” Is a “24- exceptional events, She 4giu st 24 hour.. hour average concentratlonof a... itrttIon recorded at thi Lubbock... calculated or measured frommidnight monItorwR sites would be 128vs/m midnight • .“ The EPA hal wh ’ I below the national sInlad ot lnvrilidated the exceedance sInce A 50 grgfm’ . .:.. believes the sampler ran for loirgerihan TheW.A has reviewed all data’ 24 hoar. and was not measured from submitted by the TACO and the City of midnight to midnight By todays notice Lubbock In ms.frh g Its decision on the EPA removes Audraln.froin the list of• affalniviFilt status of the Lubbock area. initial PM-b nonattainment areas. . Sectloii 2.4 o pazt 50, appendix i C because EPA believes Audraln County. Indleutes that certain exceedanre , of has not measured a “violation” of the the PM-b NMQS can be adjusted to PM-b NAAQS within the meaning of take exceptional events and trends Into part SO, appendix IC. account The data available indicate J. C ,lwnbia Foils. Montario.(Flathecd that Lubbock has monitored a limIted öouniy The Coveinor of Mqntana. numbei of PM-ia Levels In excess of the requested that ’A expand. by M1 g . 24-hour PM-10 standard. Further. thi one section. the Columbia Falls,- Influence otlong. ange transport of :.. nonatI Inipent area. In gh of the -: .: . in W nst on these ie s ired.. .Coj eOs comments and. crnilteiaI - exceedance m ” It difficult to’... wfthihe dg cIUon of nonattaInment deternilne the associated eacy and area set forth in section 107(d)(i)(A)(I) of nature otthese exceedanoes. This the Act, Eg’A has adjusted the rmuj in uncertainty In bow to treat bo indarfe set forth In the Ma h1*9i, events. Because d l noUce.. this uncertainly. EPA feels that an k Lubbock. Te cas. The TACO as well nnr1a sifled status Is appropriate lot as the City of Lubbock submitted - Lub while additional Information is comments on the March 15.1991 Federal. collected, Register notice providing an analysis of the Lubbock PM-b air quality data IlL Table Desathing the Initial Moderate collected over a 4-year period (roar PM-b NöuatI 1n”” Areas Correded 1989-1989. The TACO commented that by Todays Notice they had performed an analysis of all PM-la filters showing an . Based on the foregoing dIscussIon. the NAAQS These analyses included an today 15 changing Its Match 15 Interpretation and evaluatlonof soil 1981 (58 PR 11101) announcement of the samples and particulate matter collected Initial R4 bOponattnInmnt areas. The on the filters. The results of the analysis-. attainment designations for those of the filler and . ll samples indicated - areas corrected b7 today’s notice are set that these was a distinct difference forth In the following table. Consistent between ,the particulate matter with EPA’s announcement In the March deposited on the filters from routine 1991 notice, all of these areas were - monItoring days and those from the . cIassified as “moderate” PM-b days of hIgh gusty winds and blowing nonattatninent areas by operatIon of dust The three exceedances of the FM- law, pursuant to section 188(al of the 1024-bout standard at the Lubbock Act. ------- 37664 Federal Register I VoL 56 No. Lmuziday. August 8, 1991 I RuIe . Regulations The ( ci Si ora 13-36 ci 33 • ___ . - - .: • 6 sou5 Sec6on 31 ci vsç. 35 sent sld 5 on* S.cmlie 1-36 ci ,sçe 33 .si 11 I. - .4i I souci Si oce 1-35 ci isi e 34 a s I,.. . U, . I sas S.clonc 645 ci tongs 5 isi .11 09 . ...J . 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RIWI—Ssdorw 2. 11. 14.16,16,17.10.20,21.22.23.2427. * 26, 50, 31. 32. 33, end 34 T I2N , R1 —Ssc5ons 4 5. I, 7 TI3N, R f—Sa ns 33, 24. 36. 26. 35. end 36. ________ Biolen The NuIUi . . . .iI corner ci eethon 2, 7.35.. R*I_ limos Csszaty 09 conw Sedan 5, T.YI. 5.1W, hence Soidonly 09 IUUu.resl conw Seden 0. 1.35, R .7W hisnos Essleily 09 Pi ..iii..1 enmer Sedan 10, T.35. R.7W , lonsu Southuly 09 South t corner SscUcn 22, 7.35, R.7W , lon Wed $j ’ 09 SOuleneel mow S n 19. T.Z4.. 5.7W, thues Norlrniy 09 N , Ui mow Sedan 19.721. 5.7W.. hones W ty 09 Soid09ud suns Ssdon 14. T24, 5. 5W., Sieves P&jIi.il 09 Sauthwsd coiner Sedan 35. 735.. R.SW. hones W $y 09 Souhusi mow Ssi09n 34. TiN.. R.IW, thence Nui*&7 09 PSdUIwud cams SeaSon 27, TiN.. 5.5W. Isee W.a1.t 09 Southued canon SeaSon 20. 7.35.. R.SW. theme NoilonPj 09 Northwest corner SeaSon 17. TiN. 5.6W, hones £colui$y to P&. .ili..eet corner SeaSon 14, TiN.. R.BW. thence northedy 09 the po09t c i be,L. .J..g . The see boimled by Mubs Sleet (Stile Soils 4$ ) born hi. Wed WpbdolOtSo bolder wed 09 Seed 509t (U.S. Rcuts 22). Siasut Slid. wed to ml SteilisiwUlo T.... . J4 /Qoss Oeeli T......Jl , , boisidsy, the sdi baisiday south 09 lIe Stalisiwole Corporation 51€, ml coipaisS .. . boimmly sod I D Stile ROde 7. State Rode? Sosdi 09 lie Steuthenwlle T ... ..diW Weds Tci...di boadsy, ml boadsy sod to ml Wed * ma/OlSo bails. ad Nalli on ml boils ID Model Sen uL The see bsglded on the souls bye lie from UTU & ..09 694ã00mW, 515700011*1. 09651000mW. 515700011*1. thence north dong a lie 09 wQ.J..l&4 68100011*1.51723001114, theies sod 09 694000mW. 51720001111. thence sedi 09 the blvL.l.qi co .ste 69’000nW . 51570009*4. When dOss or towns we diosni. lie ass ci 09 dthied by the melc 11 boi.mday I’ls cool l&,. ,nOer 15,1990 (the doted aedilati ci the Act) xcept for seen sI di were loimedy Group l.li wildi see the ass ci . . ..1 . 09 deloed byml suI 11 bolalsy 0969 end Cowiw 31. 1990 (See 55 45799). (The 0 9 0 0W 09 - ,j - -’ ’ - 09 IDdey ’l edon end doe mo the Set 09 the ads add the Mudi 15.1091 FeuRJI. RoOSTER notice (56 FR 11105).) ___ ___ ___ ____ ____ i iWhena ass 09 duoun, ml eves ci eancen. , kedjdss the s Os iI....L . see en ci 13,1990 (lie doled flidi1 ci ml lid) sespt for seas ilidi see fo.rn. .lIy Group I, Ii wildi the seed . 09 doled by ml sills L.J . . , eon end Odlis 31,1W (ass 55 FR 45799). 09 to ml onteil the Øsewig see 09 bather ddoied ( e.g. by I ..reJ4 ,, suigs, end/or sedan). Sicit geov.w4I .4 4e.4 i09lS ammo spent ci the .enanawmeiti boisiduies L . ..Uive ci . diiUiir they ens kidded Ii the pt...à1 1 ass. (The tor*ids 09 . , I. _ LI 09 my ’s odon aid abs S i. s d locCele m lie table heed Ii the Merdi 15.1091 PeeERSL Reweirj . notice (55 FRI 1168) ) _____ “AulsIl Cosedy. wee removed en en flOel PM-b cor ..m d sea. See ovs. I? I . ká * Tasu. wee isuosad Si lied PM-1O nanattllunerl ass. See . . .. .n09 ll IV. Significouce of Today’s Adieu November15 1991 whIch Includes the . December15, 1993. In addition, a new By November 15. ig i. states must followlng (1) Either a demonstration eoiiYCe permit program meeting the adopt and submit to EPA a si vision (includ ing air quality modeling) that qremonta of part D of the Act is for all those areas that were classified plan will provide for attainment by required for the Construction and as moderate PM—b nonattainment areas December 31. 1994 or a demonstration operation of new and modifled major by operation of law upon enactment of that attainment by that date Is stationary sources of PM—b (includjag, the Act (see subpart 4 of part D of title i impracticable: and (2) provisions to In some cases. PM—b precursors). A SIP of the Act as amended). In particular. assure that reasonably available control revision meeting this requirement is due section i89(a of the Act requires that all measures (including reasonably by June 30.1992 for all of .e initial of the initial moderate PM—to available control technology) for the moderate PM—b non :Iainrnent ireug nonanainment areas submit a SIP by control of PM—b are implemented by The EPA will provide ndditIon. l TABI.E L—PM—1O tsnw. NONATTAINP.IENT AREASIs,%s,I ,IT •: State aid cowdes heed wIbt iu - de ILil I L I ’— SBier Bow Ws 1 1w i la re V.frb. .. ------- Federal Register / VoL 58, No. 153 I Thursday . August 8, 1991 / Rules and Regulations 37865 guidance on SIP requirements for these areas In the near future. Also note that EPA will be reclaulfythg some of these Initial PM-b nonatfthwmt areas boat moderate to serious because they cannot practicably attain the EM—b air quality standards by December31. 1994 (see section I.88(b)(l) of the Act). If reclassified as serious, these areas will be subject to additional wutlul requirements and a new attoislinwot date. The EPA will work with the States In order todevelop aproposed list of moderate areas to be reclassified as Lerlous. V. Effective Date of This Notice As mentioned, the effective date of the annoam ment of the doa%nntioa and claceffi Ucn of areas adjusted or corrected In today’. notice Is August 8, 1991. While 5 U.S.C. 553(d) (the APA) states that the effective date of certain administrative actions must be 30 days after publication, EPA does not believe that provision of the MA Is applicable to this action. S.ctm , 107(d)(2) of the Act expressly states that “promulgation or annooncren.nt” of a designation under section 107(d)(4) shall not be subject to 5 U.S.C 553-557. The provision estabilahing the PM—Is designations that occurred by operation of law upon es actmeat of the Act (the designation of the U ftj J PM-Ia nnat’ -I . -°”t areas”) appears at section 107(dR4)(Bj. Thus, announcement of the initial PM-b aonattalnment areas Is exempt from the notice .end. .comn .nt rulemaking procedures set forth In 5 U.S.C. 553-557, Including the I 553(d) requirement that the effective date of certain actions must be 30 days after publication.” VLFlnaHty The EPA will take final action on the Initial designations for PM—b (under section 107(d)(4)(B) of the Clean Air Act) for the purposes of section 307(b) of the Act when EPA formally codifies these designations In 40 a R part 81. ThIs includes those designations announced hi the March 19.1991 notice and any subsequent modifications made In this notice. As noted. EPA Is expected to “Utlie AM Irswaat thai pubUosilca precede the effective date of ositala actions by 30 days was deem appii.hi . to todays adios. ‘A bcIleves this action would be within the pwwlew of the good canoe exception to this requirement. SeeS USC. 553(dJ(3). The March U. ion Fedsrui Rcglstsi notice .nnoundng ths Initial PM -1O oo .isttahumeul steas was effective todays stir publication (I... May 14.1591) In order to allow for • .dep moment period and any appn,prtat. kilow-up adjusuosnia by EPA. In this Fadosal S notice. EPA ,esponda to momenta .ddi ng the Mardi ion notice. Thus, there Is no insecii to defer the effective date furtizer. complete a part 81 cedlficatlon for PM- 10 and other tItle 1 aIr pollutants In the near future. vu. Anlhnslty Sections 1W(d)(2 ) . 107(d)(4), 110 (Including 110(k)(6fl, 188(a). and 301 of the Apt provide authority for todays action. Datedi July 31. ISSL — - Assistant Administ r ator JorAfra nvi Radiation. IFR Dec. 9i-IS5V Piled 8- 7-I l ; t4SamJ FEDERAL COMMUNICATIONS COMMISSION 47 CPA Part I (FCC 91—2171 Standards for Assessing Forfeitures ACENCY Federal Ctpi.in imjcatlons Coiiinit nslon. AcTusic Policy statement. suuuanv This policy statement establishes standards to be used by the Commission In assessing forfeitures. Adoption of the Policy Stai.meeit will assist the Commlsslnn In ensuring that similarly situated violators are treated In a similar manner and will provide guidance to the public regarding the forfeitures that can be expected In connection with specific violations. EPPECTIVE DATm August 8,1991. roe mmea esroeva*viow CONTAC David H. Solomon. Office of General Counsel: Federal Communications Commission (302) 632-6990. SUPPLEMEPifAPY SIFORMATIOIC Policy Statement Adopte& July11. 1991; Releasedi August 1. 1991. EytheComudss lom L Ifltroduction 1. In this Policy Statement, we establish standards for assessing forfeitures. These standards are set forth in the appendix. We intend lobe guided In the future by these standards. although we note that we remain “free to exercise’ • discretion In situations that arise” In specific case. See Guardian Federal So vings bLoon Assn v. Federal Savings and Loan Insurance Co.. 589 F. 2d 658,608 (DC Cit. 1978). 11. Background 2. The Commission has traditional!y assessed forfeitures on a case-by-case basis. in fight of relevant precedent. In 19 Co eu substssth* Inoreased the dollaramounts of cur forfeiture authority. Public Law No.100-239. U Stat. 2131. As the Caiminl..lain u Implw this inoreased faufeitwe aLwlty we believe it I. 4ate to depart from our trs&’ oael case-by.case approach and adopt more specific standards fur assessing fcifeltm Such standards will assist the l’ , ,mI..,,. , In ensuthig that . lmIlerIy situated violators are treated In a comparable and will provide guidance to the public regarding the forfeitures that can be expected In conn cUnn with apedflc violations. (The Cn ,nn.lasion rm Iwa - free, of course, to reipend to violations with other or additional action, for example, admowiubunosit . revocation or non-renewaL) EstablIth!g forfeiture standards Is consistent with a recommendation of the AdaiMistratfve Conference of the United States (ACUS), and Is similar to approaches taken by some other Independent regulatory agencies. See Agency AssonantPnt and Mitigation of Civil Money Panaldes. Recoinwawlntion No. yn 30529-3 General Statement of Policy and Procedure for NRC Enforcement Actions. 10 CFR chapter 1. part 2, appendlxC. ilL Discussion 3. Section 503 Forfeitures. Most Commission forfeitures are Issued under the Commission’s general forfeiture authority contained In section 503 of the Act. Under section 503(b)(2). for each violation or each day of a continuing violation, the Commission may now assess forfeitures of up to S25.000 against broadcasters, cable operators or applicants for such facilities. *100.000 against common carriers or applicants for such facilities, end $10,000 against others. In addition. there is a limit on forfeitures for continuing violations Involving a single act or failure to act of *150.000 for broadcasters. cable operators or applicants for such facilities and *1.000.000 for common carriers or applicants for such facilities. A limit of $75,000 applies to continuing violations Involving a single act or failure to act by others. 4. Our new standards for section 503 forfeitures establish base forfeiture amounts for specific classes of section 503 forfeitures. The base forfeiture amounts are based on a ranking of a relative gravity of the violation involved. The base amounts are computed as a percentage of the statutory maximum for the service involved. For example. failure to comply with prescribed tower lighting and ------- Federal RegIster / Vol. 58. No. 77 1 Monday, April 22. 1.991 I Rules and Regulations Today’s Action ‘The EPA Is. by this notice. Identifying for the public those PM—to. SOi. and lead areas for which EPA has notified the affected States that EPA believes the area should be designated or the designation should be revised to nonattainment or unclassIfiable. Upon receipt of responses by the governors of the affected Slates, EPA will review the submitted Information and conduct appropriate rulemaking. at which time the public will have additional opportunity for review and comment. 1 Ust of Subjects In 40 CFR Part 81 Air pollution control. Lead. Participate matter, Sulfur dioxide. Authsdty SectIons 107(d). 110 and 301(s) of the Clean Air Act as amended. Dated April 13. 1991. Michasi Shapb Acf irIgAsthtcntAdrninhslr owrforAir and Rod /a Table L—PM—lo Designations jMeu for w lá A bee nceot1 boWled lbs affected Stat. that A believe, the a m a should hi is4—l ist.d a. omauata.eu’ fir PM- I D I Aetams P.p.os. Snflhu-d city. Cailfisoja Samsm.nt. County. Sas 9urnrdLso County. cgoru _ _ . . Stuamboat Spi . Idaho kootunal County. Illinois Edpo County. Ilast and SOsOon twp I a 3.11 , County. ?wp. aE Rare, lSsctks 3 MIdd .. lay County. Mlucwt SI. L ouis County. Mcutanu 1ts ,. .. . . , Pails. New Mexico Bmnaiills County. New Yosh N ,. Yoi Cmaty. Or o. 0absd s. Wsshlntoa Dentin County. w..t V 1 1n 1 city of Whim. on PM-IC NAA violsUme mss,d or aft. unify I. I TABLE II Simi. . d counss r j .L41ld - .N d - - 40 CFR Pail 281 (FRL-3923—13 New HainpshWs Approval of Stat. Underground Storage Tank ProgrOm AGENCY: Environmental Protection Agency. ACTIUI8 : Notice of Tentative Determination on Application of New Hampshire for Final Approval, Public Hearing. and Public Comment Period . SUMMMY: The perpose of this notice Is to amtowtce that: (1) The Environmental Protection Agency (EPA) has received a complete application from the State of New Hampshire requesting final approval of Its underground storage tank (UST) program under subtitle I of the Resource Conservation and Recovery Act (RCRA) (2) EPA has reviewed New Hampshire’s application and has made the tentative decision that New Hampshire’s UST program satisfie, all of the requirements necessary to qualify fo final approvak (3) New Hampshire’s application for final approval Is now available fo, public review and copylng (4) pubLic comments are requested; and (5) a public bearing will be held to solicit comments at the application. If requested. DETESt A public hearing I . scheduled for May20, 1091. The State of New Hampshire will participate In the public hearing held by EPA. The hearing will begin at 10 sm. and will continue until the end of testImony or 1p.m.. whichever comes first Requests to present oral testimony must be flied by May17. 1091. Written consent must be i vcelved by May A 1991. EPA reserves the right to cancel the hearing should there be no significant public Interest. Those Informing EPA of their Intention to testify will be notified of the canceilat lon. *DO *SS!St Continents and requests to testify should be mailed to Susan Hanamoto. Underground Storage Tank Program. HPU-1, U.S. EPA. Region 1. JFK Federal Building. Boston. MA 02203. Copies of New Hampshire’. final application for program approval are available B a.m.—4 p.m.. Monday through Friday, st the following locations for review.. New Hampshire Departh ent of Environmental ServIces 8 Hazes Drive. Concord. NH 03303, l%oae (803) V1-3044; U.S. EPA Headquarters. Ubrery. room Z 1IA. 401 M Street, Washington. DC 20460, Phone: (202) 382-5928 T*ai.E Il—Continued (4,saa fur wtdt EPA 1ti m sju mOunt Si slfsctsd Stats Sit EPA bsI as Ste ores uiun bs N4l.’ ”.ISd U lIOflht JThi.4 for 50.1 s .nt ooi Ouis , kU — D PsrCo. Jte..&..CoL_ — A Diø a fw _ Wevun Co. T ___ . X X X X X X x. . x X w 0ct sCo. 1 0 1 5 1Ou 0(Coka itla_ X X TABLE IlL—LEAD DESIGNATIONS (Man EPA t Stunid be d. . .J, . ..tsd namSivnosO at u - ’ - fur usd3 $lstewto rCss Pibnes A — ‘ ! I JJl___ , .____ . I LosAn i .Co ._ ‘ 2 Rnt l ar u,* CA x — a ,:C o .__ 2 M.to . 2 es Eat eaten Rooms PaW i _... . ..._.... _.. 2 2 ‘NalCo. 2 2 DuIscA 2 ISL .I J.h 2 ..*iosaco._ X U iz P u ’i’— 2 Nm Yofu wi ,Co. 2 ‘ t i iJ.Co. X as. qatie sc& 2 P a U . BaheCo.______ 2 T...-—— mt.e,co. x Fu als Co.______ 2 x Tame CoII ,Co. 2 BaunCo. 2 (Aime_W wNOuI EPA tm n .J Ii. . l1.d.d Staten Out EPA batsus 0,s ores dm 55 bu . .J.4 as . ....iU... .. ,.l SOil 4 fume as f unCo. 2 2 1 MaOu.e nCo . 2 2 .IS&Ct.Co. X S ‘Pumuent to .sctloa 107(dli2)(DI of lb. Ad. lbs promuiption of th sad da.igizauou. I. not subfsat to the A tat utrothu Pmoadini Act Tequlonnaftu fo , nodc...nd .oommant ro1 ’ng (5 U.S.C 51$- ssij. lL..., .sr . ass matte, of poblic policy. EPA may thooss Ii psuvid. such noltc. sod mammal or othor opportunaty for public review, (FR Doc. 91-0309 FIled 4-19- I l; MS amj unoo case us u ------- 16274 Federal Register I Vol. 50, No. 77 t Monday. Aprtl 22, 1991 1 Rules and Regulations 2. ? . ,r the period between April 1. 1991. and May 31. 1991. paragraph (d) of O 117.911 is revised to read as foliows: Note- Thai. a temporvy nile and will not appear In the Code of Fadurel Regulation.. f 111.811 AtlantIc l. .t..ca.sli W s j , Lifts River to Sa .,aIt River. • . I • • (di SR 171/700 bridge across Wappoo Creek Mile 470.8 at Charleston. The draw shall open on signal, except that the draw need not open (mm e am. to 9 am. and from 4 p.m.to 6:30p.m. Monday through Friday. except Federal holidays. From April 1 to November 30, from 9 a.in. to 4 p.m. Monday through Friday. except Federal holidays, the bridge need not open except on the hour and on the hall-hour. From April 1 to November 30. from 9 am. to 7 p.m.. on Saturdays. Sundays and Federal holidays, the bridge need not open on the hour and half.hour. Dated: April 9. 1991. Roburt 8. Kianssk, RearAdmitv!. U. Coast Guard, Commander. Seventh Coast GuojdflhstricL (FR Doc. 91-9338 Filed 4-19-91:8:13 amj umir corns *15.14.0 ENVIRONMENTAL PROTECTiON AGENCY 40 CFR Part 81 (AD-FRL-3923-5J Preparation, Adoption, and Submittal of Stats ImplementatIon PIwis PU-10, Sulfur Dioxide, and Lead Nonattainment and UnclassIfIable Area Deslgnatlons ASENCY Environmental Protection Agency (EPA). acyico: Information notice. suuMA Pureuant to sections 107 (d)(3) and (dfl5) of the Clean Air Ad as amended by the Clean Air Act Amendments of 1990 (Pub. L. 101-549. Nov. 15. 1990) (the Act). EPA Is authorized to promulgate designations of new areas (or portions thereof) as nonattainment. attainment, or unclassifiable for particulate matter less than or equal 1010 mIcrons (PM—b) sulfur dioxide (SO,), and lead national ambient air quality standards (NAAQS). As required by the Act. EPA has provided notification to all affected - States that the lead designations for certain areu should be submitted or that EPA believes that an area’s PM—b or SO, designation should be revised. Pursuant to sections 107 (d)(4)(B) and (d)(1)(C) of the Act, certain other areas were designated as nonattainment. by operation of law, for PM—la and SO.. respectively. For PM—b, this Includes areas previously Identified as group I and other areas with violations of the PM—b NAAQS prior to January 1. 1989. For SO,, this Includes areas which, prior to enactment, were designated as not attaining the primary and secondary SO, NAAQS. - The EPA Is, by this notice, identifying those PM—b, SO,. and lead areas for which EPA has provided notification to the affected States that EPA believes the area’s designation should be revised to nonattafiunent or unclassifiable. aoousu Information supporting the basis for notifying a State that EPA believes an area’s PM—b or SO,. designation should be revised to nonattainment or unclassifiable, as well as the basit for requiring States to submit new aonattalnment or unclassifiable designations for lead, can be obtained frvom the respective EPA Regional Office which serves the State where the affected area Is located. The contracts and addresses of the Regional Offices arm FOR PURThIR INPURMA11ON CONTAC1 1 . larry 0. Wallace (PM-la). Particulate Matter Programs Section. AIr Quality Management Division (MD-IS). Office of Air Quality Planning and Standards. U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, (919) 541-0906; F1S Gretchen Mume (SO.). Sulfur Dioxide Programs Section, AIr ( :ality Management Division (MD—IS). Office of Air Quality Planning and Standards. U.S. Environmental Protection Agency, Research Triangle Park. NC 27711(919)541-0642; F l’S Laurie Ostrand (Lead), Sulfur Dioxide Programs Section. Air Quality Management Division (MD’-15), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency. Research Triangle Park, NC 27711, (919) 541-3277; Fl’S 629—3277. SUPPUNtNTARY IN?ORMATIO Background for PM-b On July 1, 1987, the EPA promulgated revised NAAQS for particulate matter (PM) (52 FR 24634). replacing total suspended particulates (TSP) as the indicator for PM with a new Indicator called PM—la that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 microns. At the same time. EPA set forth regulations for Implementing the rev’ ’ particulate matter standar • Ac51 0 5sf. Sets Al 8:wCt, EPA Re an I, JF FiUsrsf 8i ig, Boston, MA 02203-221 1. (117) 115’3248: F l ’S 935-3249. • WOsu S. Biker. Olaf. Al PI ’o &.,s Biaiul . EPA Radon 1,98 F.d.i Ptsaa, New Yolk, NY 10279. (213) 214-2511; Fl’S 264-2517. • Mol 80 1*. 01 1sf. Al PIVyw.. . 01.011, EPA Rs on III, 541 Oiusbvl BI I . Pt1.J.bi PA 19107. 215 5974078: FT5 5974019. • Biuss P. USsr, Ola f, Al P w a 01sath. EPA Rs an IV, 345 aVurd Skin, NE., Atl1*a GA 30369. (404) 347-2064: Fl’S 217-20S& • $1101. Pt Sow.u . 01st. Al ost ai1 fl. 01emI EPA Rs an V. 230 Soiai Ds.t Stout. CNe.qo 8:10604,5)13)383-2211; FT’S 353-2211. • Gerald r ,.a....,t . Cd i i. Al Pr%.,.. . 01oWt EPA fiu an VI, 1445 Rosa Ausmis. 0Boe, TX 75202-2733, (214)655-7208: 7, 255-7301 • Gil. Wñ S. Cdi i. Al 01ouh. EPA 800. VII, 725 L01.... ,il . M * Koiss City, KS 66101,5)13) 236-1020 FT’S 275-7021. • De U. Skis, 0 1. 1, A l 01oIdt. EPA RoOm VIN, 998 1101 Stout. wsr P s—& 500. O5r , CO I -24O 5, 5)03) 293-1758: Fl’S 330—1750. Osald I.. CsSew, Cd i i, Al 01sa01 , EPA RsØ m Ot. 75 U. ,,.Ui....s Seem, So. Fro.co , CA 94196, ( 415)744-1218 : P75164-1219. ,• Gsergs Abel. 011 . 1, Al 01mi01 , EPA Nsan it, 1200 Sbttll Avs is, Seattle, WA 96101, (200 4 .IV8: P75330-1279. Ccmsctlc01. MW, kisaudvisuSs , New I ,..4I .. , Rilods lubeld. erto N Jousy, New York, Puerto Rioo, sad V1i I1* ds. _, 01*98 il cckrtIu. U..,I..aJ. Pu....,S*iS. , V 19 1* old Win V1m. Alibsms, Rortos, Osor a, Ksmlecky, ‘ — No .01 CsroI* Soisti oBoa. sad TlMmau b IOd pn , k01vusa% bNs. old Wlcomk Alkereas, LerMisas, New Modes, Oklahoma, sad Toma. Kousa . ‘ su sod N.L...L . I Albona. C,.D ....J& . Gina, lisw* old Nouda . Alaska, Idaho, 01eon . sad W..h& ------- Federal Register I Vol. 56, No. 77 I Monday, April 22, 1991 I Rules and Regulati one 16275 oun ed EPAs $ate Implementation plan (SIP) development policy elaborating PM—b control strategies necessary to assure attitnin.nt and maintenance of the PM-ia NAAQS (see generally 52 FR 24872). Ths EPA adopted a PM—ia SIP development policy dividing all areas of the country into three categories based on their probability of violating the new NAAQS (1) Areas with a strong likelihood of violating the new PM—b NAAQS and requiring substantial SIP adjustment were placed In group 1 (2) areas where attainment of the PM—b NA.AQS was pouible and existing SIPs needed less adjustment were placed In group 11 and (3) areas with a strong likelihood of attaining the PM—b NAAQS and, therefore, needing adjustments only to their preconstruction review program and monitoring network were placed In grdlip LU (52 FR 24872,24679-24682). Pursuant to section 107(d)(4)(B) of the Act, areas previously Identified as group I and other areu which had monitored violations of the PM-b NAAQS prior to January 1, 1989 were, by operation of law, designated nonattalnment for PM— 1O.Descrfptlons of the areas Identified as group I and II areas were clarified in a Federal Register notice on October 31, 1990(55 FR 45799). That notice also Identified group II areas which violated the standards as of January 1.1989. The EPA has announced all of the areas that were designated nonatf lnm,iit by operation of law for PM-b upon enactment of the Act In a Federal Register notice dated March 1L 1991 (56 FR 11101). In addition, EPA Is authorized to promulgate the designation of new areas as nonattainment for PM-b pursuant to section 107(d)(3) of the Act on the basis - of air quality data, pienth g sad control consideratIons, or any other air quality- related consideration that the AdmInIstrator deems ap rtate. Based upon available InformatIon, EPA has notified the governors of those States with areas which recorded violations of the PM-b NAAQS on or after January 1. ieee and In.Ih.tad that EPA believes these areas should be r.d. tgii ted as nonattalnment. After notIfication, the governor of each affected State must submit to EPA the designation which he or she considers appropriate for each area in question wIthin 120 days. For adininiufratlve efficiency reasons, EPA requested the States to submit the designations by March 15, 1991 (the date the lists of designations for all ozone and carbon monoxide areas are due from the governor of each State pursuant to section 107(d)(4)(A) of the Act). No later than 120 days after the States response, If any, EPA must promulgate those redesignations which EPA deems necessary and appropriate. The EPA Is by today’s notice announcing that EPA believes available air quality information indicates that 18 areas should be redesignated as nonattainment for PM-rn and that EPA has so notified the governors of the affected States. A list of the 16 areas is provided below in table L As discussed above, after consideration of the State’s submittal., if any. EPA will promulgate the designations which EPA deems appropriate and necessary. Pursuant to section 189(a)(2)(B) of the Act, States must submit PM—b SIP’s for these areas to EPA withIn 18 months after EPA promulgates the nonattainment designation. Background for SO. Following the Clean Air Act Amendments of 1977, EPA published areas Identified by the States as nonattaninznent. attainment, or unclassifiable. Any area designated u not attaining the primary or secondary SO. NAAQS as of the date of enactment of the 1900 Amendments was designated nonattalnment for SO. by operation of law upon enactment, pursuant to section 107(d)(l)(C)(i) of the Act. The EPA will formally codify these designations in 40 CFRpart eiwhenEPAcod lflesthe designations for other pollutants. In addition, as described above. EPA Is authorized to promulgate the designation of new areas (or portions thereof) as nonattalnnient for SO ., pursuant to section bO7(d)(3) of the Act, on the basis of air quality data, pLanith g and control conslderatione. or any other air quality-related consideration the AaIIhlI.trstor deems appropriate. Based upon available Information, EPA has notified the governors of the affected States that EPA believes certain areas should be designated as nonat’ ”e”t for SO.. After notification, the governor • of each affected State must submit to EPA the designation he or she considers appropriate for each area In question wfthln 120 days. For the reasons described above. the EPA requested the States to submit the designations by March 19.1091. No later than 120 days after the State’s response, If any, EPA must promulgate those redeuignatlons EPA deems necessary and appropriate. As mentioned above, for administrative efficiency reasons, those SO. areas designated nonattainment by operation of law upon enactment of the Act will be formally codified In 40 CFR part 81 when EPA codifies the designations for other pollutants. The EPA I. by today’s notice announcing that EPA has notified the governors of affected States that EPA belIeves 13 areas, listed in table II of this notice. should be designated nonattainment for Pursuant to section 191(b) of the Act. States must submit SIP’s by May 15, 1992 for those SO, areas which are designa ted nonattalment by operation of law for the primary SO, NAAQS and which lack a fully-approved SIP. For those SO. areas designated nonattalnment after enactment, States must submit SIPs to EPA within 18 months after promulgation of the nonattairuneni designation, pursuant to section 191(a) of the Act. Background for Lead In 1978, when EPA promulgated the lead NAAQS, It was not authorlze4 to designate areas nonattalnment, attainment, or unclassifiable. Under section b07(d)(5) of the Act, EPA ii now authorized to require States to designate areas (or portions thereof) as nonattainment. attelnm.nt, or unclassifiable for lead. Sections i (d)(1) and (d)(5) of the Act permit EPA to require Statestosubmitlead - designations in a timefrsme that EPA. deems reasonable, but no sooner than 120 days after date of notification nor later than lyearafterthe date of notification. For the reasons described above, the EPA requested the States to submit the designations by March 15, 1991. The EPA must then promulgate these designations no later than 1 year after notifying the State of the requirement to submit designations of certain areas, but first notifying the affected State of any modifications EPA deems necessary and appropriate to the State’s submittal. By todays notice, EPA Is annoImr 4 rg that It has notified the governors of affected States that they should proceed to designate as nonattainment those areas that have recorded violations of the lead NAAQ9. In addition. EPA has requested the governors to designate as unclassifiable those areu that contain stationary lead sources which EPA believe, to be capable of violating the lead NAAQS, but for which existing air quality data are Insufficient to designate as at lnmPnt or nonattalnmenL A list of those areas EPA believes should be designated to nonattainment and unclassifiable for lead Is provided In table UI below. Any State containing an area that Is ultimately designated as nonattainment for lead must submit a SIP to EPA within 18 months of the promulgation of the nonattainment designation, pursuant t section 191(a) of the Act. ------- - - . ieo sr 4 , 1 ° R( 0’ ‘g ¶ , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Nu1 Office of Air Quality Planning and Standards ______ Research Triangle Park. North Carolina 27711 q 1 NOV 4 ggi MEMORANDUM SUBJECT: Questions and Answers (Q&A’s) for Particulate Matter (PM—b), Sulfur Dioxide (SO 2 ), and Lead (Pb, FROM: Joseph W. Paisie, Acting Chief LA). rb S0 2 /Particulate Matter Progr r ch, AQI1D (MD—15) TO: Chief, Air Branch Regions I—X Attached, you will find the second set of Q&A’s for PM-ic nonattainment plans. The questions are numbered 9 through 22 and follow the first set which was sent to you on August 20, 1991. The responses, which were developed with the PM—lO contacts, have been reviewed both in this office and in the Office of General Counsel. These Q&A’s serve as a supplement to the General Preamble for Title I of the. 1990 Clean Air- Act Amendments, which is currently undergoing review at OMB. The General Preamble, in turn, is based in part upon the Staff Work Products for SO,, PM—10, and Pb. In any instance where there may appear to be a discrepancy between the Q&A’s and the General Preamble, the Preamble and Title I of the Clean Air Act remains the authoritative policy and statutory- guidance, and the Q&A’s should be read in ways that support these documents. If you have any questions regarding th Q&A’s, please contact Gwen Jacobs at (FTS) 629—5295. Attachment cc: John Calcagni, AQMD Eric Ginsburg, AQMD Gwen Jacobs, AQXD Laura McXelvey, AQXD Tom Pace, AQMD Vickie Patton, OGC Joe Paisie, AQMD Andy Smith, AQMD Chris Stoneman, AQMD Lydia Weg nan, OAQF3 P14-10 Contacts, Regions I-X ------- PM—la Q&A’S SIP Processing and Sanctions Q: 9. What is EPA’S policy on partial approvals? Conditional approval ? Committal SIP’S? A: Partial approvals — The EPA will, after reviewing a submitted SIP, approve those elements of the plan that meet the requirements of the Act and disapprove those elements of the plan that fail to meet those requirements, in accordance with section 110(k)(3) of the revised Act. The SIP as a whole will not be treated as meeting the requirements of the Act until all the required elements of the plan are approved (section 110(k) (3)1. The EPA may apply sanctions after finding that an element of the plan has not been submitted or must be disapproved (section 110(m)]. Section 179 states that sanctions may be applied if a SIP deficiency has not been corrected within 18 months of the fipding of deficiency. Conditional approvals - ly approve SIP revisions that fail cnn ‘to meet all the requirements of the Act base Lte’s commitment to adopt and submit specific enforceable measures by a date certain, but no later than, 1 year (section 110(k)(4)J. If the condition is not met on schedule (the measure is not adopted and submitted within 1 year), then the conditional approval must be treated as a disapproval and the EPA may impose - sanctions at any time’ in accordance with seätion 110(m). Committal SIP’S — the Act, as amended in 1990, does not provide for pprova1 of committ L SIP’S other than conditional anDroval of SIP’S that include commitments to adopt specific enforceable measures within 1 year, as described above. Further guidance defining the application of partial and conditional approvals will be forthcoming from EPA. Q: 10. Can EPA approve a control strategy without approving - the full SIP? A: Yes, this may qualify for a partial aDnroval of the SIP since the control strategy is one portion of the requirements for a nonattaininent area SIP. However, ultimately EPA would have to determine the approvability of the entire plan. - 14 ------- PM—1O Q&A’s Enforceability Q: 11. What is the status of consent decrees/orders and memoranda of understanding under the Act? A: In the past, consent decrees and memoranda of understanding (MOUs) have been incorporated into SIP’S. The EPA intends to continue with this process for those agreements which meet EPA’S criteria for enforceability. Residential Wood Combustion (RWC Q: 12. How much emission reduction credit should be given to a mandatory curtailment program that in effect exempts EPA-certified, Phase II stoves due to a “no visible emissions” performance requirement? A: A mandatory curtailment program that allows wood stoves to operate during a 24-hour mandatory burn ban (provided no visible emissions are produced) in effect exempts stoves from the ban that are capable of meeting that performance requirement, including EPA-certified Phase II stoves. The Guidance Document for Residential Wood Combustion Emission Control Measures (450/2—89-015) recommends curtailment exemptions be kept to a minimum and limited to sole source and low income wood, burners and, only in certain situations, - to Phase prOgram exempts! P1iase:II stoves, explicitly or implicitly, then it does not satisfactorily address the “exemption” feature of Table 5-9 of the guidance document. Therefore, in the SIP the State should provide justification for the program’s emission reduction credit by documenting the number of stoves exempted and the resultant emissions that would occur during a burn ban • -EPA recommends the emission reduction credit be calculated as follows: Emissions during burn ban equals: (emissions of exempted conventional stoves) + (emissions of Phase II stoves) + (-emissions of existing conventional stoves that convert to Phase II stoves because of “no visible emissions” implicit exemption) * (the credit for conversion of conventional stoves to Phase II stoves) 15 ------- P11—10 Q&A’s credit calculation equals: 100 * (1 — (emissions during burn ban) / (baseline 24—hour emissions)] Q: 13. In calculating emissions credit for RWC controls, are States restricted to those credits and control measures listed in EPA’S Guidance Document for Residential Wood Combustion Emission Control Measures ? A: In September 1989, the EPA issued guidance for controlling wood smoke emissions from residential wood combustion (RWC) in a document entitled Guidance Document for Residential Wood Combustion Emission Control Measures (EPA-450/2—89— 015). The document was issued as a recommendation to State and local agencies developing wood smoke control programs and not to prevent such agencies from considering-other wood smoke control devices or measures not discussed in the document. However, it has been brought to EPA’s attention that, despite its purpose, the guidance has in some cases been construed as restrictive and exclusionary in nature. The purpose of this Q&A is to clarify EPA’S intent behind issuing this guidance. The nonexclusionary nature of the guidance document is embodied in EPA’S policy regarding RWC emission reduction credits as explained in ChaptérI.OTøf theguidance- Z. -.‘ document. To reiterate, the emission reduction credits recommended In Appendix F of the document are only suggested and should thus be considered starting points in assessing the effectiveness of RWC control programs and regulations. In their SIP’s, State and local agencies can request credit greater than that recommended in the document, as well as credit for measures not included in the document. Any application for credit in a State implementation plan (SIP) must be accompanied by a justification in the implementing agency’s specific program or regulaticn. All credit applications in SIP’S are, of course, subject to EPA review to ensure the credit level is justified. Q: 14. In a State implementation plan control strategy, can credit be requested for woodburning devices that are not certified to EPA’s new source performance standard emission limits? A: EPA will consider well—supported requests for credit for woodburning devices not listed in Table 3-1 and Appendix F of the Guidance Document for Residential Wood Combustion 16 ------- PM-b Q&A’s Control Measures (EPA 450/2—89-015). Merely because a wood— burning device is not EPA-certified does not mean it does not merit emission reduction credit and, hence, status as a device that burns more cleanly than a conventional wood stove. To obtain credit, however, proponents for such devices must provide justification for credit to be granted in the same manner as the devices currently listed in the guidance document (e.g., EPA—certified Phase II cordwood and pellet stoves), as described below. The suggested credits currently in the guidance document for the conversion of conventional wood stoves to EPA—certified catalytic, noncatalytic, and pellet stoves are based on field test data documenting the emissions reductions associated with the different advanced wood—burning technologies. Therefore, if SIP credit is sought for conversion to wood heaters not listed in the guidance document (including wood heaters determined to be—”not affected” by EPA’S wood heater new source performance standard definition (see 53 Federal Register February 26, 1988) and hence exempt), the request should be accompanied by a justification based on emission reductions documented through “in-home” field testing (versus laboratory testing). The EPA recommends that the field testing employ an emissions sampling and data-gathering technique that is reviewed by EPA prior to the start of testing. If EPA finds .that field test data ‘indicate a wood—burning device not currently listed in the guidance document is clean burning relative to conventional stoves and, therefore, warrants emission reduction credit, depending on its emissions performance, that stove may be afforded status similar to that of an EPA-certified stove with demonstrated emissions significantly lower than that of conventional stoves. That is, EPA will approve control strategies under SIP’S to the extent of demonstrated emission reduction credits for such devices. Other Issues Q: 15. What is the status of the Rural Fugitive Dust policy? A: As explained below, EPA believes that section 188(f) of the amended Clean Air Act provides a statutory alternative to EPA’S Rural Fugitive Dust Policy. EPA issued the “Rural Fugitive Dust Policy” when TSP was the indicator for particulate matter. Specifically, two 1977 memoranda constitute what has been called EPA’S “Rural 17 - ------- P14-10 Q&A’S Fugitive Dust Policy.” These memoranda set forth treatment of areas identified as “Rural Fugitive Dust Areas” for the purpose of determining TSP attainment/nonattairunent status as well as SIP development and new source review (see, e.g., 52 FR 24716 (July 1, 1987) (historical discussion)]. When EPA revised the particulate matter NAAQS in July 1987, changing the indicator to P14—10, EPA examined the Rural Fugitive Dust Policy and proposed a number of alternative policies. EPA indicated that the existing policy would remain in effect until EPA adopted a final policy (see 52 FR 24716 (July 1, 1987)]. Since then, the 1990 Amendments to the Clean Air Act were signed into law. The Amendments provide that upon enactment certain P14-10 areas were designated nonattainment for P14-10 and classified as moderate by operation of law (see sections 107(d)(4)(B) and 188(a)]. The amended Act also-provides a waiver provision which authorizes EPA, among other-- things, to waive the attainment date for a moderate PM-3M nonattainment area where EPA determines that nonanthropogenic sources of P14-10 contribute significantly to a violation of the P14-10 NAAQS in the area (see generally page 16 of the P14-10 Moderate Area SIP Guidance (April 2, 1991)]. However, EPA may waive the attainment date only for those moderate areas which fully implement their moderate area SIP requirements (see H.R. Rep. No. 490, 101st Cong., 2d Sess. 265 (1990)]. ThUS, by November 15, 1991 any initial moderate nonattainment area qualifying for the waiver would still have to submit, for example, a SIP revision containing RA M (including RACT) and a demonstration that the area will or will not attain by December 31, 1994 (see section 189(a)]. Generally, EPA believes that in providing explicit authority governing the treatment of P14—10 nonattainment areas having significant contributions from nonanthropogenic sources, Congress has provided a statutory alternative to EPA’S Rural Fugitive Dust Policy. EPA intends to provide additional • guidance on how it will interpret and implement section 188(f) later this year. In the meantime, in accordance with the new law, areas designated nonattainment for PM—b, including former Rural Fugitive Dust Areas, should proceed with .SIP development. Q: 16. What is the international transport policy under section 1798 and how will we implement it? A: Section 1798 of the amended Act authorizes EPA to approve a moderate nonattainment area SIP if the SIP meets all 18 ------- PM-b Q&A’s applicable requirements under the Act other than the requirement to demonstrate attainment by the applicable attainment date. An area may qualify for treatment under this provision if the State establishes to the satisfaction of EPA that the SIP would be adequate to attain the PM-b NAAQS in the area by the applicable attainment date but for emissions emanating from outside the United States. Therefore, at a minimum, the State must implement controls sufficient to attain the NAAQS when foreign emissions are discounted. Accordingly, a demonstration consistent with Attachment 5 of the Staff Work Product is required which shows, to EPA’S satisfaction, that the area would attain by the applicable attainment date if it were not for pollutants emanating from outside the United States. However, since the public continues to be exposed to unhealthful levels of air pollution, additional controls should be implemented to reduce such exposures to the extent that controls are reasonable. In demonstrating that an area qualifies for treatment under section 179B, states must be consistent with Attachment 5 of the PM—b Staff Work Product. In addition, in all cases the SIP still must require RACM (including RACT) for sources within the United States (see section 189(a)(l) (C) and PM— 10 Moderate Area SIP Guidance: Final Staff Work Product (April 2, 1991)]. . . Q: 17. What components will be required in the November 15, 1991 SIP submittal (PM—b plan provisions and general plan provisions)? A: Each plan submitted by the State for a moderate PM—b nonattainment area must be adopted by the State after a reasonable notice and public hearing. Each plan must meet the general SIP requirements of section 110, the provisions applicable to nonattainment areas set forth in Part D, Subpart 1 and the more specific PM-1O requirements in Subpart 4. The specific requirements of Subpart 4 supersede the more general requirements of the Act where there are inconsistencies. SIP’S should also clearly indicate whether attainment by December 31, 1994 is practicable as EPA has discretionary authority under section l88(b)(l) to reclassify areas to serious at any time if it is determined that the area cannot attain by this date. All SIP’S must also meet the applicable regulatory requirements set forth in 40 CFR Part 51 except to the extent that those requirements are inconsistent with the amended Act. The 1990 Amendments include a General Savings 19 ------- PM—b Q&A’s Clause (section 193] which provides that regulations, policy, and guidance in effect before enactment of the Amendments shall remain in effect. The preexisting provisions relevant to PM—b were developed to implement section 110 requirements for TSP and were later made applicable to PM-l0. Thus, the Savings Clause preserves these provisions, which are not inconsistent with the 1990 Clean Air Act Amendments. Guidance on interpreting preexisting Part D requirements for TSP as they now apply to PM-la is contained in the Staff Work Product. The P11-10 SIP checklist is being revised for use in reviewing the SIP’S which are due by November 15, 1991. Q: 18. What is required for an area to be reclassified as serious? - A: Moderate areas can be reclassified as serious under two conditions. First, if the State submits a SIP that demonstrates an area cannot attain the standards by the applicable attainment date after implementing RAc M (including RACT), then EPA can reclassify the area to serious. Second, if an area fails to attain by the applicable attainment date, the EPA must reclassify the area as serious. Final decisions on reclassificationsàf initial nonattainment areas will be based on reviews of the SIPS that are due on November 15, 1991. If an area proposed for reclassification fails to submit a SIP which demonstrates attainment by 1994, EPA will reclassify the area based upon criteria identified in its Notice of Proposed Rulemaking on reclassifications. Q: 19. Can EPA dictate, under section 179(d), specific control measures for an area that fails to attain the standards - by the applicable date? . A: The consequences of a P11—10 moderate nonattainment area J failing to attain are specified in Subpart 4, section 188(b) which supersedes the more general sanctions provisions of section 179(d). Section 188(b)(2) provides that when the Administrator finds that a Moderate area has not attained by the applicable date, the area will be reclassified as Serious by operation of law. The SIP requirements for PM—b Serious nonattainment areas are specified in section 189. S 20 ------- PM—lO Q&A’s Q: 20. What are States expected to provide in support of determinations as to whether specific control measures constitute RA M for a nonattainment area? A: The criteria for judging whether or not a control measure is reasonably available for an area are addressed on pages 6—8 of P11—10 Moderate Area SIP Guidance (April 2, 1991). First, the sources that significantly impact P11-10 concentrations in the area must be identified. It may be unreasonable to spend the resources necessary to control sources whose em ons are de ainimis (i.e., insignificant). Second, the s - echnically feasible measures available to control the s of sources that are significant in the area should be evaluated. The technical feasibility of control measures may vary with the location of the source. For example, wet suppression may not be a measure that is technically feasible for controlling fugitive dust in locations where water carce. Third, the economic feasibility-of using the St echnically feasible control measures must be eva ed. The capital costs, annualized costs, and cost effectiveness of an emission reduction technology should be considered in determining its economic feasibility. Procedures for determining these costs are described in the OAOPS Control Cost Manual. Fourth Edition , EPA-450/3—90—006, January 1990. Q: 21.’ What RA I/RACT ‘guidance will be applicable to future - nonattainment areas? A: The guidance on determining RACX/RACT in the P11-10 Moderate Area SIP Guidance: Final Staff Work Product is applicable to both initial and new or future Moderate nonattainment areas. When published, the General Preamble will supersede the Staff Work Product. Q: 22. Can an area classified as serious be reclassified as moderate? A: No; while there is no explicit mention in the CAA of reclassifying a Serious P11—10 area to Moderate, such reclassification would be inconsistent with the statutory scheme underlying the nonattainment designation, reclassification, planning, and implementation requirements (see section 107(d)(3)(F)]. The Moderate and Serious classifications of PM—iC nonattainment areas are not directly linked to P11-10 air quality levels in the area but rather to whether attainment can practicably be achieved by statutory deadlines. All P11—10 nonattainment areas are 21 ------- PM—b Q&A’s initially classified as Moderate. Moderate areas will, generally, be reclassified as Serious areas only after the EPA finds that the area can not (based on a SIP control strategy demonstration) or has not attained the standards by the applicable attainment date. The Serious area must then meet all the SIP requirements specified in section 189. These requirements include adopting and implementing best available control measures (BACN) and making long—range plans to attain the standards within 10 years of the original designation as nonattainment. 22 ------- 58656 Federal Register / Vol. 56. No. Z25 I Thursday. November 21. 1991 / Proposed Rules airplanes in France. The airplanes are manufactured in France and are type certificated for operation In the United States. Pursuant to a bilateral airworthiness agreement. the OGAC has kept the FAA totally Informed of the above situation. The FAA has examined the findings of the DGAC. reviewed all available information, and determined that AD action Is necessary for products of this type design that are certificated for operation In the United States. Since this condition could exist or develop in other SOCATA Creupe AEROSPATIALE Moran. Saulnier MSI9O series and Rallye 235 series airplanes of the same type design. the proposed AD would require repetitive dye penetrant Inspections of the nose wheel axle for cracks, replacement of the nose wheel axle if found cracked. and replacement of the nose wheel axle attaching screws. The actions would be accomplished In accordance with the instructions In SOCATA Groupe AEROSPATIALE SB No. 150. dated June 1991. It is estimated that 72 airplanes In the U.S. registry would be affected by the proposed AD. that It would take approximately 2 hours per airplane to accomplish the proposed action, and that the average labor rate Is approximately $55 an hour. Parts cost approximately $16 per airplane. Based on these figures. the total cost Impact of the proposed AD on US. operators Is estimated to be $9,072. The regulations proposed herein would 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 Therefore. in accordance with Executive Order 12612, liii determined that this proposal would not have sufficient federalism Implication. to wanant the preparation of a Federalism Assessment. For the reasons discussed above. I certify that this action (1) Ii noti ‘ ma jar rule” under Executive Order 12201; (2) Is not a “significant rule”-under DOT - - Regulatory Policies and Procedures (44 FR 11034. February 39,1979); and (3) If promulgated. will not haves algrIfiennt economic Impact positive or negative. - or a substantial number of small entities underthe criteria of the Regulatory FlexibilityAct.Acopyof ft. . regulatory evaluation prepared for thb action has been placed In the Rules Docket A copy of It may be obtained by meetacting the Rules Docket at the -lacatlon provided under the caption ancasssas”. - List of Subjects In 14 CFR Part 39 Air transportation. Aircraft. Aviation safety. Safety. The Proposed Amendment Accordingly. pursurant to the authority delegated tome by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 of the Federal Aviation Regulations as follow.: PART 39—f AMENDED] 1. The authority citation for part 39 continues to read as follows: AuthorIty: 49 U.S.C. 13 54(a). 1421 and 1423 49 U.S.C. 106(g); and 14 aR uja. f 39.13— (Am&4sd ) 2. Section 39.13 Is amended by adding the following new AD: SOCATA GROUPS A OSPATIAL& Docket No. 91-CE-el-AD. Applicability Morane Saulnier Models MSIS2A I5 O. MSIS2EI5O, MSOO3A. M MSO94A. and MSIO4E airplanes (all serial numbers): and Rally. Models 235C and 2155 airplanee (all serial number.), certificated In any category. Compliance: Required Initially upon the accumulation of 500 boors tinr. .In..ervtce (TIS) or within the next 50 hours TIS after the effective date of this AD. whlthever occurs later. and thereafter as Indicated. unless already accomplished. To p.v. ..t no.. wheel a,de fatigue failure. accomplish the foUowta - (a) Dye penetrant Inspect the nose wheel axis auemb y far cracks In accordance with the Instructions In DESCRIPIION (1) Of SOCATA Croupe AEROSPAIIALE Servtc : Bulletin No .150.datedJuns199L -- (1) If cracks aM found, prior to further - (light, replace (he nose wheel axle assembly hi .ccardançh wlth the applicable maInM I .Iw 4 i..iii ..I . return the airplane to service, sad relaspect at Interval, not to exceed 500 hour, rn. (2) If no crack are found. return the airplane to service and reinspect at Intervals net exceed 500 boors rn (b) At every 4th repetItive Inspection Interval (2,000 bourn uS) ,iandatdd b pare sphs (aJ(1) and (sf2) of this AD. c . k replace the nose wheel axle . ttathlng screws Instead of reinstalling the existing screws U spdfledictheinassnd. . ’ DES IP11ON: ., .. , , (2) Of SOCATA Croupe L1 EROSPATZALE SB No, 50. dated June 1591. - (c) $dCIal flight peithlts rnq’be Ii d In accordance wttbFAR2LIS7and 21.199 to’- ’ operate the airplane to location Irher. the requirements ef this AD em be , .. ‘. . : axcp l I b ed. , r (d) An lteraadve method of compliance or adjustment of the con ipllince times that ,.. pinvidexan equivalent level of safety. may..’. beapprovedbytheManager.Brusse ls : Aircraft Certification Office. FAA r Eâope. AMce. and Middle East Office. c/&Am rIdan Embassy, B-bOO bieseels, Belgium. The’ rc request should be forwarded through an eppropriate FAA Maintenance Inspector. who may add comments and then send It to the Manager, Brussels Aircraft Certification Office. (e) Copies of the service Information that is applicable to this AD may be obtained from SOCATA Croupe AEROSPATIALE. Socata Product Support. A .u 1 uit Tarbes.Osium- Lourdes, B P900. 05009 Tarbes Cedex. Francs, or maybe inspected at the FAA. Central Region. Office of the Assistant Chief CounseL Room 1558001 K 12th Street. Kansas City. Missouri. Issued In ans , City. Missouri. on November 12,1901. - BairyDOements, Mamoger. Small Aàp!ane Directorate. AirczvftCert:ficalionServke. - (FR Dos, 91-20014 Filed 11-20-It &45 aini ceiso coos .i a - ENVIRONMENTAL PROTECTION AGENCY - 40 CFR Part 81. IAD-FRL-4032—7) Recla.uiflcalion of Moderate PM-b Nonattainment Arias to SerlousAreas AQøiC Environmental Protection Agency (EPA). . . — AcnOi Notice of proposed rulemaking . auMer liv: Sev ral areas meeting the - qualifications of section 107(d)(4)(B) of the Clean Air Act (Act) were designated nonattabirsent for PM-b (particulate mitter nctininally10microns or smaller In diameter) by operation of law upon enac ent of the Clean AirAct ‘ Amendments of 1990. All of these areas were also Initially classified as moderate nonattainmant areas by operatlon’of law at the time of designation In accordance with section 188(a)oftheAct Section 188(b)(1) of the Act require. the Administrator to reclassify any area he afthlñ the PM-b national ambient air quality standards (NAAQS) by the approprla â Iim g date. Section 1a8(b)(1)(A) - requires early rer laaaificatIon.of.. approprIat, areas desIgn ited I ‘. nonattalnmènt tor.PM-iOby óperatlon oflaw.TodyKIspróji Oslugto - - , reclassify 14 of !hâJnhtIaI moderate PM- 10 nonattalnnient areas as serious areas, The EPA Is also soliciting comments today on several queitiona that are raised by section 188(f) of tl e Act. Section 188(f) allow. the Administrator to waive requirements !or certain aas whèie he determines that (1) anthiopogenlc sources of PM—b do not contribute significantly, or (2) ------- Federal Register / Vol. 56. No. 225 / Thursday, November 21. 1991 I P , sed Rules 58657 nonanthropogenic sources contribute significantly to the violation of the PM— 10 standard In the area. Those questions are raised in section VI of this notice. DATES: Written comments on this notice must be received by December 23.1991 at the address below. ADDRESSES: Written comments on this action should be addressed to Kenneth R. Woodard, Air Quality Management Division, Mall Drop 15, Office of Air Quality Planning and Standards. U.S. Environmental Protection Agency, Research Triangle Park. North Carolina 27711. The technical reports referenced In today’s notice can be found in Public Docket No. A-O1-63. The docket Is located at the U.S. EPA Air Docket. room M—1500, Waterside Mall, LE—131, 401 M Street. SW., Washington. DC 20460. The docket may be Inspected from 8.30 a.m. to 12 noon and from 1:30 p.m. to 330 p.m. on weekday., and a reasonable fee may be charged for copying. FOR FURThER INFORMATION CONTACT: Kenneth R. Woodard. Air Quality Management Division. Mail Drop 15, Office of Air Quality Planning and Standards, U.S. Environmental.- Protection Agency, Research Thangle Park. North Carolina 27711, (919) 541- 5897, FF5 029-5697. •SUPFtEMBITARY INFORMATIOIC Lflackgiuund £ - - On the date âf enactment of the Clean - Air Act Amèndmentsof 1990 (November 15. 1990)..PM-1O areas meeting the.t..... qualifications of section 107(d)(4)(B) of the Act were designated nonattainment by operation of law (see generally, 42 U.S.C. section 7407(d)(4)(B) of the Act). These areas Included all former Group I areas identified In 52 FR 29383 (August 7,1987) and clarified In 55 FR 45759 (October31. 1990), and any other areas violating the PM—la standards prior to January 1, 1989.(many of these areas were Identified by footnote 4 In the .,‘ October 31,1990 Federal Register notice).AF.demlRegisternotice announcing all of lb roan _____‘ted nonattainment for PM-lOat.enaciment. -and classified asmoderate was- . ‘published in 50 PR 11101 (March15, 1991). A follow-up notice correcting - some of these dreas wái published.. August 5, 1991 (50 FR 37654). All other areas not designated nonattabiment at enactment were il eign&ted - unclassifiable (se section -‘ 107*d)(4) (S)LiIl) qfthe Act). - Once al area r deslgnated nattainrnent iedtion 188 of the Act (4Z U.S.C. aectionl5l3 ) outhnee the process for classification of the area and establishes the area’s attainment date. In accordance with section 188(a), at the time of designation, all PM—b nonattainment areas are Initially classified as moderate by operation of - law. - A moderate area can subsequently be reclassified as serious either before the applicable moderate area attainment date if at any time EPAdetermines the area cannot “practicably” attain the PM-b NAAQS by this attainment date, or following the passage of the applicable moderate area attainment date if EPA determines the area has failed to attain (see sectIon 188(b)).’ In accordance with section 188(b)(1)(A). EPA must now propose to reclassify those areas which were designated nonattainment on the date of enactment by operation of law, where EPA determines that the area cannot “practicably” attain the NAAQS by December 31, 1994. The EPA also has discretionary authority under section 188(b)(1) to reclassify any of these areas as serious after December 31. 1991 (e.q.. after reviewing the State’s PM—b SIP). If EPA determines they cannot practicably attain the PM-la NAAQS by December el. 1994. The EPA may exercise this discretion where, for example, EPA may exercise thi. discretion where, for example, EPA originally believed an area could attain the standards by December 31,1994. but later determines that it cannot attain by that date. For. example, EPA may find that ad area cannot practicably attain by December 31.1994. after reviewing the November 15, 1991.SIP submittal for an area or ‘4 ________ - /. ‘Undue the pWn I.ning of the t.en of esedon i8 5(b) fl ‘A bs unee.IdIsoredon in re Iuutfy at say date before the appiloable .“.‘—dstssa eras AdstuemInus cszent pesctL ..bly attain tin slendsedi by seth date. A udbgly. section 1el(bXl) Is. general J . . . of dalqated (A) and (B) of section 1IN(bfll) mandate tbat ’A reduslfyat specified dateframe. ( La. by December foe the initIal 13 1-10 - . -sad within Is — ‘..‘ - after the State I J—’ Um Plan (SIP) milattittal due da - • Iater .des* atad PM-re 5 tt 1 — 7 . areas It deimattaseappeuprlate for redsasiftontion at these dates. These siubpar. spbs de not usetite the general authority but aimply spsd that dt d ” — ft J at autein time This faiths ,, the oueaiddiai . .of . upon the failure of a State to submit a SIP for an area. For areas designated nonattainment and classified as moderate subsequent to the date of enactment, EPA must reclassify appropriate areas as serious - within 18 months of the required submittal date for the moderate area SIP (see section 188(b)(1)(B)j. Taken together with be statutory requirement that these SIPs be submItted 18 months after being designated nonattainment, the statute thus requires that EPA reclassify appropriate moderate area. an serious withIn 3 years of the nonattainment designation. Finally, in those cases where EPA determines that an area has failed to attain the NAAQS by the applicable attainment date, the area Is reclassified as serious by operation of law (see section 188(b)). The EPA must publish a notice In the federal Register of such determinations and consequent .reclaselficafions wIthin 5 months - following the applicable attaInment date. IL Determining an Area Casiwie Practicably Attain Generally. EPA will rely on - information such as the control strategy. the compliance schedule, and - attainment demonstration submitted by the State In the SIP for a moderate PM- 10 nonattalnmpnt area to determine whether it Is practicable to attain the NAAQS in that area by the applicable attainment date. The SIP revisions ate, - due Novem)rer 15.1991. for the Initial - moderate PM—iD nonattnimn .t ireas designated by operation of lars. The SIP must include a control strategy that requires the use of reasonably available control measures (RACM), induding reasonably available control lachnology (RACF) (see sections 189(a)(1)(c) and - l72(c)(1)J. The State must also demonstrate that the SIP provides for timely Implementation of RAQI lad RACT and attainmentof the NAAQS. The RAQ4/RACT must be Implemented ln the InItlal,PM.1Ononatta1nm° taeas by December10, 1995, and the j - must attain the, standaed&byDecembe 21.1994 (see uliona188(c)(1)iid , l89(a)(1)(C)J..’ - There aeit least three reason . iby anarei may not pmct1lab lttah the -, standards by the applicable ttnfi1in ’it date. Thst, iniplientatIor ofR CM/ . RACI’ may not delta sufficletit: - emission reduótions to bring thiarea Into attnIrnn. nL Second. -. nonanthropogenlc,sources i hith cannot reasánably be controlled may contribute signlflcantlyio the violation of the PM— 10 NAAQS in the area (see section the sines, I. that e ’-ail t ’ -tIon woild sepedits. iin sppticatIon of adthtiooalaonlnd mu. b th. .Itua(Ionwbsre A ftnda . alter the mandated , tsd.astflcetioa uulemskh,g end btfota the. appliceble sI t .’ .’— ’ date, that ansen b. pract lc.bly attain the ataithrdi .Thha. in bra, ‘. would expedite ultimate attainment o thePM l0: - - standards. leawommy. et ’A belle,.. it lea reasonable interpretatIon and conaleteat with the plain language .1 the statute to consime section c .i1e(bfli) such that it authorize. EPA to -zedaaslfy an arue. as appropriate. .tsay time before the. appinable attainment date and o,guidates that at a - minimum, EPA mute I l. inqubypt specified liens. ------- 58658 Federal Register I VoL SOw Ne. 225 / Thursday, November 21. 1991 / Proposed Rules 188(f)]. Third, the area may be significantly impacted by PM—b emissions emanating from outside the United States. In such a case, the State may qualify for treatment under section l79SoftheAcL . If the SIP demonstrates that an area cannot practicably attain the standards because RACM/RACT do not achieve sufficient emission reductions in a timely mfinn , then EPA will propose to reclassify the area as a serious area. The EPA has construed RACM. including RACT. to be those emission reduction methods that aie technologically and economically feasible for application to existing PM— 10 sources In the nonattainnient area In light of the attainment needs of that area. The burden Is on the State to demonstrate that an available control method for an existing source is infeasible or otherwise unreasonable and, therefore, would not constitute RACM (or RACT ).’ Therefore. the SIP should require Implementation of all available emission reduction methods that have not been demonstrated to be unreasonable. The State will have. shown that an initial PM-b . nonsttalnment area cannot practicably attain the NAAQS by theappllcable attainment date if It demonstrates that a SIP requiring implementation of all RACM (including RACIJ by December 10,1993, will not achieve sufficient emlsâlon reductions to attain the standards by December 31. 1994. In this case, It may be appropriate forthe State to modify the S W tabe submitted h November 1991.to recon 4 ile differences between RACT and requlremen(zTd1 best available control technology Y (BACI ’ ) In aertáus areas, as discussed below in section N.. - If the SIP demonstrates that RAG).!! RACI’ would attain the standards if It. were not for a significant contribution from nonanthropogenic sources or PM! 10 emIssions emanating fromoutside the United States, then special provtslbna of the Act apply. SectIon 188(f) allows the Administrator to walvosolne requirements for cp’4nh areas tinpactea by nonanthropogenic sources. aiid: section 179B allows EPA to approve .. SIP’s and not reclassify aas•tl at’ . cannot attain the standards because of emissions emanAting from outside the thilted’State,.TheEPA’spolidda for’ ,b fmp1 ”enthig these p lsionàOithe ‘ Act are discussed In ectlon VI ath VU of this notice ’ .’ ,1,IU J. .11 c, ?r(L ,. i’ • r r ‘See PM-io Msds ts Area SIP CuIda co.P1s I SiaffWoiS Pru4u ’ s me eandi n from IoI n Cs4 iL e r. AJrQua it Management DIVtame. A OMstoa Dom AinOL •‘ . , lbs . s aunt eel ssdlml O(b)( .bsst.vs lIabls omirel me tss ib. .dy .prsvM.. th.i th.ee ,. ,.t_beesilta ad eaIetb.: av ttsd ladiebMsèr.t.Arom .. . i ii . -.lbm ltth.rr””- - ,-.. PWlher..s iplIndyst.tad.th.obli stcs .sb.Ii setoussrs. pIsa ..q k 1. I. In - “ ‘ seed does notobetsis the It si cb’t . .’ .i . submit - specifying that areas with design values forGO In excess of ap prwdmate ly 83.: percent or more thavg he NAAQS siiouldbedaulfleri eas e rlour . . Severalcana lderat lOh siedEPAto select aointmmedlate crltedrni.of; deslnvahrer.5 mr termmuabove the P14-10 NA*QSfiwreclasslflcathms as selois reopqFfrst.a1thooghPM-lO nonaualninén*b,generally caused by. numerous and’diverse categories of emssio sour e ,aei er the number of ..!o rie :noe,a et of c t i j geatasdn4he case of ozone.-..’- Cnusequantiy EPA believes that air quality concenfratious can more readily Reclassification of an area as serious 188(b)(1)(A), EPA must propose this does not obviate the legal requirement action before the SIP revisions for the to submit a moderate area SIP. Alas. a areas subject to reclassification are due. State should be penalized if the The specified tlmeframe for final action attainment date for a moderate ares is on this rulemaking and the timeframe missed because the State fails to adopt specified fo an analogoue-mil .msk 4 rig and Implinent control measures as for areas subsequently redesignated expeditiously as practicable. Therefore. rwnattajnment for P14-10, suggests that if any Stats fails to submit a SIP by Congress envisioned that In ultimately November15. 1991. for an Initial determining which areas cannot moderate P14-10 nonattainment area, practicably attain the P14-10 standards including the areas EPA proposes to by the applicable attelnmnnt date and reclassify today. EPA plans to are appropriate for reclassIfication. EPA immediately notify the Governor of its would also rely on the SIP revisions- Intent to impose sanctions under submitted for these areas. Thus. while sections 118(m) and 179 of the Act or EPA believes the Indicators fee adopt a Federal implementation plan assessing an areas ability, or inability. (PIP) under section 118(c) of the Act, to attain are reasonable, they are Once imposed, the sanctions will not be rebuttable on a case-by-case basis. - removed until the State has satisfied all Further, it Is difficult to generalize for the applicable planning requirements. PM—l0. given widely disparate sources Further, EPA may reclassify moderate of PM—b emissions, the availability and areas for which a SIP has not been feasibility of control measures. etc. submitted whenever It becomes Accordingly, during tbe comment period apparent. perhaps because of the delay on this notice. States submitting timely In submitting a SIP, that the area cannot SIP revisions demonstrating that an ares practicably attain the standards by the identified in today& notice can - - - end Of 1994. .. practicably attain the standardsby the rn p nc - applicable attainment date will not be reclassifled’in EPA’s final action on this Since EPA must propose to reclassify rulemaking despite the fact that an area the appropriate Initial P1440 - meets the objective criteria Identified by nonattalnment areas before the EPA. Conversely, if EPA zecet es a SIP moderate area SIP’. are required to be revision for an area not identified In - submitted, It I. necessary to today’s notice hpIb ting that the area information other than the S 1P’. to Judge practicably attain the staidards whetheror not It Is prectlcable’for each by December 31.1994. then PA will , of the initial areas to attain by propose to reclassify the areabas , December 31. 1994. The EPA has - - notice. - , propo.edto reclassify appropriate areas . - i . EPA l basedone,dstfng air quality data for - .. ‘‘aemfi of die pre oie. .fE set bj these areas; These.bjecdve fteth ale tire statute ice ozone and carbon rebuttable IndiCators of an area’s ability, ____ or Inability, tónttaln the P14-10 monoxIde (CO) nonattnbma t areas standards b becember i. and the magnitude of PM-I l ) Therefore.today’s . osa1 in without concentrations experienced In the areas the beneflt,of an actual SIP during the 3 most recent rziI.n,Inr years. demonsirating a ñ demonstrating’ First. Congress specified In s on 181 aflalnmenL However; given the of the Act that areas wIth design values statutory deadline set out In section for ozone that are appm dinately 33 - _________ percent or more above the NAAQS _____________ - , — — , should be rlkssified as serious. severe. . ‘ ‘ img5as thL I l ._ sms - - or e ctreme ionattaIrrm ñ ux hs, while sib.’ thIe.. to nqu meeate isui te “‘I) ( - medsisisame iPreqeirmesuts esnalsierd wilbilie spplicable slatetolim desdllesa (see dienmeism later In this mdc. RAD4 and HAO& zequueersuls tat areas redusifled easerim4 ..,n - - - ------- -Federal Register VoL 56,-No.225 I Thursday. November 21, 1991 1,Propoaed Rules •58659 be reduced in most instances for PM—b moderate nonattainment areas than for ozone. It follows that the design value for reclassification of PM—b - nonattainment areas from moderate to serious should be higher than the ozone analogy. Second, although the nature and number of sources are less complex for PM—b than for ozone. PM—b sources are markedly more diverse than in the case of most CO nonattalnment situations, wherein violations can be attributed predominantly to mobile sources. Accordingly. PM—b moderate area emission reductions may not be as readily achieved as those for CO and, therefore, a PM—b design value lower than the CO analogy Is appropriate. These considerations have thus led EPA to select a design value of 58 percent above the PM-b NAAQS—. value that falls directly between those represented in Ike criteria adopted by Congress for ozone and CO—es one basis for - proposing to reclassify areas as serious. Next. EPA believes that multiple, expected exceedances of the standard are appropriate indicators of persistent air quality problems that RACMIRACT may not be adequate to correct. ir Ambient PM—b data for the three most recent calendar.years (1988-1990) In the Atmospheric Information Retrieval - System (AIRS) revealed only a small - group of the 70 InItial nonattainment areas that still measured PM—b, .... concentratlopa far above the 24-hour NAAQS and could be expected to exceed the sh niLiyd seve nl times e ’ch, year. Areas. 3 ie e hejvgenu!nber. .of expected exèeedances over 3 years to o or thore peryear have at least 3 measured exceedances over that same. period. Therefore EPA concluded that an expected exceèdance rate greater - than or equal toO per year would- • adequately dIstln gu1sh between areas with persistent air quality problems and. those with more transitory vlolqtlons. It - should be noted, however, thaf1he . - . sensitive, I.e., ni ging & s value up or downslightlydoeinotiigp lfivinUy - affect the areas that would be classified serious. The AIRS data were analyzed to determine the PM—b design concentrations for the areas with high - values during the 1986-1990 calendar years. The look-up table procedure explained in section 8.3.1 of the ‘PM-b SIP Development Guideline.” EPA-4501 2-86-001. June 1987, was followed. The average number of expected exceedances of the 24-hour standard for a year is explained in 40 CFR 50, Appendix I C. section 3. The EPA’s analysis identified 14 areas with design concentrations 58 percent or more above the standard (>W micrograms per cubic meter (JLg/m’)J and with 6 or more expected ‘ exceedances of the 24-hour standard per year. The 14 areas which meet the above criteria are listed In Table I along with - the design concentrations and numbers ci expected exceed”nces., Additional considerations also led EPA to conclude that the above criteria are reasonable. First, in several cases brought to EPA’. attention. States - attempting to develop control strategies using RACMIRACr for these areas had concluded that ft was not practicable to attain the 24-hour standard-by December31, 1994. Seilond, the annual mean PM-10 concentrations for 1988- 1990 exceeded the anniral NAAQS (50 pg/m9lnloofthel4areas. 5 In.severaJ areas, the annual lean was 20 to 80. percent overthe anImal NAAQS. A high annual ‘,‘ng tratiöfflIanothe1 iw ’ - Indlcatçr 1hat au 4rea experlincer J’ r persistently hlghPM- b0 Ievils ’rèther : than occulon l riofex - Because EPA4ntends to base Its final deternrlnatio,’on whether areas should be reeIn aeifl donItsrevlew f the SIP’. due Novemberl8.1991. thi. proposal is limited to those areas that appear most likely, on the basis of niolent air - quality Information, to have difficulty atinlethig the PM-b NAAQS by’- - December 31,1994 Therefore, EPA Is proposing to selfy the areas listed In -Table I as-serious, with the caveats — . •L1 •, discussed below. The EPA believes the criteria used to identify the areas In Table I area reasonable to use in meeting its obligation under section 188(b)(b)(A). However, the criteria are being used as surrogates for area- specific information that will eventually be provided in the SIP’ .. States can rebut EPA’s presumption that any of the areas proposed for reclassification cannot practicably attain the standards by the attainment date by submitting a SIP that provides for attainment by the end of 1994. In such cases, EPA will not take final action to reclassify the areas. The EPA requests comments on the choice of criteria used to Identify the areas that It proposes to reclassify. Areas EPA Does Not Expect to Refr . -,. Based on prelinthinly informatIói described in more detail below, at this time, EPA does not expect tq reclassify the four areas discussed below from Table 1 as serious even though they meet the above criteria. However, in today’s notice. EPA is proposing to reclassify these areas, in the event that EPA does not receive a SIP revision for these areas by the time EPA lakes final action on this notice which - substantiates this pretlmlraory Information. Similarly. f EPA receIves a SIP revision (otthese areas by thedme EPA takes final action on this notice which indicate, that the area c namt - .pracUcabl r attain the PM—b standards by Deoember3l.1994 , EPA leproposing 4oday.toTedaulfy these ózeasln the final rul m’anfrbrg action on this notice. Oglesby, IllInoIs—The EPA does not anticipate reclassifying the Ogleaby . nonattainmènt area. The area Is Impacted primarily by aithgle source of PM-1 a cement manufacturing pLant The State has submitted a disperulon- modeling demonstration that. tentatively shows emissions from the facility can be controlled with RACI’ toe level that will prevent future violations of the 24-hour NAAQS.’. ‘bin dedpev p00 ware based i ..IL data p..& .d In 19S5 -d The —h-- etc sen ’.tlooiuped In lbs lock-up table pn e Is the c -uIb ’-d wmb cIcbser vatlecs preduced muSs. is is, and lSSa.No alt juatments - wre f*p Isibtuda cr - __ . ;.. __ -.. _ ,. _ • —tr.tIoesaireitly being used far S’,%q development were .maraIly derived &on l i monitoring date collected liladler pears (Ia I S IS - or i ) end. therefore, n.y dIilà fro m those listed Tabh’I ’- J • .•J • ‘ d6u t sbk lare based only ilyams ti’ ambleni data -. .uets. A deli sat equfrus at heat ii sample days pee - quarter year to be complete. As poled In the table. -. nanycfthearssabadlorma rsyeaz sof t- Incompletadata.’ .. - ,.. -. - ‘Proposed PM-tO ernlssloã limits (cv the Portland - Cr I Manufacturing Plant and . -“ led quany - operations In ‘ -°-‘ e County flhloois. February... lam. - ,.— - ------- 8662 Federal Register / Vol. 56. No. 225 / Thursday. November 21. 1991 I Proposed Rules 4. What requirements, if any. applicable to serious areas should be waived. The EPA i . specifically soliciting public comment on appropriate answers to these questions. The EPA will consider any comments received before the close of the comment period on today’, proposal when developing its policy for implementing the waiver provision authorized under section 1 88(t). VII. ntern.fional Border Areas Section 818 of the 1990 Clean Act Amendments adds a new action 1799 to subpart I of part 0 of Title I of the Act. Section 1799 applies to areas that could VIII. Request for Comm ’ts. attain the relevant NAAQS by the The EPA requests comments on all attainment date but for emissions aspects of its proposal to reclassify the emanating from outside the United above areas as serious nonattainment States. For PM—b nonattainment areas, areas. For example. EPA requests section 1799 provides that EPA can comments on its choice of criteria for approve the moderate area SIP if the Identifying areas It proposes to State establishes that the SIP would be reclassify as serious including technical adequate to attain and maintain the information to substantiate or refute its PM— iD NAAQS by the attainment date basis for today’s proposed actjon. The but for emissions from outside the comment period which closes December United State.. and that the area 18 not to 23. 1991. will additionally allow EPA to be subject to the provisions of section consider the SIP revisions required to be 188(b)(2). Section 188(b)(2) provides that submitted for these areas by November any moderate PM—b nonattainment 15. 1991.The EPA I. also investigating area that Is not Ii attainment after the - the development of criteria and policy applicable littainment date shall be for granting waivers for certain areas uuitim cose silo-se-v - reclassified by operation of law as a under section 1880). Several questions - _____________________________ serious area. Therefore. Congress does were raised in section VI of this notice not want areas that could attain but for that must be answered’ In developing the emissions emanating from outside the waiver policy..Coiñments are requested United States to be dutomatically on those questions as well as the scope reclassified as serious after failing tO of such waIvers. - attain by the applicable date. In the same spirit, EPA does not believe Other Regulatory RequIrements 49 pp p . - -F Congress Intended for areas that the it. El ecu/i ye Orders ‘ F.d...I Motor States demonstrate could attain the UndCi Executive Order 12291. EPA standarda Denial of Petition for’. standards but for emissions emanating has determined that this proposed RUI.flmidl g - from outside the United States to be action is not ‘malor ’ because reclassified before the attainment date reclassification of the areas would not aoencv National Highway Traffic under section i88(b)(1J. . have an annual effect on the economy of Safety Administration (NHTSA). at least $100 million, would not cause a Department of Transportation (DOT). “As noted. section 179 5(d) Stain. thai areas major Increase In prices, and Would DOt acuo,c Denial of petition for -. demnnstr.tln attalnmetof the standseds bat for emluions emanath,g fro. outsid, the United st .t. , ‘have a significant adverse effect .. rin klng - . .-. .‘ . . , . . .haUno lbe s ub lectto ,ecU o n l s s(b)(2) ‘: ‘ ... -, , compet ltlonorthe’abi lityofUnlted (reclaniflcatlan for faflurs to attain). By sneer lo States eáterprlses to compete with- suu anv Thu noUce4enIes a petition 1 1th provisIon .ini ciqibing Oe.S of statntoiy - . foreign enterpriies This peoposal was by Dr.CarI C. ( lark of the Safety -. csnctlau. A will not Ir ’ 4fY bSfe.S thiS submitted to the Qua of Malagement Systems Company to amend the Head applicable 5 ft I& d.te areas which sea .‘ deinosisirste at’-’-- ’ of the standard. bat roe- . . end Budget (0MB) as required by ‘ ‘ - . Injury Crite4on hilt of Standard No. enlulonj esisnatbig t ia r a ts1de the United State. Exei utive Ordá (E.O.) 12291: Any --‘ - - 208, Occupam t Crash Protection. The ieee section 1*bJll) 1 . First. seCtlO 1705 evInces.’ written comments from 0MB and any -, petitioner st u hi to reduce the H ad ener.I com,,— - - Intent eat to pi areas.’ ___ written EPA tesponses to thope , , In juryCritezlqn limit from 1000 to 750. countiy a le the buttes caine of the P 14.10 ‘comments are included In the docket. - -. Alter iareful review. NIffSA has •tt.Inment Vwlbsr. tf A wine ‘- . This action does not contain any — “;‘ . determlmie’d that the petition failed to reduslfy .uch Sees. before the SPPIIc.bhi ‘ ‘ ..i ‘ -. . • ‘ - . provide.sufficlent justification to change anslnm,nt in affect would be reading - the àjrrent Head Injury Criterion lirnil section u 3 d) out of (be utanate. Specifically. If - construction onwisel against inlerpietlng the law - EPA prececdsdto ieclsu lfy before the applicable - such diet language Is rendered mere uurplusage. -. - i ’he petition’dld not present information attatcnun’t e those areas qualifying for treatment. Finally, note that section flnE(d) contains. cieasly nahIin into question the agency’s belief • under .rcnon 1795. so ale. would never be subject erroneoun reference to carbon monoxide Instead sit that the current Head Injury Criterion to the prov-á in section i7SB(d) which prohibits PM-ic. sod that this section ContaIns other Clear limit of 1000 is the most appropriate and EPA from rex1ess,fyie such situ site, the - . coors (see. ci.. section 1798(c) ref ,t! practicable level for minimizing the risk applicable stt.. .nsnt data. Canons of statutory ‘ 1a5 9I. which does not exist).’ - - - Consequently. EPA does not anticipate reclassifying Nogales. Arizona. and Imperial Valley. California. as serious areas at this time based on preliminary Information submitted by the States. The preliminary information indicates these areas could attain the NAAQS but for emissions from Mexico. However, If the technical Information submitted with the SIP In November for any of these areas does not satisfactorily confirm the preliminary analysis relied on in today’s proposaL EPA will proceed to reclassify that area as a serious area in its final action on this rulemaldng. Information collection requirements subject to 0MB review under the Paperwork Reduction Act of 1980 (U.S.C. 3501 et seq.), A Federalism assessment under E.0. 1281.2 Is not required for this action since reclassification of moderate areas that cannot attain the NAAQS by the statutory attainment date as serious areas Is mandated by section 188(b) of the Act B. ReguIator Flexibility Act Under 5 U.S.C. 805(b). the Administrator has certified that redesignations do not have a significant economic Impact on a substantial - number of small entities (see 48 FR 8709). Because -reclassffications under section 188(b) constitute a refinement of existing designations, such actions are also not expected to have significant impacts on small entities. -- ListofSubjects ln4OCFRPart s l Air pollution. Particulate matter.’ Waivers, International border areas. -. Authanty’ SectIon. 188(b) and 301(a) of the Clean Air Act u amended. Datedi November 15.1591. - William K Reilly, Administrator. (FR Doc. 91—28004 riled 11—3041: &45 am) - DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety - Adm lnlstritlon . . .-.. - ------- Federal Register / Vol. 50 No.225/ Thuriday, ovemb&2i ,i Ig9j / Proposed Rules TsSLE 1.—AREAs WITH F4GH PM-tO DESIGN coNcENTRATIoNs AND EX ECT EXCEEDAJ1CES Utah Coimty. Utah— .The EPA doe. not ant*cf pate reclassifying the utah County nonaIt Inment areabecause the State has demonstrated that the standards canbe attained by December 31.1994. The State has adopted - regulations requiring RACM for area sources and RACIIOT point sources In the area. The control measures scheduledtobe lmplémentedby . W I . . - .. . Nagalee, Mzoaa—The EPA .d es.not anticipate red aIfyIng.theNogsiesi ‘1 4 nonat**It !1l I4 area based.on tburesnits of a pzeHmIi ry .tudypreparedby thea Arluena Department Of Envjronmeutal Quality In September1990. Therepcrt:,’ indicates that most of the PM— iD emissions In the-area . .t from. fi Nogalea. Sonora. M O’ - Thsiarea --W4 emission Inventoly Indlv ’.tesihatOl percent of the PM-b h ons — -. originate In Me,dco. An intensive a . ‘ .. monitoring study, Including timorlapse photography of airflow atth.borders(T conducted In 1989, IndIcated thaI PM 40 concentrations in Nogales, Mzona. were primarily atti4butable to sources in Nogales, Sonora. Therefore, the report indicates the State maybe able to demonstrate In the SIP due November15 that, with the application ofRAQA. Nogales. Arizona. could attain the- itandarde by December 31, 1994. but for- —, .j . .-- - j;u - S -.. . .1 %. 1, o• ‘Utah State f i.- .-.a-tj tanJe saG. octrol Str :P aid CsapILa - z Sthedide.A. e If ai1ülI — -- --‘! ‘-‘ - . U.2. I .do tob 11 5B& .Gt t PM—iD .m1aaloaseinanath)g frcm . Nogales, Sonora.’ .: , . : -- . • .. . . ‘ - CaWormla—Ths EPA dons not anticipate redasaifyb . Imperial Valley 0 ma fahiaiae4 -. based on the results of an EPAstudy conducted In 1989. The study hwlketed that In1 ?natfonatIranspoztOf FM- j o ’-’ from Me dcali in M& 4 co 4 ’Jf1ly fu4} 4ft fnfw4Itnrjng 5Itá In Cale*tca El tro and Brawley, ifcin2a .ibe report l”II’ utes theStatemay beab4mto demonsfratektheSIP N ber25 that, with the-appI tioaorRAO Imperial Valley cme the r r-- standards byDeóember 31 ,199S bztlm PM—b en ieuIonfrenanatsdgfiom . Msidca!L’i -f : -—— • nrjosfous AdditlonatSip revisions axe equked under sectlcn.189(b) for the Initial nonattalninent areas that.are - . . ,, • reclassified ta.edoua.PIr,Lreeulelions Second. the Stat. “4’a SiP revision wIthin 4 psirs after • • redassificatkin of the area that Includes a demonstration that the plan willattain the P4-1ONAAQSbyDei nber31 . O1 (see sections 188(cflZ). “ - 189(b)(l)(AJ( 1J 1 and 189(bX2)J Third. section 189(bX3P provides thav’forany Serious Area. the-term ’mafr,ótavV- and ‘major ststIas iuu include any stitfon rysource .tatlona y issucà located wfthbr dul sI ai*d nd1 c1 , ’ troT that ezidte r hâi hepotentIa to ‘ethff, at least 70 tons. er year ófPM 10. e This piovfslon retjuim. mong other,. thlagc smaller newaid fliodISad sources (those with the po ’tantfal to emit 70 or greater rather tbaniflo or - - tons per 3 ea4 to ol tatm.edlcnhJ2(c)(5) r igffi 3nn permits whlckle,ln&i requirements t smpII .wlth lowest achievable rates audio obtain ainI.eIø nifept . [ see sethlon8 172(c 5} ItIarseacnable,Inseme. ’r ’V ••— . ‘ drcwnetances. for States preparing SIP’s for moderate areas that will be re serious, to consider the relationship of RAQ4 to BACM and “A .asd*di. Slate ut —---lr.ts that • a bfl--- t lOL t aprsctI EPA a t • Rice at . ,. . , .. •. 241 1ar ui J?s S . ; • . - uin(p lOuSes II I LLuity. Lkicc0 . “. $1 .0 .47 POIt V VIII VIII I X IX IX I X IX IX ix i x X X OØsehp .L___________________________________ L hy,MT_______________________________________ - 3 11 241 553 244 18 51 2 62 712 78 5 RU .2 11.0 12.7 onD 1 7 Sit 174 26.5 112 - 1 2 .. t I ‘ 7A • - 55 114 534 4 4 .. 704 22# 84 004 704 . V I 474 PsiS. FO. P8. Pelt 4.FD . PB. PD S .-u-y PM. PD. FO PD I1....&.. P PD ffl, • — p9 PD, P8. U 1 ,UT PSiS AZ - Nm AZ Sni Jss *i V , C __________________________________ Deem Veley. CA_____________________________ Snith Case Ak Baell, C a n ti.ieV a t.CA ta Vat, CA V s s .NV ICte m Fate, OR k..i. WA_____________________________________ RWC—Ra ,4aiatj uo d conthuates . - • - - I.fl $A.1 ctPM-1O - Pcmt. ’Du.....ntpoi sums Vi a ‘ • ‘.- s. se Ie at g L . . . ci V i , . jJi... ,jd sees cees piAiW .d laSS FR 11101, Usd115. $001. s d s - lass FR .WIMlRiiid so. at eat o. se i ____ - .. :. j.. - ‘--. - requlrI t ,be use ofBM Unciudiog,u MtheappllI! t1onoLbestava1lable qtnq. control tccbnology toexlstlng ótatlcnaey (KR. Rep. No.499, lOut Cong.. Zd Sass 267 (1990)1 must be adopted and submitted to EPA within * months after the area Is reclassified to serious (section 189(b)(2)J. The BAQ ’A and . - ________ BACT requirements must be -’ v . ____ implemented wIthin 4 years after the _____ ______ area Is reclassified (section 189(b)(1)(D)J. scd lOt P 1 a 1 7 • - - - ._ .. -. - - eaat sqis a.iIti, ath.dite 1 v .4L ..Ma (bat __________ - ‘ ‘• - esethan5 . esmaftlO.otou soa • Prel1 ia ,7 tauselgadoc elVi s Cs to .. ViffàctIoa 11Sf a)’ EkIent of th, 5I I it i 1Vil —11 ,,qufr ii* ’P c .CP.L esaxtlei& , at tbó - “ AdD4$a.t .si,oiB..L . noIQsslUy_ - . aIII a- ’ vu ham .ttafied (Li ? .. pIo. Sep*esbes lSe o —S . ‘ . f ,-.. : . c L1a lOt se ‘Rural PuRftlve Duet Analysis: bperIaiCbaity -t±± Ws ’esPIaftSISYSlalaau- CmlsFtcctr oitiaepsred by Me bta iSftathlSySd* selc Slate enteas - . - . uMarSt ’A ContractNo. GD&CO94.’Wcak tf,ealb 5,I . . ..I. .d ISthS.ZU) less sscdos., uignmait No. * May 1090. ‘ ‘ i ‘ii IhifIVAIIIflL. ------- Federal Register / Vol. 56, No. 225 1 Thursday. November 21. 1991 I Proposed Rules 56661 RACT to BAC for the affected sources. The EPA discussed this relationship in a recent policy memorandum entitled “PM-to Moderate Area SIP Guidance: Final Staff Work Product” at pages 14- 16 (see footnote 1). The EPA anticipates that BACM for area sources, If required.. will be additive to or not significantly incompatible with RACM for these sources. Therefore, the moderate area SIP’s for the areas which EPA is proposing to reclassify should reflect the application of RACM to appropriate sources. U an area Is rerisinsifled In EPA’s final action on this rulem Iring. then additional requlations which require BACM must be adopted and submitted wIthin 18 months and implemented within 4 years after reclassification. likewise. in the case of fugitive dust associated with stationary sources, EPA anticipates that the implementation of BACK will not be significantly Incompatible with the Implementation of RACF. Therefore, EPA expects that the moderate area SIP’s for the areas identified in today’s notice will reflect the application of RACT on fugitive dust associated with stationary sources. If an area is reclassified in EPA’s final action on this rulemaking. then additional regulations requiring BACI for fugitive dust.at stationary sources must be submitted within 18 months and implemented withIn 4 years after the - area Isreclassifled.,- -- , - In contrast to BAC1’ for ititionary sources of h dust,PM-1Oe uiss1on; control technology det rminéd toj , represent BACI’ for processes at stationary sources may be significantly incompatible with the technology that would represent RACf.for the same - sources. Under such circumstances, It: would be unreasonable and. therefore.; would not constitute RACT to Install controls to meet the requirement for RACI’ by December10. 1993. that would. subsequently be replaced by BACT within 2 years. ’ Accordingly. EPAdoes not expect the SIP’s for the moder te areas that are finally recla8sj dW serious to requlremajoi hangèstthb control systems for specific stadc add ‘ process sources whereihe Sfo’? ’ reasonably dmiilastratd th111L P changes will be 5 1 t iflcantlydCW)3C .8 incompatible with the a liclilióq ö 9 • - ;:I :9U .) • •. , deufgested ncnau.L ,.. . ..t it . 2 ImpI—.--—4 RA t d ’-tini MACI) b O _ _ . _ h 10 1103. Ueube u d 110(b ). eze.. kmee BAQiL 21 1 MCEc.1T ,mth(. 4 year, afte, iecluafftcatlc .. UE Atà.a’ fiII .t*CtIOi eaDe b..3L199L the, e aU wfll be ieq*ed Ii mp en1 BACT byD.e. b 31 . —.J 1095. appvu.xlmawlp Z year. iSr. the 10, - BACT. A States demonstration should Include, for example, showing what the State believes RACT and BAC 1’ are for the source and why they are significantly Incompatible. Rather. within 18 months after the final nilentafrhig action to reclassify theseS areas, the States must submit regulations requiring the use and implementation of MCI’ wIthin 4 years. V. Final Adieu Area (under subpart 4J where the Administrator determines that anthropogenic sources of PM-b do not contribute significantly to the violation of the PM-to standard in the area.” The legislative history su ests that Congress contemplated. namrow definition of what may qualify as “nonanthropogeniC ” and would limit It to Include activities where the human role In the causation of the pollution Is highly attenuated (see gene ally. HR. Rep. No. 490,101st Congress, 2d Sees. 265 (1990)J. As one example of. type of source Congress considered to be anthropogenic. the House Report states as foflowe: “The term ‘anthropogenic sources’ Is Intended to Include activities that are anthrbpogenlc’tn orlgl&An -. example of such sources Is thi dry lake beds at Owens and Mono Likes In CalIfomla’whlchglve rlsi 10 dust:’ storms that are a resilt bf the dlverslon of water that ãould otherwise flow to such lakes and should be considered anthropogenic sources”,(H.R. Rep. No. 490at285). • TheEPAwillretypthn riIjon’ .• • Information in the SU a submitted. In November1991 to detez ne,wI ’aø ” ' anthropogenci soUrces ânidbute significantly to violations beach of the aboveareas. ltd qailsalons in nçn*s sad M-bO fiI àUh.tpI 4 7 mass b il inenaaalyslsifor the 4 ep wfllbe ilA ,AW In addition to the criteria disãussed In this notice, EPA’s final decision to reclassify the areas Identified In todays notice as serious areas will rely on the - moderate area SIP, due November IL 1991, and on comments received In - response to this notice of proposed rulemilrivig The final decision will be based primarily on the SIP attainment demonstration showing whether or not, the States can impleieant sufficient ,,.. RACM/RACT byDecember 1O,i993, to bring about attainment of the standards by December 31, 1994. Any areas that EPA determines cannot practicably attain will be reclassified except for., those areas that could attalubut for PM— bOeiniss )ons emanating from outside the United States. Areas that could attaIn but for significant contributions ofPM. - 10 from nonanthropogenic sources’to’ PM-b NAAQS violati usia Lhia à,: . ___ may be rectasàlfled as serfbüs areas. these areas If I aithiop ,’ us roes inai anwropogewcJcJu p , sign1fldandjto do not c1 n tesignlffcantjylna ‘ : NAAQS (see section partfcular area. EPA will edde wfwtb 6 i The EPA nyora llrequirementiroi l lAcMl technical in - - - MCI’ should be waived for the ardl... - -ì SW. for the f â areas meeting the a Section 2880) also granis EPA the. . quality rIterfa identified by EPA but • authority to “waive a specific date for which A does not expect to reclassify. attainment of the standard when the - - -• UEPA detpi,uthi.s . based on new ‘:.... Mnilnlefrator determine . that - i. . ‘1 Infonnallon contained In those SWa, nonanthropogenic sources of PM-to - that any of these areas c ”not - ‘ . contribute significantly to the violation practicably attain the standards by thS of the PM-b standard In the area.”The end of 1994. CVC tef dlsCOWttht3 - . - legislative history sjggeaia that “ [ tjhe -• frolU outside th . . - attainment date may only be waived for United States, or the Stats fail to!eufq. areas that have fully iniplenlented thefr’ submit an adequate ilnwiutradoa ‘ ‘a ti”(HJI Rep. No. 490 at substantlatrag thepreliminary ai c s-cl zesj. ’ ‘ ‘ - - Is matiojideodearlier ,EPA?w1ll ,e seve s ’ S e n ’ take final actl,anon this . .a%c!tigi ! bn i before EPA n establish a jiolicy for; proposal tO grañtIn the walvéki authorized dnder i 5ed0U 5 ‘ I/.O flbCff2C3UO 2L’W secdoni88(4Foi exampIe. EPA most , VLWaIvafrC aA 3” determine ’” :1’ Some f th; a eaaEP 1s b Wb t so’urces ivifl be considered, reclassify is serfâus have very -arid . “nonanthropoganic. . .. , , . • climates and are impacted by - . - 2. When nonanthropogenlcuources: nonanthrojio euicsourcei fPh -IOai • conbibute”signficantly” to violations well as anthropogenic sources. Section In an area. , - -. - r • .-..‘ . “ - 188(f) of the Act authorizes EPkto “on a . 3. When anthropogenic Icu ces do case.bycase basl;’walveeny - nbt coninbule si tlffcaiitIy to violations - requirementappllcabletóanySexlóus : - Inanarea.,, ‘,- .. ,- • ------- Friday January 8, 1993 Pa II Environmental Protection Agency 40 CFR Part 81 Air Quality Designations and ClassIfIcations; Amendments; Final Rule ------- 3334 Federal Register / VoL 58. No. 5/ Friday, January 8, 1993 I Rules and Regulations ENVIRONMENTAL PROTECTiON AGENCY 40 FR Pert 81 D-ffi 4I58 RIN NO. 2060-AC56 Reclassification of Ilodurate PM.l0 Nonattairiment Areas to Serious Areas AGENCY: Environmental Protection Agency (WA). AC11011 Final rule. VMY : Under section 188(b)(1) of the Clean Air Act. ‘A Is r 4 *ilfyIng as serious four areas In California and one area In Nevada which were Initially classified as moderate nnatt Inment areas for PM.1O (particles with an aerodynamic diameter less than or equal to a nominal 10 mlaometers). EPFEC 1VE DATE This action will become effective on February 8,1993. ADOREISES. The technical reports referenced In today’s document can be found In Public Docket No. A-9 1-53. The docket La located at the U.S. ‘A Air Docket. Rm. M-1500. Waterside Mall, LE-131. 401 M St., SW., Washington, DC 20460. The docket may be inspected from 0:30 a.m. to 12noon and from 1:30 p.m.to 3:30p.m. on wee&day. except for legal hoUda , and sreasonablefeemaybechargidfer copying. - FOR RISThER aiFOmI* C0I W Ginsburg, Air Quality Management DivWoaj Mail Damp 15,’ ce oIA Quality P l’ig derds ,IJ.3 . - En entel Prot Icn Agency Research Triangle Park, MC 27711. (9lI . 541 O877. B MY - is available sean electronic flu. on The Fedewi Bulletin Hoard at 9 a ,m the day of publication In the Paderal RagWen By modem dial 202-812-1387 Or call 202412.1530 for disks or This file Is available ferf iaiI&riyt Wc.d 11 eife * LI 4 an* - LB&gaeand : ‘ On the date ofe .iIthesagr • • Air Act Aes t ‘11jM40- d clgn .d nonatminmuitbyopsisdcn of law iss.generelly, 42 U.S .C. - 7407(d)(4X8) of the Act seiscanossin thian to”the Act” or ”tbe C3ean AfrAct’aaetotheCleanAfrAct.u amended. 42 U.S.C 7401 at seq 3 These areas Included all former Group! areas ldibfi,d in 52 FR 29383 (August 7, 19871 and clarified in 55 FR 45799 (October 31. 1990), and any other areas vioLating the PM.’io standard. prior to on fads specific to the nonattaInMIent January 1. 1989 (many of t area at Lasue end will only be mads were Identified by foothote 4 in after providing notice in the Federal October 31, 1990 Federal E. Register and an opportunity for public document). A Federal RagI . comment on the basis for A’s document announcing all of the a proposed de’ n . designated nonati Inment for PM-t at In those cases where D’A determines enactment and classified as modesits that an area has failed to attain the was published in 50 FR 11101 G 1 NAAQS by the applicable . ts lnm,mt 15.1991). A followup notice date, the ares is reclassified as sexiout some of these areas was p11 1 d1lL4 by cieration of law (see section August 8,1991 (58 FR 37654). ‘ 5s 188(b)(z) of the Acti. The A must nonatt lnment designations i publish a notice In the Federal Registes moderate area classifications wais of such determinations and consequent codified In 40 R past 81 in a F1 redassificatlons wIthin 6 months Register document pubtl.hmd en - November 6,1991(56 FR 3101).A1 th. applicable attainment theareaslntheNatjonnot- ’ - M oco aucewIth se d1on nonait litment at enactment wis . ISSM 1XA) of the . A is dmclgn*t,d unclassifiable lees SOot -. ouncing the rec *4ficstlon of those 107(d)(4XBXIII) of the ACt). Initial moderate nonattainment areas Once an area Is de nate&. which A has determined at this time nonatt*Inment. section 188 dth. cannot “practicably” attain the PM.1O outlines the process far NAAQS by December 31,1994. the - the area and establishes the area’s date ieee section atialnnwmfr date. In accordance 188(c)(1) of the Acti. As explained section 188(a) of the Ad, at the thea of further below today’s action discharges ‘ ½elgni.f Ion , all PM-la ii - - . EPA’s statutory obligation under section areas are Initially rJ 9ed — • ‘ iea ij j of thd Ad which required by operation of law. A moderate ares - he ‘A to appropriate Initial as serious sithai moderate PM .10 nonattainment mess smp mbl. moderate ares a5 . 5STlO1 byDeceiIIbS? 31,1991. date U A determines themes r.. Desucoduing That en Area ri 4 “practicably” attain the PM40-NU nobly IIah , by this aft.lnment date, or following the p dtbs ap lLcable_ -. .. Generally, A will rely on ient date I A In the State’s SIP submitta ares baa felled to attain ths dard. .aa the control strategy, et’ ” t ‘ 1h.p o ____ iI n.lraffon. and comnllànc. aIi. ’ A us(bml of the 4lstjWA • schedule I. determine w1rether 1t Is geese! authority to •:‘ practicable to attain the NAAQS In that d bike the applicable area byth. applicable ,ttMnment date. date any ares A dStarmI - - The SIP’s which were due on November ____ 15,1991 for the Initial PM-b moderate ________ sonattainarsot areas were required to ____ r nMsin. *mmig other requirements, a centre! utmt based upon the use of IdlH i , s bpara aphs ( Aj 4 ably available control measures section 188(bJIl) of the Ad 1 ’ (RA 4)-mbIth l’1t4ud 0 reasonably that A ‘ r øI r “appro.” piiILit.avallable control technology (RACF) nongmi g pe .d t . z1s *L s 173(c)(l) and 189(s)(1 Q frames IL... by December 3$Nfr 0Lthe Act).! Th Statss were also the lithI.t PM-i0 nonatf.L. •;‘ required to demonstrate that the SIP’. and wIthin 18 ni 0 i th . for timely Implantmqatlon of submittil du. date fo n1 - and umeut of the NAAQ& areas). ‘ t Th. *A must be Implemented In the d’ December10, 1993, and the areas mud - PM-IC n af*2lnm it sees by ___ ft ” the standard as expeditiously as at certain thorn. ’ Any du —%y pr ’ ”le,bat no later than December t,rlrn 4 fy an ares U 1994. rml an area can applicable e+’ I” ent dat. *11 b. se&T 4lmonstrste that attainment by that date ‘Th. A’s t.I Ucs afite. RACT I.a sm of ibs o,snicbIa MAQi vlMans te us a 1eI(b (1) of & -’ _ lass a—” - R?2(cXl) o.’th. A L ml ________ ooiy she ‘ - teanicgicsL A “ —‘—‘— of 1190.” ST 0* (Ai11 iS. illS). lactudsrMCt. ------- Federal Register / Vol. 58. No. 5 / Friday, January 8, 1993 / Rules and Regulations 3335 is impracticable (see sections 188(c)(l) and 189(a)(1)(C) of the ACt). There are at least three reasons why an area may not practicably attain the standards by the applicable attainment date. First. implementation of the SIP control strategy, including RAC f. may not create sufficient emissions reductions to bring the area Into attainment. The State will have demonstrated that an Initial PM .1O nonattainment area cannot practicably attain the NA.AQS by the applicable attainment date if the implementation of RAQvI by December 10, 1993 will not achieve sufficient emissions reductions to attain the standards by Decembel 31. 1994. The EPA has interpreted RAQ 4. including RACT. to be those emission- reduction measures which EPA believes are generally reasonable considering technological feasibility and costs of control. The State should prepare a reasoned justification to show that a particular control measure for an existing source is infeasible or otherwise unreasonable and, therefore, would not constitute RACM. 3 Otherwise, the SIP should include implementation of all available emission reduction measures that have not been demonstrated to be unreasonable. Second. nonanthropogenic sources which cannot reasonably be controlled may contribute significantly to the violation of the PM -b NAAQS In the area. Moreover. section 188(1) of the Act authorizes the Administrator to waive a specific attainment date for an area where the Administrator determines that nonanthropogenic sources contribute significantly to the violation of the PM-b standard in the area. Section 188(0 of the Act also provides that the Administrator may. on a case- by-case basis, waive certain requirements applicable to serious areas where the Administrator determines that anthropogenic sources of PM-10 do not contribute significantly to violation of the PM-b standard in the area. 4 Note that an area Is rerin .aifieiI If EPA determines that it omuiot practicably meet the appllcàbli st..lnment date or that it has failed tG t such date. Thus, reclassificatinsie keyed to a specific date. If that èI. is waived, the area would not be . uLJal to reclassification because there simply would be no date that the area cannot practicably meet or that the area fails to ‘S. , the “G.,.ral Piia ble to Thu I of the Demo Air Ac? Am U of 1990.” 57 FR 1334043544 d 3sso-I333I (Apnl 16. 19921. •m . m’Ab road. evailabi. to tha public theft oo the appllmodco of the weleW p oeie$m$ .ad ssc mo I ea(fl of the Aet Ieee 57 FR 31477 UW 16.1992)1 mid wdl floalize that — at a Latw dat.. meet. Thus. while noáanthropogenlc sources which cannot be.reesonably controlled may be a reason an area cannot practicably attain, if such area qualifies for a waiver of the attainment date under sectIon 188(0 of the Act, it may also be a basis for not re”usifylng the area. Note that In today’s action, in order not to undermine th. waiver provision. EPA has given some consideration to Spokane’s potential exclusion from reclassification under section 188(f) of the Act in determining whether It Is “appropriate” to 19 i4aaeify that area at this thne. Third, the area may be significantly impacted by PM-to emissions emanating from outside the United States. In the latter case, the State may demonstrate that the area qualifies for treatment under section 1793(d) of the Act, which provides that areas which would have attained the NAAQS by the applicable attainment date but for emissions emanating from outside the United States shall not be subject to reclassificatiorr requirements under section 188(b)(2) of the Act (see 56 FR 58662). In such cases of International transport, the State will be expected to demonstrate and quantify the international contribution of PM-lU in the affected area. Any State conl*lning an area which may qualify for treatment under this provision still must timely submit a moderate ares SIP far such rea. In order to have Its moderate PM- 10 SIP approved under section 179 3(a) of the Act in addition to demonstrating that It would have timely attained the PM-la NAAQS but for International emissions, the State must submit a moderate SIP meeting all requirements applicable to moderate PM-1O nonattalnment areas other than the requirement that It demonstrate timely attainment. The EPA may also consider redass1 ,1ng moderate areas for which a S W has not been submitted whenever It becomes apparent. e.g., because of an extensive delay In submitting the SW, that the area cannot practicably attain the standards by the end of 1994. The EPA also may determine that an area cannot practicably attain the PM-tO NAAQS by the applicable date when the Sthte submits an incomplete or otherwise inadequate SIP for the area, which would not assure timely attainment and the State does not act expeditiously to cqrrect such deficiencies. The EPA has notified certain States of their failure to submit PM-b SIP revisions for the initial areas by the November 15, 1991. deadline and has notified some States that their SIP’s are incomplete (see, e.g.. 57 FR 19906 (May 8, 1992)). These actiofts constituted determinations under section 179(e)(1) of the Act and were communicated in letters to affected State Governors. As provided under section 179(a) of the act, States contAining which EPA has made sucb determinations have up to 18 months from EPA’s determination to submit the plan or plan revision before EPA is required to Impose either the highway hznding sanction or the requirement to provide two-to-one ne-v source offsets descnbed in section 179(b) of the Act. The EPA’s determination also til ered the requirement for EPA to Impose a Federal Implementation plan as provided under section 110(c)(1) of the Act. In conjunction with the possible Imposition of sanctions. EPA may propose or Issue a final determination to reclassify the area as serious. Reclassification of en area as serious does not obviate the legal requirement to implement a moderate area SIP. ilL Determination for Reclassification As noted, the PM-ba reclassification provisions contain a general delegation of authority to the Administrator Indicating that he “may” reclassify as serious “any” moderate nonattainment area that he determines “cannot practicably attain” the PM-b NAAQS by the applicable statutory deadline (see section 188(bXl) of the ActI. By its plain terms, this provision confers broad discretionary authority on the Administrator (hereafter referred to as the “discretionary” reclassification authority). Ass subset of that broad authorit f, section 188(bM l)(A) of the Act mandates that the Administrator propose to reclassify “appropriate” - initial moderate nonat*nb ment areas as serious by June 30, 1991 end take final action by December 31,1991.’ As described above, Initial moderate area SW’s were due November 15.1991. Thus, EPA did not have the benefit of these required SIP submittals before developing and issuing the rerlamolficedon proposal required under section 188(b)(b)(A) of the Act. In the absence of better information, EPA used surrogate criteria as evidence of an area’s ability to timely attain and proposed to reclasa t fy 14 areas rei}ing on that criteria. However, In Its proposal, EPA also contemplated that it may get better information about an area’s ability to attain In. for example, ‘See 54 FR 5463$ INovoabor 22, 1991). note 3 ‘This dlzuctlv. does act resOict D’Ae genwel suthoilty, bit simply specifies thai It must be moercised. ate minimum, In accordance with certain dates for ness designated ocouttainment under sectl %o7(dy’xb) of the AOL •1 ------- 3336 Federal Register I Vol. 58. No. 5 I Friday. Jai uary 8, 1993 / Rules and Regulations the form of the required SW submittale.’ Thue. EPA entertained the possibility of roceiv ng toEor’ which rebutted the iiiAir tors ($8 FR 58858; Nov. 21. 1991): Thus. while EPA believes the Indicatois for . wcuig s o area’s ability. or inability, to attain ama vesaooable. they are rebuttable on a cese.by-case basis. Since this proposal. EPA has received SIP’s for some of the 1411e81 Identified and hu received other Information bearing on the determination of whether it is appropriate to reclassify such areas at this time. For example. EPA has received SW submittals and detailed SW work pisas for some of the areas identified In EPA’s proposal which purport to provide for timely attainment. Am noted. EPA is directed by the statute to make a final decision to reclassify appropriate areas by a data certain and that data has already passecL Due to these time constraints, EPA cannot fully review the SIP’s or wait for SIP’s which have not yet been submitted. (hi the other hand. EPA believes this tnfom t1nn Is relevant and should be given at least some consideration. The EPA has reconciled this dilemma by preliminarily reviewing the SIP submittals and other relevant information (Including the public comments submitted in response to EPA’s propntal). To the extent such information Indicates, contrary to the iteria Identified in EPA’s proposal. that the area may be able top ty attain by the end of 1994. EPA Is determining that It Is not appropriate to reclassify the area at this time and. hence, has declined to take final action - on such area In today’s rulemaking, Nevertheless, EPA may conclude at a later date that one of these areas cannot practicably attain. For example. a full review of the reqithed SIP submittal may reveal that the ares c ot practicably attain. In addition, the delays In developing and submitting w required November 15. 1991 SiP submittal may become so prolonged that the ares cannot precitembly $ohi In such h ences , EPA ld 1 .- d. , Its dlsoretlonauy authiu ’Ibj’ _ m s emi 188(bKi) of the Act to .I—fy the area. Note that EPA’s ” ‘1 - oat to rethmify them. aim time do. not mean that any SIP , 1I d on In ‘s Ndssaemt — wim — — Ia .raatsiea th. ..d.. .Iip deIi &ad It by ludion 1U(bIlt) cith. A . $b ao thu uisuardo. ool addrsw thtu wuc - y by ite sppI1 doluao .y . uI _ ‘ wta nay Imd.SW making such determination will be approved. If a SIP purports to demonstrate att aninnat . that is simply strong evidence contradicting EPA’s aiteria and militating against reclassifying the area at that time. The EPA may conclude after a full review of the SIP that It has deficiencies that walTant less than hill approval. Farther. If such deficiency would preclude an area from timely a*iining , then EPA may exardee Its disaetlonsry authority to rer I..r ify the ares. In any mae. no binding EPA dadslan about the approvability of any such SW will be mad until th . public has had an opportunity to Iment on such decision. In some EPA’ . preliminary review of the SIP for so ama revealed that th, area could not pr. 4l Iy in by the required date and should be r.ri.aoifiod. Thee. are the atom reclassified In today’s re4ao Specifically, In today’s action. EPA Is reclassifying five stem. (listed in Table I and , 1i.r .c. .d below) which EPA has determined, at this tires. ot pracicably attain by 31.2994. The EPA has not received public comments or other lnfrmnatio. duneg the public n t period In opposition to EPA’. deI4 to — them areas. Note that, em lndI’ ted In EPA’. proposal. reclassificatIon of an area In nomannerlthviatestheob’__‘__to ahao4t moderate ares SW 56 ER 58656 Nov. 21, 1991), Thus, those amas reclassified In todays action mud, among other tithigu , submit pma 4 to assure that gs . _ ..1sIy aseiI con ol maserans (Including u.—aethly available cootrol te ’ 4 ’o.Iogy) are’ inrplemaated no later than Deauib 1O , 1993 emI ubmlt a dimonitretion that attaInrn ent by December 31.199415 impr Ir .h l a Two item. i ffiad In EPA’s — have requested toestmeat under the International Durdat provision ( 4m 179801 Ad), While EPA has not yet received a 4 . tOSiPfore ltherofth eeearsas.EPAb es significant In mstIon en .ming that the areas may qualify for - untler section 1798 of the Ad, indudhig an exclusion from mdami i n under semioo 1798(d) of the Ad’. 8s ‘ — — iIIBWId A thM 4.osuItusngr- ’---- elite iIA $ betto aniulase ‘ g ins ce thu thuD e ,th oct1o s m iIa b)($ cf Aol ( r to do?. dte4 Ito rein 11 ’- ’7 nsuuuotes. A wdl aol r— ”y b . ipp h. d a emrwb th em donomume - -- “ of thu NU tedin unlo.u hun aoatd. jose um Ioo iM(b 2) of the Acti. Pint. na T iS EPA has information indicating that these areas are significantly Impacted by emissions emanating from Mexico, but Insufficient information to determine whether they would qualify for treatment under section 1798 of the Ad. EPA is dedining to r,i fy thee. areas at this time. This reprsearts. In some fashion. • change In position from EPA’s proposal In that EPA believes the Information cwnently.anllthI. to EPA. standing alone, lea sufficient bmis open which to conclude that theme areas should not be reclassified at this time. So as not to undermine se 4 1718 of the Ad, EPA believes it is y n 1 4 conclude that it is not “appropriate” to reclassify these areas at this time whom the.. Is acme gn c ,nt evidence momeating that these areas may qualify for an exólusion from i r .I4os ’ un tbm provision. Hoomv. EPA may rw4ow’ify these areas using its discietionary reclassifir 1it . .i authority should EPA at some time in the future determine, for example, that th. areas cannot pr lcably attain and do not qualify exclusion from reclassification under section 1798(d) c i the Ad. For erempi.. pzol d delays in submitting the required SIP for these areas may had EPA to conclude at some future time that theme areas cannot practicably attain bytheend o 11994. In sum. In today’s final r.Iu Ll g , EPA I . reclemifying those atom which EPA has determined at this time practicably att te the PM-b NAAQS by’ the applicable etatutosy attainment dais. Today’s 4 on wholly discharges EPA’ . stdutmy duty to ri’4.ealfy “appropriate” moderate areas em serious by De ”’ 1 ’st 31, 199 (ae.sectltm 188(bX ll(A) of the Acti. }L ,w t , EPA alsoresaryes the right to use Its hued 188(bM lI oithe A IS Iuui 4 aouify at. later dat. the nhaatuss EPA dr4bii.d to in today’s action. I L at times In th. future bd the appbmbi. attainment dot., EPA determines that such stem me1 1 o—iikebly altaln the PM-b NAAQS. EPA will take final of the Aol . oste aj- -1 let en pna)Iosem w.g.*- outodo th.reuatry irs th. but.to mis of thu P 5(. iOol ” ’t FhIk 1 muLe. If li ’A wee non bs . A, to . , d It. . tUo 1?l(dl of the Aol asS elite iWo 1 t 1ly. I1 A . itLi to r.i4...l bar. Ucthis t dir. these non to i I7m.d .ao ons w E ae, L..,l4.u r. thu Ii usctlca 17e.(d)dths Act whith puetobb A in. ate thu . ,p utr.inment dun. r of—, — eL * towi th ____ ‘ so.iiu u4.esMPEd eases. Nov. 21, ages, e 121. ao LS.A. S ic. V: f ’RDC 467 U.& en. W4 55 I3m.a)3 . ------- Federal Register I Vol 58, No. 5 / Friday, January 8, 1993 / Rules and Regulations 3337 action to reclassify these azea& Note that areas not reclassified today wlfl re. , ain rulemaking record for any future the materials In the ruJ ti1dng docket In furve as part of th, ongoing decision to reclassify these areu for today’s action pertaining to the nine utIIl Ing EPAs discietionary authority. TABLE 1.—AREAS WHiCii EPA IS REcLAaslrffiG AT ThiS TIdE’ SPA NOS Mae it 9m Ssejaspi Vats ,, CA O a Vats,. CA Sev liccseaw Bsat .CA c I s ,.CA ImVs s .PW F . us JLJ. PM. Pr FO s. a e l, P M , F O FD. PD ‘liw 4 — - a a j. a. a a at ow esis’ . . seit es ‘FO.Fi N Areas Which EPA ia lidasuifylig at CoacheJla Valley, California. The EPA Is reclassifying the Coachella Valley nouatfAinr!lent area at this dine because the SIP for the ares submitted to EPA by the State of California on November 15, 1991 suggests that It I. not practicable to provide for attainment of th. annual and 24-hour PM-b NAAQS until December 31, 1995, 1 year after the moderate area attainment date. The PM- 10 SIP for the Coachella Valley Indicates that 97 portent of the PM-b emissions are due to fugitive dust sowcas. The most significant of these sources are construction activities. reentralned dust from paved roads, and windblown dust from agricultural and disturbed lands. Las Vegas. Nevada. The EPA Is reclassifying the Las Vega. nonattAIntIleIlt eras due to the hot that the PM-b SIP submitted to EPA by the State of Nevada on Dr eii her 6 1091 suggest. that Implementation of the control meemies contained In the ‘ will result In suthdent emissions reductions to attain the annual PM-b NAAQS by December 31, 1994. but that It win notbe practicable to timely attain the 24-hour PM-to NAAQS. A 19*9 valley-wide emissions Inventory suggests that a substantial amount of PM-tO emissions am due to Ih4d s dust saunms. Mlavlnvunter4ea indicate that significant sotircas of fugitive dud Include construction activities 1 paved and unpaved rosds .d windblown dust from dIsturbs . . 1 ,l land including dlatwb.ddesst’ ‘Th. WA vied th. .---- I pu sdc. of the PM-iS . -‘--‘ -‘ i, Ia - public put as asss Nbalds . . -“‘ .ffcds a develop a th. suc iaatflofth. Ma u,Wass 99F1 IISSI-IISsu N .e. 31.lISl). The Oath C y Health O - - _ - - SS5I vi of fi 5 Ildfi the of 1 5 8 ( 1 1 of Ib.Ad . Cab Co y’e m eu addrs. WA. L1. itIla of ead up sM ad ., atc ”m lUll) .1 the Ad asd do i reqelet thie WA it l eopo.ed decldc3 bv. iy lhk ats. l..... ... ..Cah Cavity does eabstasisis a whet Owens Valley, ColIjbmIa. The EPA Is reclassifying the Owens Valley nonattainment ares at this Urns based upon the fact that the PM-b SIP submitted to EPA by the Slate of California on January 9.1992 asa ests that the area cannot practicably attain the PM-tO standards by December 31, 1994. AmbIent PM-b levels In Owens Valley are among the highest In the country. In 1989,10 : Ins ’ c , the hIghest 24-hour PM-b ccac ntrstIon observed In the area was 1861 micingrams per cubic meter (ugl&), In contrast to the NAAQS of 150 vpJ&. The PM-b SIP for Owens Valley Includes an analysis of wind direction and wind speed on days when PM-b levels are high, which Indicates that the major source causing , Iktlw . of the PM-b0NMQS In this ares IsOw um s Dry Labs. O wosDry Labs ra approxImately 110 squssa idles near the south end of the planning iris. Appyordmatsly 60 sçzars mile. of the lake 1. dry. The Great Basin tialfied Air Pollution Control District Is manuntly developing and svahastiaga variety of mitigation measures. The final mitigetion program Is scheduled for Implementation In 1995. The Grist Basin Unified Pollution Control DIsttfd submitted cel umts to EPA supporting the rr4 .el of this - &a Jonqui i Valley. Cal4brriIa. The EPA Is redaselfying the Sum Josqufes nanate lI11v1a1tt eras due to the fad that the PM- iD SIP for San Jn piM Valley t the Oeethsr IS. _____ - - ta a, IvUOL the vPSf bees uae. PlasBy. WA . . ...dy ..dos lis . — rss(l)dth. Ma paSs, paSSe ad bald apdSe— - aparrido the paSSe with J O ap,. i;l , a - a. It, osa. 157 Pb 3bi77; Isip * ISeIL Riet lo-’—ési a doW. amdeidfyae atasie iwios will e m sEem as va’e dlillUty Sea wits. The WA will aseitdu . lbs Cart Cialy ‘ — ‘- a sddtssag .a.tas rs8(fl it the AS us — II areWes thaS — 158(11 itth. Ma policy ta lI hi of the vsdo .i “ “ . 4.4.4L su hm ltt.dloEPAbyth.Stat.of ( .ll&i iiIi Decvmlir 24,1991 suggests that the ares cannot practicably attain the PM-b NAAQS by December 31,1994-Moreover, the area has not projected attitinment betas, the mber 31,2001 serIous aria attainment date. Violations of the PM-iD NAAQS In the San Josqulu Valley are doen4 e id by two source categories: (I) primary PM-to sow s, Including yesutreined road dust, construction activities. and farming operstIoa and (2) no ”d&Ily-formed PM-b. Including aenmanlum nitrate and smmcnlum sulfate. On days when primary PM-b emissions deiuli,ats , lugItIve dud emlidons socotmt far nearly I0p. . 1 of the PM-tO mess. On days when secondary PM-to do 4aia , nitrates end sulfates account far 63 percent of the PM-to mass. The eteL .n .4 ate for the San Josquin Valley will rely heavily on the control of widespread fugitive dust sources and the e .trul of precursors of PM-to. Including nitrogen dioxide, sulfur dioxide, and volatile organic cc7=d: Al, Basin. Qzlifan The EPA 1. reclamifylng the South Coast Air Basin at this time because the SIP for the South Coed Air Basin projects tbm It Is not p wl 4 e to attain the 34-boor PM-b NAAQS until the year 2009 and _ lTh.lIInL..W of the annual PMbO NAA($ by the 2006. These date. are well the Detanbar 31,1994 moderate ares attainment date. The basin-wide — Inventory Im the ares o em approximately 6800 square miles and Indicate. that 91 pmcit of prImary PM- 10 embm am due to ama sourme, primarily rssitrsthsd mad dust. With .ruj.c’.a Inorsuses In population (31 pemsut ) and Inasaasa In e 4 miles travelled te2 puui.wit). PM-b emIUlons sssodsted with reentraln.d iced dust are expected to inaese from 663 tonal day In 198710 1025 tons/day In 2010. In addition to the widespread sources of primary PM-be emissions, source ------- 3338 Federal Register / Vol. 58. No. 5 I FrIday, January 0. 1993 / Rules and Regulations contribution estimates Indicate that secondarily-formed particles (nitrates and sulfates) can contribute as much as 52 percent of the 24-hour PM-tO mass and as much as 31 percent of the annual PM-iD mass. Therelare, the .ttihm.nt strategy for the South Coast Ab Basin will also rely heavily on the control of Important precursors to PM-ID including nitrogen dioxide, sulfur dioxide, and volatile organic hydro c athon V. Area. Which EPA I. not Reclaulfylag at This Tim. While EPAIs SAWn 5 final action to reclass 4 fy the five areas descsibed shove. EPA Is not reclassifying the nine areas listed In Table 2 at this time. Including those areas which EPA has determined. in Its preliminary essewnent, to be affected by International transport. Generally. EPA has Information for these areas Indicating that they may practicably be able to attain the PM-tO NAAQS or may be excluded from rerl l,ifi1*tlon due to International transport (see section 1798(d) of the Act). Thus, EPA believes It Is premature to re ’ 4 *&fy these stem at this time. However, as noted, EPA holds open the possibility of reclassifying these areas using Its dluaetlonaty authority under section 188(bXi) of the Act. This will permit EPA to undertake a - comprehensive review of each areas control strategy. The EPA anticipate. that it will take final action on Its proposal to r rLi t*ify these areas because they cannot practicably attain at the time It takes nilem ikfng action on each area’s SIP. Note also that If a PM- 10 SIP control strategy and demonstration have not yet been submitted far an area, EPA may conclude at some future date that the area cannot pr 44mbly ft In due to protracted delays In making such submittal. Amove specific discussion follows below for each of these nine areas, Including the ulgn fi’ nt public comments which EPA has received. TASLE 2.—AREAS IICH EPA Is NOT RECLASSIFYING AT THIS T uE’ EPA . anast .......m umss • 0 L s Uior 5 . Poet is o IpO4 Po’ss n nst in cay Cselut. PA Peti V Vu V I I I OØu y.L I.Lb ,.MT IMP Co..UT - P * FO’.RWCPS’ Pee.’ PnáSpIW.AZ P iN.PS I X Mujplu& AZ IX X lamisSI Fa OR uMSiTSSonhI’. FO ze.V sy.CA PD. RWC. PS FO .U... PS X 4WA P0.PS.RWC . ‘a. se JI. 4De te was isa e s . .i_Ijlfti e in in — e. us rs Miss e..a isi • - — i . • mw • U....JL.J N, M SPIW • I — — liberty Borough. PennsyMznla. The EPA has detsrmlned that, at this time, It is not sp .yrlato to reclassify the Liberty Borough nonatt h nent ares to serious. This decision Is based on comments and Information received during the public comment period regarding the ability of Allegheny County to attain and maintain the PM- 10 standard by December31. 1994. The l 4danlgelsobasedonthe commitment by the Mlagheny County Bureau of Air Pollution Control to submit an apptfr i14e Implam .nis*I.m plan which damonatatos the ati lnment of the PM-to NAAQS by - . te area stt Inmg t dAte V $ ii--,iber 31, 1994). The Liberty Bc ’ 1 nment area Iscomprimd of LL t, ) L ln. Port Vue, Glassport Bcisegire.’end the City of Clairton In Afl ghany County. PennsylvanIa (58 FR 56823; Nov. 6, 1991)-The ares Is heavily Industrial i sed with a diverse mix of sources Including steel manufacturing, utilities, and boilera. Them sources ganerate both point source PM-b iI iona and fugitive dust. In 1989 and 1990, e ” ” ’ control measures were hnpfemerrted In the nonatt*lnment area In addIti n to those measures which had been Installed previously. However, EPA has not received a PM- 1051? for the Liberty Borough nona lnma!It area. On December18, 1991, the EPA Regional MminI.lratrrr sent a letter notifying the Governor of Pennsylvania of EPA’ . determination that the State had foiled to submit the PM-ID SIP far Allegheny County by the statutory submittal date of November 15.1991 (se.,e.g.. 57 FR 19906, May 8, 1992). ThIs determination started the 18-month finmolock for the Imposition of nn’ 44 ons and the Z-y.er thnschwk for promulgatlonofa Federal lmplem.n’.th”i p ) • The EPA did receive a “PM-ID work plan” from the Allegheny County l4ealth Department an Mirth 26,1992. The work plan commits to . ts lnm tt of the PM-b NAAQS by the statutory fl inim nt date of 31 1994. It eummarims th. proosdures to be followed for the developus”’ of the SIP . ub ” 4tal , Including modeling and monitoring sir quality In the area. condttrllng an ,nh,icns Inventory, and producing a control strategy. The work plan also establishes a schedule for SIP submltt }, Indicating that the chidul. will be tset through a cooperative ,gort wIth EPA. Th. schedule projects that theSWw lflbesubrsiuttesftoEPAby June 15, 1993. The EPA received mare detaflad com n its on Its proposal to , e l fy the Liberty Borough nonat” 4 n’ ”. t ares thananitsproposedsctlon another areas. Rather than discuss those comments and EPA srespcnses In detail here, EPA has placed a document In the docket . mpanylng this notice which dssalbe. those snd explains further the rationale for EPA. dedsiop not to redamify the Liberty Borough n( .aft In t Sill U serious at this time. - received barn the - local air pollution control agency, the C’w’u onw,alth of Pennsylvania. effected Industries, local dH,.u1. . end public Intereit soupe. Those . ..mm _ .Ima opposing e ,4h..Ifir tlaa based their viaws on . rUons that Improvements In air quality are th. remalt of Iocelly4nstlttdsd controls, that EPA did not adequately consider the air quality Impact of those controls in Its decision to propose re . 4 amlflr*tlon of this area, and that the PM-ID work plan provides evidence of the State’s commitment to, and the practicability of. att sInlng the PM-to ------- Federal Register F Vol. 58, No. 5 / FrIday, January 8, 1903! Rules and Regulations NAAQS by December 31; 1994. For these reasons, some of the ctlmmenters indicated that It wouLd be prematur. for EPA to reclassify-this was. Gemments favoring reclauffication were based primarily on cononna about poor air quality in the ens on disagreement as to the cause of ieomtly.obeerved Improvements In air quality, on assertions that the sates failure to submit a SEP by the November 15, 1Q91 due date precludes Lb. area’s ability to timely attain the NAAQS, and an the belief that reclusiflcatlon would best advance the goal of expedMious attainment of the NAA & Briefly, EPA has It ede c islonon the evidence provided in the Allegheny County Health Department’s work pine in support of that ares’s commitment- Ia attain the NAAQS by December 31, 1994. The EPA has further based its decision on the fact that uuuentere favoring reclassification have Trot provided any evidence which rebuts the State’s and -county’. assertions that attainment by December 31. 1994, practicable. The EPA notes in response to those favoring reclassificatIon that reclassifying the area at this thee would result in the requirement that the area implement additional control me w , but would also permit the State to postpone attainment potentially up to the statutory serious area attainment date of December 31, 2001.10 By not reclassifying the area as serious, EPA. intends to enforce the statutory moderate ares requirement for the Stats to adopt a plan which provides for attainment of the NAAQS as expeditiously as practicable, but not later than December 31,1994. The EPA believes that the principal concerns expressed by the commenterl favcdng reclassificatIon—the need to promote near-term improvements in air quality— are better served by not taking final - action to reclassify an area at this time - where there is some reasonable - evidence that the area may priu*fr hly attain by December 31. 1994. Spokane, WashfrØrir . The EPA Is n taking final action to* i,ify the Spokane nonatta ênt ares at this lime, but will ma gflnal decision at the time the Agency tshas rulemaking action on the SW. This WIN permir EPA the opportunity to comprehensIvely review the SIP and to ef the r!laiuit that nonaualnnaent In the ares is attributable, at least In part, to - nonanthropogenic dust storms, and that the area is potentially eligible fora S n I S 1 of .AcIreqtr ’v, tInt teim_analmnmt su attiln NAM re mp.dlOsusly p.-lkstl 1 - . but r -iw thas D.—, Jj, . . 31. 3001. — waiver of the L mfr er 31, 1994 attainment date under sectIon 198(f) of the Act. The EPA cannot reject or a pt these claims at the present time. The Agency is au eutIy reviewing the SIP for Spokane, giving particular consideration to any antluopogenic conthbutions to emissions that may be reentrained during the ares’s dust storms. The EPA wIN determine Spokane’s eligibility era waiver of the moderate area attainment date under section 188(1) of the Act and will mak a final dedsio on rr-t.. 8 mtlon when the Agency has completed Its review of the area’s SIP. Comments received kvm14 private d ti and government. Industry, and environmental groups attribute -. Spokane’s nonattahunent status to. nenanthropogenic dust storms. One commenter asserted that these dust storm. emanate from the appnrrdmately 100,000 emes of ondeesloped. untWed land southwest of Spokane. and to approximately 500.000 actes of farmland vulnembi. to soil erosion due to high winds. According to the -. Spokane County Conservation District, such soil eroultre Is especially prevalent after hatweut and prior to the emergence of the new ctop, . ‘ ting that It I . not possible to pn vvOt windblown dust during this vulnerable period. They add that whour compounded by high winds. pieventina this windblown dust is “beyond the realm of legislation or regulation.” One omsvatlcn fanâer indicated, however, that heusen-have be n working dosely withihe Soil Conservation Service to mitigate-the erosion to their eropland. In addition to comments regarding nonanthropogenic sources of P1410 Ia ’ Spokan. County. 3 alecIad M I.1n Washington State. the LIIUIW.VII*ain Grass Growers Aaidation, 3 Spokane County public ageumies, and 1 private corporation contended that the drretetorms In the Spokane area should be treated a. “exceptional events,” a. di itc imd In 40 C7R part 50, Appiundtv K. section 2.4. As such, the commenters believe that contributions from these dust storms should be discounted when measuring exceedances of the PM-to NAAQS. Becaus. the State has measured 7 auth occurrences during the 3 sr reporting period, ther. Is i seson to believe that these events happen with a regularity which would disqualify them from treatment as exceptional events. Again, EPA will make. final determination regarding this claim following a comprehensive review of the SW “Line fr SpcIn ,a. C ty Gsuss.adoa Dtiuicf I. Km Woodud, Dr. .h 17. ISOt. submittal. 0 .. £_. . entar urged EPA to classify this are. serious, but did not substantively addrwa whether the ares cannot practicably attain by the applicable attainment date or the ilkalihood-of the wee qualifying for a waiver of its moderate axes attainment date under section 188(f) of the Ad. Available Information to ,Hr4f 5 I both imperial Valley.Callfmnla, and - Nogales, M ama . may qualify for treatment under the International - Transport provision In section 1793 of the Act due to particulate matter ntanating from Ma . While the Agency has sufficient data at this time to verify that PM-b originating In Me,dco contributes to nonattalnmeut in -these areas, additional monlteriegend air quality analysle-er. ne ’— , to quantify the International contribution so that the S 1P’. for Naples and imperial Valley may aonzrately discount thtemetionalbea port from their attainment demonstratIons, and EPA. can correspcmdlngly determine whether the SW ’. for th . areas would be adequate to attain and azalnisin the PM. 10 PIAAQS but fo emissions nman Wng from Mexico (see section 1793 of the Act). The following is a more dstailed ‘ J.. . . of the at cI-4 by international transport : letpetiol Valley, California. The EPA • is not redas&fying the imperial Valley neuattalnnrent a r m at this tire.. Although the Stat. of California has yet submitted s PM-tO SW for Imperial Valley, previous reports Indicate transport from Mardall, Mexico, may significantly contribute to elevated PM. 10 levels In the Valley. 2 As suth the area may qualify for emlusfeur from raclasalflcedon to serious eada eectlori 1798 1d) dUwAot. - - - On D ,, asib — 16,1901, Lb. EPA Regional dr_lntntja_pw.f0u ’ RegjagDCj sent a letter to the Governâr of - California notifying him of the Stat&s failure to sulinit a SIP the Imperial Valley. Thu notification started the 1$. month timeclock which wIN remit in the Imposition of eanc’ ons if EPA d not receive a SIP lie. sectIon 179(a) of lb. Act). The bnpwial County Air Pollution Control District Is currently working with the California Air Resources Board (CAEB) to develop a P1410 SIP for this axes. The SIP is scheduled tobe submitted to EPA by the sa- i1fanga i,aj PusJdve Dust Mse, weasud bp n Assecistes. Jmvssy %911 “Eim.p s Lersi 0 .. Air Quinty An.Iyits te PnOmIsti Mifto ’ ta Imp ”’ ’’ Pim Reriston Itoputil V . 1 1 . 7 . C.IdOinML” Stat. of Calitenla Mr Resources Rend. Marcb teal; aft Protsm Plan teth. tepestal VaHI ft’ -”” Psettr a1ss. Mine Sources App ouesast $ludy. Deceit R ..antL tnsStuts, D- ’- - ei * agei. ------- 3340 Federal laglater / Vol. 58. No. 5 / FrIday, January 8, 1993 F’ Rules and RegulaU s ‘ • end of 1992. In addition. EPA and CARB will be conducting a PM-1O source apportionment study In the imperial ValleyfMexlcalI air basin In cooperation with the Imperial County Ala Pollution Control District and the Seantary of Social Development In Mexico. The objectives of the study are to: (1) estimate the spatial and temporal distributions of PM.1O concentrations In the Imperial Valley and Me dcall; (2) apportion PM.1O concentrations to source e?n c 4ons; and (3) estImate muss. border transport of PM.1O. The monitoring portion of the study began on March 10. 1992. Nogoies. Adsona. The EPA L i not taking final action to reclassify the Nogales nonatf inment area at this time. Despite the fact that the State of Arizona has not yet submitteda PM-jo SIP for Nogales. previous studies b the Arizona Department of En’rvnmental Quality indicate that transport from Naples. Mexico. may significantly contribute to elevated PM-b levels In the nonattainment area. ’ 3 As such, the area may qualify for exclusion from reclassification as serious under section 1793(d). On December 16,1991, the EPA Regional Mivthi atrator for Region DC sent a letter to the Governor of Arizona notifying him of the State’s failure to submit a SIP for Nogal. , This notification started the 18-month linieclock which will result in the Imposition of sanctions If EPA does not receive a SIP Is.. section 179(a) of the Acti. The Arizona Department of Environmental Quality intends to submit a SIP by the end of 1992. They also planned to Initiate a project in the summer of 1992 to provide additional emissions inventory data and source contribution estimates for the Nogales The SIP’. submitted for thq re .Ii lng 5 areas contain control strategy demonstrations purportth& to show that the NAAQ$ will be attained by December 31, 1994. 1 Agoucy Is reviewing the public received for thes. areas, as well th. SIP control -strategies end, as staied se4ously. will make a determination “ n1ng reclassification upon iil .making action on the SIP’.. Perthu’ discussion of these areas follows below. Yjamath Foils. Oregon. Based upoe. EPA’s preliminary review of the PM.10 S W submitted In reapoma to the. November 15. 1991 SIP requirement. EPA. at this time, supports the State s “PtsU ay tn ssdpdea eIcsu. dZxteat @1 thi 4çj , PM4O Prc ’ MLoea in i of tie lii QuaIft S.ctimW determination that the nonatt.in nent area will practicably attain the NAAQS by December 31. 1994. One comment was received from the Oregon Department of Environmental Quality opposing reclassification. The commenter asserted that f40 SIP submittal Includes the necessary air pollution control provisions and a demon*atlon that attainment of the NAAQS by December 31, 1994. LIbby Montana. Based upon EPA’. i’relimlnary review of the area’s PM.10 SIP submitted In respons. to the November 15.1991 SIP requirement, EPA. at this time, supports Montana’s determination that the Libby nonattalnment area will practicably attain the NAAQS by mber 31, 1994. The Montana Department of Health and Environmental Sciences submitted comments opposing reclassification. The commenter contended that the SIP contains an adequate control strategy. Including point source permit modification, and that it would be premature to reclassify at this time. 0 5 ! esby. illinois. Based upon EPA’s preliminary review of the PM-1O SIP for this area, EPA at this time supports the State’s determination that the nonatt.lnment area will practicably attain the NAAQS by December 31,, 1994. The EPA Ii currently evaluating the S W and will make a final determination ebout reclassifying the area because It cannot practicably . itain when EPA takes formal astlonon the submittaL Paul Spur. Arizona. R d upon EPA’s preliminary review of the SW submitted for this area, EPA, at this time, supports Arizona’s determination that the nonattainment area will practicably attain the NAAQS by December 31, 1994. The Arizona Department of EnvIronmental Quality opposes r,rl . ..fficadon based upon EPA’. design value criteria (see 38 FR 588* Nov. 21.1991) end ltsbelief that EPA should review the SW before deciding to reclassify the ares. One comment received from a prlvatd corporation adds ihat significant Improvements to air quality have already been made with the Imposition of control measures as Indicated by the data front 1988 through the third quarter of 1991. Further control measures, the commenter are outlined in the SIP revision. Utah County. Utah. Following EPA preliminary review of the PM.10 SIP submitted for this area In response to the November 15. 1991 SIP requirement, EPA. at this time, supports Utah’s determination that the nonattainment area will practicably attain the NAAQS by December 31. 1994. The State of Utah’s Department of Environmental Quality opposes reclassification based on Its belief that the PM.b0 SIP revisIon provides for emissions reductions sufficient to demonstrate attainment by December 31, 1994. The comrnenter states that EPA should be fair In giving Utah County the opportunity to how such aft a inment VI. i4 of Ra ,4j,i..ffir .14n Additional SW revisions are required under section 189(b) of the Ad for the nonatfalnment areas that are r,rlaas lfied to serious. First, regulations requiring the use of best available control measures (BAQA), Including “the application of best available control tecbnolop (BACT) to existing stationary sources.’ must be adopted and submitted to EPA withIn 18 months after the area Is reclassified to serious (section 189(b)(2) of the Acti.” The 8A04 requirement must be implemented wIthin 4 years after the area Is reclassified (section 189(bX1)(B) of the Acti. Second. the State must submit a SIP revision wIthin 4 years after rrla.alncatlon of the area (within 18 months after reclassification far failure to attain) that Includes a demonstration that the plan will attain the PM-1O NAAQS by December 31. 2001 Is.. sections 188(c)(2), 189(b)(1)(A)(I), and 189(b)(2) of the Act). ’ 5 Third, . .ctI . . , 1e9(bX3) of the Ad provides that “far any Serious Area. the terms ‘major scums’ and ‘major stationary scums’ Include any stationary source or group of stationary sources located within a contiguous area and under comman control that emits, or has the potential to emit, at least 70 tons psi year of PM-lO.” This provision requires, among other things, emaller new and modified sources (those with the potential to emil 70 tons per year or greater, rather than 100 tens par year or “Au with kAOdmi RACT, B CT I sa w it at the o,u.thlii 5 ft I .qnbumset Th.MCr e.aIly ruts,. w the licbaeialctl cantiol ‘ss wblcb .pply lisp i ” 1 ’y m ,cus Thiii, aafi e.. BAØ4 baits ImplidtIy L4 “Ahaigu,uly. thsstst. east L- _ -.liets that - i sI -”by ‘ ‘ 31.3001, Is inpuac&abli. thit thu pim pmutibi far ati.Ia ”t by th. most mpsdItIess ailimate. l. pimo . ( bet a . mole th S ,uai sibi ib..al. ma date). md ibsi — “ ‘ 1*.) auth. £d requtismab b..ts m — “r .1 the “‘ dab bse.bsua ut1th l (Li.. thu plan tssiu th. mast uwi an , - this a ,. Indudsd Is thu “ p’ ’4ci plan at say Slate ,,.i.. acbfamd Is pisata. In my Slat. and ma Imoibly be Implaiant.d In ibi irmilaus matica taS (bKIKA)W) alike Acti. Me. that iii md i i u ” Iea(bXZ) alibi Act followIng failure li attain must sabmit “ W’ ’ dmoaus attsa. within 15 monibsaftis p ”—’ caUon to oan lies madon ,el(bX2) alibi Acil. ------- Federal Register I Vol. 58. No. 5 / Friday, JanUary 8, 1993 / Rules and Regulations 3341 greater) to obtain section 172(c)(5) of the Act construction permits which include requirements to comply with lowest achievable emission rates and to obtain emission offsets (see sections 172(c)(5) and 173 of Acti. Where an ares Is being reclassified to serious. It may be reasonable for States to consider the relationship of RAQA to BACM for the affected sources. The EPA discussed this relationship In the proposal for today’s action (see 56 FR 58660-58661; Nov. 21. 1991). The EPA anticipates that BAC ,i for area sources will generally be additive to or not significantly Incompatible with RAQ4 for these sources.’ 6 Therefore, the moderate area SIP’. for the areas which EPA Ii reclassifying should continue to Implement the requirements for the application of RAQ.1 to appropriate sources. After reclassification to serious, additional regulation, which require BACM must be adopted and submitted within 18 months and implemented withIn 4 years. as stated above. V I I. Miscellaneous A. Rxeculive Orders Under Executive Order 12291, EPA has determined that this action Is not “major” because rerla.affication of the areas does not have-an annual effect on the economy of 3100 mflhloucr more, would not cause a major lnaeeee In prices, and would not have a ‘ ‘ 18 cant adverse impact on competition or the ability of United States enterprises to compete with foreign enterprises. This notice and the November 21, 1991 prepcea] were suborn tied to the Office of Management and Budget (0MB) as required by Executive Order 12291. Any written comments from 0MB and written EPA responses to those comments are included in the docket Simibirly, any written comments from 0MB regardIng today’s final action, and any written responses, have been placed In the docket This action does not contain any Information collection requirements subject to 0MB revIew under the Paperwork Reduction Ad of 1980 (44 U.S.C. sections 3501 it seq.). A federalism essuiement under Executive Order 126121* not required for thi, action since this action was directed under section 188(b)( 1XA) of the Act. B. 1Ieguiator FI.xthilhtyAct Under 5 U.S.C. section 605(b). the Administrator has certified that redeslgnatlons do not haves uigi ” 8 ’ ”t economic Impact one mahetantlal number of small entities (see 46 FR 8709). Because the regulatory Impact of re .¼euificatiots under sectIon 188(b) of the Act Is no different rthø. itively from that associated with ilaiilgn.tlons, such actions are also not cpscted to have a gnIficant Impacts an email entitles. S I i 4O R Part S i Air pollution control, National perks, Wilderness areas. 1 ted: November II, 1992. William K. billy, Adminimutus’. 1. The authârlty citation far part 81 continues to read as follows: AatheriIy 42 U.S.C. 7407. 7501.7515, 7601. 2. SectIon 81.30515 amended by revising the tabl, for CallIassda—Pt410, to reid as follow.: •si. cj 1 ,,j. , a a a a S CAUFCRNIA.—PM-10. Nonallakunsnt AreaS . mm . . 0_ _&_ . — --. --. . Ii s T e — 0mm Valsy ,,i.n&., ama H . tWO .ieoecios Sot Dmmth . 8.astss Valsy mm tII tWO MowCoidp MaI isp t uJv*l ou, iviaso ilflMO ivisee N.tl..U.L...,4 . P1 .tlU. * PL.LL..,* , . - WIWV O tin . uj . Wdidss Ss Ut, .ki asj ... I Sialonsi-12, 17. sid lSdT 1 ...a.N41748 , rei 0. 3 253 i at T .,....J t , 739, 5E . C. Ssatoiu 26 -3 5 at To. .mJ 118. aS79, I Ssalots 1-lid T.... . .ut T48, es7(; oat 3SdT . . T* SE . Fmow. Kim, mi Tu , Sot t, “— —. iOs S en Jas 5 .ii Vuk .S..it, mm dt Los _s, Danu u Ss:ati Coal Mr - - ds Come - Ccaste Valsy mm . , tu sb Valsy , .L.J.., mm Stats - 11 11600 1111050 1111050 11,5550 11,1600 . N.. .J.L. .al P&..LI..... 1 N....... * N.....UJ.....IM %ds d1 0’I 05V1aS eiIS 005553 5 5053 8s uu . Sidses. . i s bn. IhLLJL . ‘Tha EPA iiii dI- usd tO. idadosibip bstius RAQ4ssd BA 4 to the “Gusant - toThi. I ottO. 1990 a A Ad Aoioadmsnlu. ’ 37 FR 13344 (April 15,1992). S&ilIy. EPA ladlalud that IS say be r— 4 , rot Status amtainlz otim this will be rsthuIB.d a, sutosa to e d . ths psdblKly of aAad and R .4CT with BAQI aed BACT that ulduatsip will be Iapl .antud ando lb. lais uoa plans b.th.. uius . Thu A “ “ “ d that Status taLnIn$ such cam saud sat . .q ..I . su$oi a, nJ ayitsui b. . 4R . s k and smucus to JLrLA whir. thu y dsuossmm that ach___ Os llrffiP lf I , tammpsdbls with tb . ap p 1 ” of ------- 3342 Ve& Zeur 1 VeL 5S No. 5 I P!4day, Jieeary 8, 1993 / 1es . . . s.S .e3 IssmeQdedW ISI re 4iiug the i. rN,aia.-PM-IO. . . . . N fC4IOW$ Na . .—PM-IO No.dum. c,a As • . . o..i,..&.,. r- - r -__ o . — .. all c w p__ $ Ii s 212 R Suiw 11fl . • - 11 MW JI 11 i d WI..J* • r ij -* . “- 11 11W - - - - ia S S S S U -37S Pi P4 14-31.45 sal SU.LIIS coot r ------- 1C908 Federal Register I VoL 57, No. 90 / Friday, May 8. 1992 I Notices G noriattainment areas was reviewed or completeness and, on October 3, L991. EPA denied the request for parallel processing because certain required rornponents were absent or provided Insufficient detail. On October 9, 1991, PA received additional draft proposed rules from the illinois Division of Air Pollution Control for the Granite City moderate PM—tO nonattaliunent area. On October 10,1991, a letter was sent From Region V’s Air and Radiation Division Director to the Manager of the Illinois Division of Air Pollution control, explaining the general procedure EPA intended to follow in addressing any tate failure to submit SI?. for the nitial moderate PM—la nonattainment areas by the statutory deadline. Illinois lid not submit a complete SIP revision ror the McCook. Lake Calumet, and ranite City moderate PM-la onattainment areas in response to the Dctober 10.1991 letter. Therefore, on December 17,1991. EPA made a finding. pursuant to sectIons 110(k) and 179(a) of. he Act that the August * 1991 and the )ctober 9,1991 submittal. were ncomplete and, therefore, Illinois failed 0 submIt a required complete EM-b uP for the McCook , Lake nient, and Dranite City PM—to nonattainnient areas. Fndiano On October 8, 1991, a letter was sent bern Region V’s Air and Radiation Division Director to indiana ’s Acting sslatan Cnit mI sIoner, Office of Air 1anãgement. explaining the general procedure EPA Intended to follow In addressing any State failure to submit l?s for the Initial moderate PM-b wnattalnment areas by the statutory leadilne. On December 17, 1991. EPA niÜaled thI process by finding. pursuant to section 179(a)(1) of the Act, hat Indiana had failed to submit a SIP o meet the statutory deadline of Jovember 15,1991 for the Lake County and Vermillion County moderate PM4O onattainment areas. - tlich gan On October 1, 1991, a letter was sent bern Region V’s Air and Radiation Division Director to the Director of 4ichlgaa’. Division of Air Quality. Department of Natural Resources, ixplaining the general procedure EPA ‘.tcr.dcd to follow In addressing any e failur ’ to submit SIP’. for the .t a& mod’ -ile PM—la. nonattainment isna by tht tatutory deadline. On i,vember 19. 1991. EPA received revisions to the Michigan SIP for the Wayne County PM —b nonuttaimnent area. The EPA reviewed the submittal [ or completeness pursuant to section 110(k)(1) of the amenddd Act and found that the submittal did not contain many of the required elements, but rather consisted primarily of a commitment to adopt the required elements. The EPA does not believe that this submittal Is appropriate for a conditional approval under section 1bO(k)(4). Therefore, on December17, 1991. EPA sent a letter to the State of Michigan finding. pursuant to sectIons 110(k) and 179(a), that Michigan failed to submit a required complete FM—tO SIP for the Wayne County moderate PM-b nonattainment area. . - Montana On November 1. 1991. a letter was sent from Region VI I I’. Regional Administrator to Montana’s Governor expinining the general procedure EPA Intended to follow in addressing any State failure to submit SIP’s for the Initial moderate PM-to nonattainment areas by the statutory deadline. On December15, 1991. EPA Initiated this process by finding , pursuant to section - 179(a)(1) of the amended Act, that Montana had failed to submit a SIP to meet the statutory deadline of November15, 1991 for the Butte,. Columbia Falls, and Missoula moderate PM—1O nonattainment areas. Pennsylvania On October11, 1991. a letter was sent from Region hr. Air. Radiation, and Toxic. Division Director to the Director of Pennsylvania’. Bureau of Air Quality Control explaining the general procedure EPA intended to follow in addressing any State failure to submit SI?. for the Initial moderate EM—b nonattainment areas by the statutory deadline. 01) December1 1991. EPA. Initiated this process by finding, pursuant to section l79(a)(1) of the • amended Act that Pennsylvania had failed to submit a SIP to meet the statutory deadline of November 15, 1991 for the Liberty Borough moderate PM-tO nonattalnment area. • Pizea ’toPdco On September 26, 1991, . letter was sent from Region IF. Air and Waste Management Division Director to the Chairman of Puerto Rico’s Environmental Quality Board explaining the general procedure EPA intended to follow In addressing any State failure to submit SIP’s for the initial moderate PM—b nonattainment areas by the statutory deadline. On December18, 1991, EPA Initiated this process by - finding, pursuant to section 179(a)(1) of the Act, that Puerto Rico had failed to submit a SIP to meet the statutory deadline of November 15, lD9VTor the Cuaynabo moderate PM—b nonattalnnaent area. : - IV.Coac lns lon The EPA has made findings under section 179(a)(1) of the Act that the States listed In Table A failed to submit a plan. plan element or a complete plan, as required under sectlo 189(a)(2) and 110(k) of the Act. . Authoofty ’ 42 USC. 7410(k). 7419(i4 75w ,. 7509(a), 7500(b), 7513,75134.). and 7001. Dated .Msy4.19B7 ,...i William AuistaatAdatinistretarforAfrcnd Radiation. TABLE A—STATES FOUND TO HAVE FAILED TO SUBMIT SiP’S OR COMPLETE SIP’S PVR ThE FOL .OWING RESP TIVE MODERATE PM-1O - NoNATTAINMENT AREAs’.-.;. Stats A.es at a09ee’ catsoit • .. CoIem ‘ ‘ Cwmsc * Idaho - - N09 1 ‘. lidsee_______ .. U id gsn Mw o nns . Pe__ onte Rtes ‘ wtaI Vdsy. ee Vats . Bee JesqiWs V, SswIss .v_. A cay t, , P.oa Tat. katd New Newe.- PSiuI int’ P -”—” - Sand. -t i:. ’ ’ L*e mat &w s Coy. 4ce . C idy. VarvdIIIsn C o Wa ie Coudy. Bin CokrOSi • — Gw. . ‘ For . IflJsmy . the U legal boimdañss Kr me wets sd s.a.J Si Siday’s nokas itwe , hoen Sited. The , .J........s Si Si Uda naSee we general wal n d Si ooweis as - Kr the U — toundwlet The U legal bcuidwles we eel fwth at SOFA 50094 5 1709-60851 (Nsvsm. bet 8. 1091) , Si ciedi EPA lomially coatled the dodwistons and ckae*cs5one or etdi c i Vu 5450 PM-b wodei h .’..tSiiwfleI* Weal. ‘ 11* U legal bouidates Kr lie Pwl ii Dou s , ..k ie we.” we Sited Vi lii P1ousn Ir 0, 1091 Fsdend R491.LJ1 naVe, w w ____ Cairn (ses 58 FR 58719). For PM-b SiP , .. Von and a nited — the Slate lies Psated Vu w e e on okut Vied . .,4.,.Il PM-ID lusufleminied weal Ø’wi B nr sat Dau ) Si edays nodee. EPA Si sunoumatig Si led due Beds of Adasna has Ued Is aibiit• veed PM-ID SIP Kr the 0ou as poiSon of eVe •T1u U Sisal bowdwies Kr Vi . wet ci , ,n -. ,. , we Sited Si d s NomuiLar 9,1591 Fadsial Beats. let nodes amlet Cook Cowdy on edna. Lpaius Ta .ed u (use 58 FR 68753). _____ 4 The Sal Sisal boumdw$es Sir des wee of co..cem are listed Ii the Noveir er 8 1991 F.dsiat Reals’ 1w notIce usator Cook Cowuly on item b (see 58ffi • 1t i U Ieg boundoiles (or die area of c .noem we kited Si tf P4oomVur 9, 1991 F,.d ,,ruI Regis. ts r iioooe w : M.gtle..j Cowoy (see 56 FR 568 . r (PR Dec. 95-10810 Plied S-7-42 0 45 amj ‘ -‘a coos us.-ss ’ ------- Federal Register I Vol. 57, No. 90 I Friday, May 8, 1992 I Notices 19907 2. Provisions to assure that reasonably ailable control measures (RACM) .iicluding reasonably available control echnology—RACT) for the control of PM-ia are Implemented by December 10, 1993 Isee section 189(a)(1)(C)1. 1 In addition. States are required to submit a new source permit program meeting the requirements of Part D. Title I of the Act, requiring permits for the construction and operation of new and modified major stationary sources of PM—la (including, as appropriate, PM—la precursors) (see section 189(a)(1)(A) and 1B9(e)J. A SIP revision meeting this requirement Is due by June 30, 1992 for - all of the Initial moderate PM-b nonattalnment areas (see section 189(a)(2)(A)J. The Act establishes specific -‘ consequences Ifs State fails to meet certain requirements. Of particular relevance here are sections 179 and 110(k). Section 179 contains the orovislons for mandatory application of ianctlons. Section 179(a) sets forth the iarious findings upon which application’ a sanction Is based. The findings that, or a nonattainment area, a State has railed to submit a plan or one or more lements of a plan required under the ct or has failed to make a submission or such an area that meets the minimum ‘mpleteness criteria established under . ction 110(k) (see 40 CFR part 51, ppendlx V,as amended by 58 FR 42218 August 20. 1991)1 are the findings relevant to this announcement. Today, EPA Is announcing Its previous letermlnatlon that nine States have railed to submit a required plan or plan element for one or more of the Initial noderate PM—la nonattalnxnent areas in hose State. and that two States have railed to submit a required plan or plan element for such areas satisfying the omple1eness criteria. Under section 179(a), the Administrator must Impose ne of the sanctions specified in section 179(b) 18 months after the finding unless IPA determines within that 18-month period that a complete submittal has been made. If the State still has failed to nake a complete submittal after 24 nonths, then EPA must impose both. ianctlons specified in section 179(b).. Finally, section 110(c)(1) has also been amended to require that the . Administrator promulgate a Federal Implementation plan withIn 2 years after a finding that a State has failed to submit a required plan element or plan or finding that a required plan or plan. element does not satisfy the completeness criteria; .:. II. States for Which EPA Is Making Finding .-p ’ Arizona Administrator to Colorado’s Governor explaining the general procedure EPA intended to follow In addressing any State failure to submit SIP’s for the initial moderate PM—la nonattainment areas by the statutory deadline. On December18, 1991, EPA Initiated this process by finding, pursuant to section 179(a)(1) of the amended Act, that Colorado had failed to submit a SIP to meet the statutory deadline of Novehiber 15,1991 for the Aspen, Denver, Canon City, Lamar, Pagosa Springs, and Telluride moderate PM—ia nonatt t?flent areas. On August 30,1991. a lette; was sent from Region IX’s Air Division Director to’ Arizona’s Director of the Office of Airs’ - Connecticut Quality explaining the general procedure EPA Intended to follow In addressing any State failure to submit SIP’s for the initial moderate PM—la nonattaininent areas by the statutory’ deadline. On December18, 1991, EPA initiated this process by finding, pursuant to section 179(a)(1) of the Act, that Arizona had failed to submit a SIP to meet the statutory deadline of - _____ November 15, 1991 for the Nogales and Douglas PM—la nonattalnment areas. California On August 30. 1991,a letter was sent from Region Dl’s Air Division Director to the Director of the California Air Resources Board explaining the general procedure EPA intended to follow in . Id o o addressing any State failure to submit SIP’s for the Initial moderate PM—b nonattaininent areas by the statutory deadline. OnDecember 10,1991, EPA initiated this process by finding, pursuant to section 179(a)(i) of the Act, that California had failed to submit a SIP to meet the statutory deadline of November15, 1991 for the Searles Valley, San Joaquin Valley, Imperial Valley. and Owens Valley moderate PM—b nonattalnment areas. The EPA subsequently received PM—la submittals for the San Joaquin Valley and Owens Valley moderate PM—la nonattalnment areas from the California Air Resources Board. The San Joaquin SIP submittal was dated December 24, 1991. and the - Owens Valley submittal was dated January 0.1992. The EPA Is currently reviewing the San Joaquin and Owens Valley plans for completeness pursuant to section ilO(k)(i). If EPA finds the plan - complete, then the State’s deficiency - under section 179(a)(l) for these areas will be corrected, and the sanctions :. process initiated for these areas pursuant to section 179(a)(1) will be stopped at that time. Colorado On November 1. 1991. a letter was sent from Region VI I I’. Regional - - On October 1,1991. a letter was sent from Region l’s Director of the Air, Pesticides, and Toxic. Management Division to Connecticut’s Department of Environmental Protection explaining the procedure EPA intended to use in addressing any State failure to submit a SIP for the Initial moderate PM-b nonattalnmnnt areas by the statutory deadline. On December18, 1991, EPA Initiated this process by finding. pursuant to section 179(a)(1J of the amended Act, that Connecticut had failed to submit a SIP to meet the statutory deadline of November 15,1991 for the New Haven moderate PM—b nonattntninent area. On August 21, 1991, a letter was sent from Region X’s Regional Administrator to the Administrator of the DIvisIon of Environmental Quality of Idaho’s Department of Health and Welfare explaining the procedure EPA Intended to use in addressing any State failure to submit PM—la SIP’s for the Initial moderate PM—b nonattainment areas by the statutory deadline. Additionally, on September 9, 1991. the Chief of EPA’s Region X Air and Radiation Branch sent a letter to the Acting Chief of the Bureau of Air Quality of Idaho’s Department of Health and Welfare, further explaining the procedure. On December18, 1991, EPA Initiated this process by finding, pursuant to section 179(a)(1) of the amended Act, that Idaho had failed to submit a SIP to meet the statutory deadline of November 15, 1991 for the Pinehurst, Pocatello, and Sandpoint moderate PM—ia nonattainment areas. Illinois On August 16, 1991, the EPA received revisions to the Illinois SIP for the McCook. Lake Calumet, and Granite City moderate PM—jo nonattalninent areas. In that submittal, the State requested parallel processing of the draft rules. The submittal for these PM— ‘Not, that some or th. general nonattah. ,t pian provisions specified In aec 172 (c) me Inextricably related lath, provision. specified hi the P14-10 subpart and due no November15, 1991. Per w ’ —p 1 , section 172(cXl) (requiring provision. hi IsmenI RMN Including RACT) must be read Inuuther with the section 159(IXIXC) RAOtI iequik t. Similarly.. campnuhensive. accurate. Inventory of actual emission. (section ‘2(c 3il is tnte rII f an adequate demonstration ecttc I aK1)(BN. These general onattaInment rovlaion. must be reflected In or subsumed within the relevant P14-10 specIfic submittal. due November 15. 1591. ------- b Federal Register ! VoL 57, No. 90 / Friday, May 0. 1992 1 Notices O nonaita*ninent areas was reviewed For completeness and, on October 3, 1991, EPA denied the request for parallel processing because certain required component, were absent or provided Insuffident detail. On October 9, 1991. EPA received additional draft proposed rules from the illinois Division of Air Pollution Control for the Granite City moderate PM—to nonattainment area. On October10, 1991, a letter was sent from Region V’s Air and Radiation Division Director to the Manager of the illinois Division of Air Pollution control, explaining the general procedure EPA intended to follow In addressing any State failure to submit SIP’s for the initial moderate PM—b nonattalnment areas by the statutory deadline. Illinois did not submit a complete SIP revision For the MCCOOk. Lake Calumet. and Granite City moderate PM—to nonattainment areas in response to the October10, 1991 letter. Therefore, on December 17. 1991 , EPA made a finding, pursuant to sectIons 110(k) and 179(a) of the Act, that the August * 1991 and the October 9, 1991 .vbctittala were incompLete and, therefore, Illinois failed to submit a required complete PM—to - SIP for the McCook, Lake Calument. and Granite City PM—to nonattainment areas. Indiana On October 8, 1991, a letter was sent From Region V’. Air and Radiation Division Director to Indiana’s Acting Assistant C mn Iasioner, Office of Air Management, explaining the general procedure EPA Intended to follow in eddreselng any State failure to submit IFs for the Initial moderate PM-to nonattainment areas by the statutory - eadllne. On Dece iber 17,1991, EPA. Lnitiated thig process by finding. pursuant to section 179(a)(1) of the Act. that Indiana had failed to submit a SW to meet the statutory deadline of November 15, 1991 for the Lake County end Vermillion County moderate PM4O conattalnment areas. -. F1fich an On October 1, 1991. a letter was sent From Region V’. Air and Radiation Division Director to the Director of Michigan’s Division of Air Quality, Department of Natural Resources, rxpialnlng the general procedure EPA i r r.ded to Follow in addressing any re failure t submit SIP’ . for the .. izI m d’ule PM-Ill nonattainruent arena by thit. statutory deadline. On Nbvember 19,1991, EPA received revisions to the Michigan SIP for the Wayne County PM—b nonattainment area. The EPA reviewed the submittal For completeness pursuant to section 110(k)(l) of the amend d Act and found that the submittal did not contain many of the required elements, but rather consisted primarily of a commitment to adopt the required elements. The EPA does not believe that this submittal Is appropriate for a conditional approval under section 110(k)(4). Therefore, on December17, 1991, EPA sent a letter to the State of Michigan finding, pursuant to sections 110(k) and 179(a ), that Michigan failed to submit a required complete PM-b SIP for the Wayne County moderate PM—to nonattalnment area, Montana On November 1,1991, a letter was sent from Region Vms Regional AilmI& frator to Montana’s Governor explaining the general procedure EPA Intended to follow in addressing any State failure to submit SIP’s for the Initial moderate PM—la nonattnlnmpnt areas by the statutory deadline. On December19. 1991, EPA Initiated this process by fln”ing , pursuant to section 179(a)(1) of the amended Act. that Montana had failed to submit a SIP to meet the statutory deadline of. November15, 1991 for the Butte,. Columbia Falls, and Missoula moderate. PM-b nonatt Inment areas. Pennsylvania On October11. 1991. a Letter was sent from Region ill’. Air, Radiation, and Toxics DMston Director to the Director of Pennsylvania’s Bureau of Air Quality • Control explaining the gene J - procedure EPA intended to foUow in addressing any State failure to submit SW. for the Initial moderate PM—iD - nonattainment areas by the statutory deadline. Oz December18, 1991, EPA. initiated this proces. by finding, pursuant to section 179(a)(i) of the • amended Act, that Pennsylvania had failed to submit a SIP to meet the statutory deadline of November 15,1991 for the Liberty Borough moderate PM-iD nonattalamant area. . Puerto Alan On September 26,1991. a letter was sent from Region fl ’s Air and Waste Management Division Director to the Chairman of Puerto Rico’s Environmental Quality Board explaining the general procedure EPA intended to follow In addressing any State failure to submit SIP’s for the initial moderate PM—ia nonattainment areas by the statutory deadline. On December16. 1991. EPA Initiated this process by -, finding, pursuant to section 179(a)(1) of the Act, that Puerto Rico had failed to submIt a SIP to meet the statutory deadline of November15, ballot the Cuaynabo moderate PM-la nonattalnmant area. W.Condusiou The EPA has made findings under section 179(a)(1) of the Act that the States listed In Table A failed to submit a plan, plan element, or a complete plan as required under section 119(s)(Z) and 110(k) of the Act. Authedty 42 US.C. 7410(k), 741 9 (m), 7512. 7509(a), 7509(b). 7515, 7513a(s), and 7501. DatadMay4.1502. 1j wffi i s Ross abe g,.. MslstoidAdministhztorforAfrand Radiation. - TAnkS A—STATES FOUND - TO HAVE F*n.an TO SUBMIT SIP’S OR CoMPtETE SIP’S RTHE FOIJ,.OwINo RESPWTIVE MODERATE PM-ID NONATTAIBMENT AREAS’ ts01 . - aim. , S i am M ‘ M ai r e ti- - 8 1 — Vodsy. 9.edm v — Mpss, Oswdsr im taiw, . Psgoss Tof. P - Sis ‘ Late Mts car. I- Wrgne Coumly. ms. CaSaodSi Fs Mim — M Seds * For ilDJ. , tha *4 Is bCim dedis I i’ 115 ames e&*simd Si mdey’u Imis n teen Muted. Ths . J.........s Si I i Ide ISi9. sr eensr01 and S4 ..dod Si o a1s on m dS18s 9. *4 — baimdm.t The *4 Si’l bma dm.s us m l faith aISI FR 55O54 5670945158 (Noesm 6. 1991) . Si utedi EPA Iommly CedIISd 9. ded na1sns aid i.I 4Ofl$ fat 55011019. S PU-lO Jsrml , ...U.I..ai.i1 a ‘Th. sa bounduies let Sm PU4 9.t Ooua’av ptew9. am.” as Muted Si 9 . 6 . 1891 Fedsid Reutsiuil oi midst Oeddss co .ls (see 56 FR 56119). For PM-b SIP Ion and 11 n i& piapoadS, 111 Stets his Pmlud 11. wee on - W9. . ,..4...M PM-1O nomatlaiimul uess 9 ud Spit d Un ’ * Si Siday’s redo,. EPAU avm.a m de I i i Stete 01 Aibons his MInd (a sibyl a rWsd P51-10 S b 115 On1 I potIon elide , I , . ...L, ass, ____ • ml *4 fae ba iaidaues 515 stSS 01 as Sited Si d i. N leer 1,1991 F.Jsiid Res• noSes imder eS Osmay on mum a, L uns T mul * (see 56 FR 56753). _____ • Ths *4 legi bowi f no là use c i s te Mated Si the 8 199 ? Foi led RIots- tot nolice imder Cooli Cowity is dam b (sos 5OFR i.g boundailes I cr 515 stOS at COnCur. . eta Sited Si th Novelither 6, 1991 Foised RsQIs. tsr nodes w t A5ea, f Coiady (see 56 FR 56823). (PR Doe. 02-10616 P lIed 5-7-02:6.45i . ) rtji ’ia coos - ------- I9906 Federal Register / Vol. 57. No. 90 I Friday , May 8. 1992 / Notices (44 U.S.C. 3501-3520) requires that :ertain information collection requirement. be approved by the Office of Management and Budget (0MB) before Information is demanded of the public. 0MB has issued a final rule on the Paperwork Burdens on the Publlt (48 FR 13866) dated March 31. 1983. Ample opportimity is provided in the proposed rules for the Interested public to - participate with the Power Marketing Administration in the development of rates. Nevertheless, this is at their sole selection. There is no requirement that members of the public participating in the development of the P-DP firm power and firm and nonfirm transmission - service rates supply information about themselves to the CovernmenL It follows that the P-DP finn power and firm and nonfirm transmission service rates are exempt from the Paperwork Reduction Act. ENViRONMENTAL !VAWATION In compliance with the National Environmental Policy Act of 1969; Council of Environmental Quality Regulations (40 CFR parts 1500 through 1508). and DOE guidelines published at 52 FR 47882 on December15, 1987. Western conducts environmental evaluations of the P-DP firm-power and firm and nonflrm transmission service rate adjustments and develops the appropriate level of environmental documentation prior to the implementation of any rate adjustment. Issued at Golden. Colorado. April 27. 1992. William H. Clagett. Administmtor. IFR Doc.92-10858 Filed 5-7-42. 5.45 am) DIWNQ CCCI 146 541-M ENVIRONMENTAL PROTECTION AGENCY (OAR—FRL-413143 State implementation Plans for Nonattainment Areas for Particulate Matter AGENCY: Environmental Protection Agency (EPA). ACTION: Notice announcing findings of failure to submit required State Lmpleme’tatf on Plans (SIP’s) . 5804MARY: The EPA gives notice that It made a finding, pursuant to sections 129(a.) t) ’ and liO(kJ the Clean Air Act (Acr) as amended ii .990 (Pub. L No. 101-549, November 15, 1990), 42 U.S.C. 7509(a)(I) ançl 7410, for each State listed In table A. The EPA has determined that each State has failed to submit an implementation plan, plan element, or “complete plan” (a submission satisfying the minimum criteria established under section 110 (k)(i)(A)J for particulate matter lee. than or equal tolO microns (PM—b) as required under the provisions of the Act. This notice addresses the requirement under section 189(a)(2)(A) of the Act that each State shall submit the plan required under section 189(a)(1) wIthin 1 year of the date of the enactment of the Clean Air Act Amendments of 1990 (i.e., by November 15. 1991) for areas designated nonattaLnment under section 107(d)(4), except that the provision required under section 189(a)(1)(A) relating to new source review requirements shall be submitted no later than June 30. 1992. This notice announces the rmdings made in December 1991 via letters sent by the EPA Regional Administrators to 11 States notifying each of its failure to make a required PM—It’ SIP submittal or Its failure to submit a complete PM—b SIP submittal. The letters triggered the 18-month thneclock for the mandatory application of sanctions under section 179(a) and the 24-month tizneclock for promulgation of a Federal implementation plan under section 110(c)(1). FOR FUPTHER INFORMATION CONTACT General questions concerning this notice should be addressed to Andrew M. Smith. Air Quality Management Division (MD—15), U.S. Environmental Protection Agency. Research Triangle Park. North Carolina 27711, (919) 541—5398 orFFS 829-5398. For questions related to a specific area, please contact the appropriate Regional Office listed below. Regioni offices States Regional offices Slat.. • Gay G edun .. Chief. M To,dcs and Ra etion Breach, Michigan. V — EPA Region V. 7? West Jad on S e Chicago. IL 60604. (312) 353-855P, FTS • 353-8559. •Douglss N. 814., Chief. Ak Cuiorsdo, Programs Brunch, EPA Uontaea. Region VIII, 999 18th SPest, 0mw Ptac.-&ea 500. • 0mw, 80202-2405, (303) 293-1750 FTS 330- . 1750. • David L Csfldn.. Chief. Ak A,tmes. Calfonda. Programs Brunch. EPA Region IX. 75 Hawthorne Skeet. San Francisco, CA • 94105. (415) 744-1219; FIS 484-1219. • George Abel, Chief, Ak Pro- grams Branch. ‘EPA Region X. 1200 StethI Avenue, Seat. idaho. tie, WA 98101, (206) 442- i275 FTS 399-127& SUPPLEMENTARY INFORMAT1ON L Background On March 15. 1991 (56 FR 11101). EPA announced those areas of the country designated nonattainment for PM—b by operation of law upon enactment of the 1990 Amendments (see sections 107(d)(4)(B) and 107(d)(2) of the Act). On August 8. 1991 (58 FR 37654). EPA published a notice correcting some of these designations and further explaining EPA’s rationale fot the designations. The EPA also announced on March 15, 1991 (56 FR 11101) that all of the areas designated as nonattainment for PM—b by operation of law upon enactment of the 1990 Amendments were classified as moderate nonattainment areas at that time (see section 188(a)). Those States containing areas designated - nonattaimnent and classified as moderate for PM—b upon enactment of the Amendments were required to adopt and submit to EPA a SIP for those areas by November 15. 1991 (see section 189(a)). As a general matter, all of these initial moderate areas are required to submit a SIP meeting the requirements for nonattainment areas identified In section 172 of the Act and the requirements specific to PM—b in subpart 4 of Part D. In particular. Section 189(a) of the Act required that all of the Initial moderate PM—b nonattainment areas submit a SIP by November 15, 1991, which Includes the following: 1. Either a demonétration (including air quality modeling) that the plan will provide for attainment by December 31. 1994 or a demonstration that attainment by that date is Impracticable (see section 189(a)(1)(B)I. • Susan SaidSen, Chief, Ak Pru .ms Branch EPA Region I (APB-2311), Jff1( Federal BiuI ng, Boston, Massadvmetts 02203—2211. - (617) 986-3221; FTS 835- 3221. • WMam S Baker, Chief. Ak rugrs... . Branch, EPA RegIon I I, 28 Federal Plaza. New Yo& NY 10278, (212) 264—2517; FTS 264—2517. • Nerds Spinlt, Chief. N Pro’ grams Branch, EPA Region III. 841 Chestnut Building, PPwladefplva, PA 19107, (215 597—9075. FTS 597— 9075 • Stephen H. Rothblatt, Chiel, A and Redietion Branch. - EPA Region V. 77 West Jackson Skeet. Chicago. IL 60604. (312) 353-2211; FTS 353-2211. Puerto Rico Pennsylvania. Illino Indiana. ------- TUesday September 22, 1992 Pait:IV. Environ me Protection . ntai Agency 40 CFRPatt81 Designation of Areas for Air Quality Planning. Purposes Pcoposed. Rule ------- 43846 Federal Register I Vol. 57, No. 184 I Tuesday._September 22, 1992 I Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 (AD-FRL-4139-2) Designation of Areas for Air Quality Planning Purposes AOENCY U.S. Environmental Protection Agency (EPA). ACT)O* Notice of proposed rulemaking . SUNMARV Pursuant to section 107(d)(3) of the Clean Air Act as amended (Act), EPA is authorized to redesignate areas (or portions thereof) as nonattainment. for the PM-b (particles with an aerodynamic diameter les. than or equal to a nominal 10 micrometers) and sulfur dioxide (503) national ambient air quality standards (NAAQS). In this action, EPA Is proposing to revise the PM—b and SO 1 designations for certain areas. Previously, consistent with section 107(d)(3)(A) of the Act, EPA has notified the Governors of those States containing the PM—Ic and SO 3 areas addressed In this proposal that, based on available Information, EPA believes the areas should be red giuded from unclassifiable or attainment to nonattainment. For PM— 10, theredeslgnatlon Is based upon recorded violations of the PM—b NAAQS which occurred on or after January 1.1989. For SO 1 , the-. redesignatlon Is based upon violitlons of the SO 3 NAAQS which were monitored, modeled, or determined from a combination of the two. 0*7 W All written comments should be submitted by November 23, 1992. ADDP arQ! Information supporting today’s action can be found In Public Docket No. A-0Z-22. The docket is located at the U.S. EPA Air Docket,. room M—1500. Wateralde Mall, LE—131, 401 M Street, SW., Washington, DC 20400. The docket may be inspected from 8:30a.m. to 12noon and from 130 p.m.to 8:30p.m. on weekdays, except for legal holidays. A reasonable fee may be charged for copying. In addition, the public may inspect that lnformation• pertaining to a particular area at the respective EPA Regional Office which serves the State where the affected area is located. A list of Regional Offices Is In Supplementary Information. Send comment to: Larry Waflace (PM-b). SOilParticulate Matter Programs Branch, Air Quality Management Division (MD.-15), Office of Air Quality Planning and Standards. U.S. Environmental Protection Agency. Research Triangle Park, NC 27711 Andrew M Smith. SOa, SO3/Particulate February of 1991, EPA notified the Matter Programs Branch. Air Quality - Governors of the affected States that Management Division (MD-15), Office EPA believed certain areas should be of Air Quality Planning and - redesignated as nonattainment fc — Standards. US. Environmental - 10 and SO 1 . The EPA identified ti Protection Agency. Research Triangle areas in a Federal Register noticl Park, NC 27711 - published on April 22. 1991 (56 FR FOR FURThER INFORMATION CONTACT: 10274). Under section 107(dJ(3J(8) of the Larry Wallace (PM—b), (919)541— Act, the Governor of each affected State 09067 Andrew ?.L Smith (SOs), (019) 541- Was required to submit to EPA the 5395. - . designation he or she considered BUPFUMEPfTARY RIFORMATIOPC - appropriate for each area in question no The contacts and addresses of the later than 120 days after notification. Regional Offices arm - However, for reasons of administrative efficiency, the EPA requested the States Re omd c i Sc . . to submit the designations by March15, - ‘1991; (the date the lists of designations • WNm S Baker, Nsw Yceli. for all ozone and carbon monoxide Qilsi A Program areas were due from the Governor of ‘Brandt,EPARe g I OnU, \. _-. . pi . ‘each State pursuant to section YciI, iiv io re, - ‘ - .. 107(d)(4)(A) of the Act). The EPA 264-2517. - . received responses from the affected • Marcia Spk*, CNeI, CISbICI ci Coltmt s, -- States for all of the areas addressed in M Programs Siutch, Pems’,lvw s utd EPA R . on U I, 541 w..t . todays proposal. Section 107(d)(3)(C) of ctem t ei . ‘the Act provides that EPA must PMadelpNs. PA - promulgate the redeelgnatlon submitted 10107, (215)697- -. by the State unless EPA determines that H. .. a modification Is necessary. The EPA a isi. aui -. has reviewed the State submittals for Pa th i &.nSb, EPA -. the areas addressed In today’s notice, Region V.? ? WSci - and EPA Is proposing redealgnatlons - . • which are consistent with those IL 60604. (3i2 353- 11. — submitted by the affected States. • Gerald Fi.la..l . New Mgrlrfl 0S’iaboms, However, EPA Is requesting cm Odel. Ak - To . . .. on today s proposal and will cc Biwidi, EPA Region VI, 1445 o. A o.e, . - any relevant comments in tekin Data,, 175202- . “ action on today’s proposal. SecL__ 2733. (214) 56..7204. . ... , ‘ . ,: - . 107(d)(1)(A) of the Act sets out • DOt*S It sue, -. CQlQrado . Moidano. - definitions of nonattaliunent, Ak PtOWIMS attainment, and undasaifiable. These- Branch, EPA Region vut. sag ias s .si. definitions proidde the controlling legal Deiwel Pleas—tails ‘ standard for any designations or 500. Dower, cc redesignatlons to the relevant IC202-240 (205) 2 03-1750. - attainment status. The EPA is proposing • Osuid L ‘,e , Means, CdfOIIIIa. that all of the SOi and PM-b areas CNst Ak Programs addressed In todays, notice be Branch. EPA Redo. . - redesignated nonattainment. A _______ - - . . nonattainment area Is defined as any CA seice, (415) y - area that does not meet, or that 1219. signifIcantly contributes to ambient air • Gaceg. Abel Qilsi. Welto. Ougon , quality in a nearby area that does not Ak Pro wis Brsfld Ws.M too . . meet, the national primary or secondary EPA RegicnX. 1250 - . mali AVOIWS. sesnj - ? ambient air quality standard for the WA 05101.1206) 442- ‘ - relevant pollutant I (see section 1275. . -- - 107(d)(1)(A)(I)). Thus, In determining the ______________ _______________- - appropriate boundaries for the nonattainment areas proposed today. L General . EPA has considered not only areas where violations of the relevant NAAQf have been monitored and/or modeled, but nearby areas which significantly contribute to Buch violations. The EPA I. authorized to redesignate areas (or portions thereof) as nonattalnment for PM—b and SO 1 pursuant to section 107(d)(3) of the Act, on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate. Following the process outlined In section I07(d)(3), in January and ‘The EPA has con.tnaed the definitIon of nonaitslnment ares to require some maIurI I nr significant contithulion to a violation hi area. The Agency believe, Ills reeso •cocdud. th.t something g,eater than - taped is required. ------- Federal Register / Vo1L 57.. Not. 184: 1’ Tuesday.. September 22’.. 1992. I Proposed Rules The tabr pmvided at tbeend!ot today’sinotice specifythe complete! bounda es:ai sesodateddea1gnat1on status tbeIEPprepo ngJorthe areas addmsaezLlmtcda siactlan..Thus . the “desi iatad are ’ andleignation type” idantlIled in thntables lndIcat how EPA isipropo.mg th .w 1 L the pertinenkportioneoL4l) CFR.pariii.. Because of thgiiiffstliwolved , , EPA hannotputtht designated areas and ‘ po designationiypeha the identicalforinat lzrwhiclrjf finalize&tks i wilLappearin EPAa final action modifying 4OCFR part8t . .Tha final formatwflkbe consistent’ witfr thes style.otthere tialon&to4O CFP pad8L made In the Federal Raglsternoticft publiabeéoirNov.mher 6.1991 aI5WFR. 56894 and Is nded almpl torlniprnve the readabillt)rofthetable .;1n4(ICFR part 81 anthIu.ancountf rthepoilutaa5 classifications required by the i99Q Amen, n to.thaAcr Notealso ,thab intheNovemben6ilP9li FederaIPIsM, notics .EPh defei edi refermattlngthrSO, tubler in 40 CPR. part 81 banauseno SO. designatlonsi were being revised hrihat!actloa .Thes EPA. hidigateti thatit woul&reformatthe SO. tablan the flitnre-aa epproprlate Th Phanllclpater that when I L takeas flnabactfoxranrthe ’SOi redeslgnatlons proposeditaloday’. actlo .lt. wilL revise the SO tablergenerally. conaistentwith the new formaL ILPM .1 . A. BacicgzvundjosPM-1O ’ OirfiiI 1. 198 theEPA .evieed’the NAAQS for partlbuletematter’(52’FW 24834). Ieplaeln&tolapsuspendedc particulaterasthe lndlcatorfbr •. particulatematterwltFr mew Inalcatbr caired PM-tO ’tharlhdtidewo* those partIderwIthoiraerodynauucdl eter less ifianer equartoa ’nomlnaliO microme . At ’th,same time, set forth returetlone 8w implementlhgthe revised parfieuMtmntetterstenderd and annoencediEPAl Slate’ Impl mentatlon plan ( SW7 dbvelbpmenP policy etabosatflrgPM-10 ’centrol strategies. necessary to assure attainment and maintenance of the PM-b NAAQS (sea. geft Ey52F&24&2) . .thesEPA adoptetaPlI(-1O .SI?development polic dMdIng alf areawottlwcowrtrF into .thxea.categorIeLba.ed upon theth probabWtyohlalath g the ua e NAAQ5 1)Areas wtth’a .streng likelihoodofviointfng the new PM 1P’ NAAQ .an .LreqpiringsubstantiarSW adjustmentaweresplaced.Ln.Grmqrb .(2) area tbe#might weflLhave.been attaining the PM.40NkAQS and whose existing SIPs . most likely neecfed less. adjustment were placed In Grouplk(3 ) areas with rstrong.iikelifzocdiof attaining the M-bO NAAli San L therefore; ngadjutmentsionI) to 4 k. 1 reconatmntiom view programi ftodngnetwork.weresplacermnm Croup m (52.FR24672.24879-24882).. PursuanMo’section,bO2(d)(4 W) oLthi AcE .area. p r evlonal)’Identiflsthaa Group I and other areas which had monitored violations oLtha PM.-10 NAAQS.prloe I a January 1 .1989iwere. by operation otlaw.upon.enacimentot theiO9 OAmendments..de.lgnated. nonatt ’ilnt.forPM - l O ..AfterEPA . revised the PM-mNAAQS, ,EPA . Identified andilisted. the Croupil and. Group ILarearln.a Federal Register notice pubhshe&oaAngueL7 1987 (p2. FL29383). In. that. notice. EPA.indicated that Graup.UI areas.consisted.of that. portlon.of eState not pdln .Croupr or 11. DescriptIons of the. srea• i Hit 1 as Group Land ,ILareaa.were.laten clazifledin.aF.dIral Register notise. dated October 31.1990 (5&EE.45799J,. That notice sisal nhlfled:Ginup IL areaswhoIktedthe.sf nd rda ptiar to January 1J98LTha EPkannaunced. all areu which, were designated’ nonaftiihtmentby. operation of 1kw fbz PM.1O upon. ’n fTnPnLof the 1990 Amendments ln.a..TeJeralfegfster notice dated March 151991j55.FL 11101). In addltion. EPA has published a follow-up notlce.correctfng the. boundaries and: designations of’some.ot the areas In lrgJttorcomments recelsed’ addresslng,the.Marth 1991 notthe (pee 56 FR 37654 Augpst 8. 1W1J l FbrmeX codification In 40 CFRpart8fofthose areas designatad’nonattalnment for P1t - 10 by operation oflaw upon enac ent was announced iii a FederalRogjbfer notice dated NuvernberL199? ( Fl 56604Jt :. ‘ :‘ - B. Tokzy’a Act kwf vi P51-10... Those apeawnotdisignated! nonattalhment far PM-b b .opvatfan. of 1awupon’enactment’ofthe’1990 Amendments.weiedestgi iatedl unelliesiflabili (see section. 107(d)(4)(B)(IIl)of the AaI3 Th.EM Ir.- autboTlzedte redesIgnat. these’areap an nonattalnment 1ev Ph$4 purenanttm sectlomlwtd)P)oS theAct ontth.bas1st of ali que tpdata plann andicontrol consid don ranprothera lsqualitp- related conslderalion that; the AnI.fror ’dBemLayp .uprtaI (bes al s xsec1D7(d)(1 )(AJOll . ___ reare ,bw.o groups of PM_1ft . aL !-.:!! .se&ln .todayslactiont Thesfirat group consietsiofthosa areas li t d’ln theFedaxuLRegiater notice dc’ prilz 22. 1290 (5&FR 1n274) which r violationa ojthePtv4 .iO siand - bear after Januae r1t.1S89; InJanuey ’and . Fe qo8 199t. otifiedi den Couernora QL those States with areas whlc lrrecorded’violations of the PM—1O standards omonafter January 1. 1989. and indlcatedithat EPA believed.tbose areas should be red ’esignated from uncJ’assLfIeble.t .nonetra1nment for PM— 10 bued upon availableihforinatloe. 5 ’ The Governor of each affected State was requfred to submit to EPA the’ designatlonwhlch.ha o,the considered to.beappropriate’for each. area In questioawlthln 120 days.after receiving notlfization(.ee section 107(d)(3)(B) of’ tha.ActJ,.As.noted forreasonsot adrMn lstrntiseseffidency.. the EPA. requested the States to submit the designations by March 15499L Section. 107(d)(3)(C) of the Act provides that EPA must promulgate the redesigns dons submIttac by the Staterunleer EPA determ lne*thapa ’modlffcatioir la necessary. The second’groupof areas being adtheued’ In’ today’s proposal were submitted as unsolicited requests for redesignationby the Governors of the affected States. These unsolicited requests were submitted to EPA as .comments to IetteivEP& sent’ to the Governors In January and February 1901 Lu which they were notified of PM-b0 violations fn.thelr States. The EPA explalnedthe manner In.whlcb It Intended to address these requests in the corrections notice. published on August 8,1991 (50.FR 37655). The EPA is propos lngtheee. areas for redesignadon to nonattainmenC pursuant to section 1O7(dJ(3 (D1 of the Act. Section iO7(dJ(3)(D pro’iddee that a Governor of a Stats may. oil hi’s or her own initiative. submit to.the Administrator a revised. designation ofan. area wlthlh .the State. WithIn.1B.monthe of receiptof a complete State redasignatfon submittaL. the Mmrnlatmtor.shaltapprovaor deny the redesrgnatfoa. The bowufazlei fan The proposed nanaHnl .11T .seIt areas are provlde&intha.ravlalona.ta4O C R part 81 at the end.afthIa notice.. The .fo l law lngtable.lists.ln.a.generaL fashion theadditlonal nonat’ 1 ” ’- designations, fot PM-lU that are being proposed ln .thls.uotlce- e,aI., PM-1O’sadsw ‘ end ii C.Ui J. Pai l. e GI& C y. Pu? d . CanSy, Centy. Put S 8.uedE Oo Pad c Routl’Coisd Psi ’. of Kooten County. Put of Sitositane County.’ Mon 5ne Pitt of Ssnde,a County. ‘A. oote&ln a Pedsr.JR. l.Ie’ notice pubII.hed on April22. tSSt(Ss PR 1001). EPA identified those uses for which ba&noUfisd the Go,uno thaten su utiurchstM be r.vI.adi ------- 43848 Federal Register VoL 57, No. 184 I Tuesday. September 22, 1992. / Proposed Rules Siale Ptil-IOw .sds ak s lwi’ New Me __ Bna o Cewdy. Niw Ycñ New Ycit C imty. Oiegon P 1 ci Lane Cainiy. Wearliglon’ Pwl ci Benton. FqMIn, and Willa Wala Coiaitie.. West Wgiude Psi ci Nen Ccr.jdy. redes gnat1on of theseareas are - available for review at the addresses _____ indicated above. The EPA requests comments on today’s proposal ____ addressing the appropriateness of the proposed boundaries In light of the statutory definition for nonattainment - area set out at section 107(d)(1)(A)(l) of lbS IS dOtSSSd bO U ISS beifl9 the AcL - today we puekied hi the . -,.—I ci w 40 CFR psi SI 1 the wi wcn ci e i no cs. - The EPA has received information • TNa I en WuolOtod PM .iO SC.*ftShVflSnt Indicating that Mohave County, Arizona, ‘hi to I ai nstIat by W ..JI1.4W. . EPA has petitioned the Nevada State - I au,.oam en Vicrease ii *5 Ci Ps SIS to be Environmental Commission to delete the . .,4.w wtd nonettarmis’it The we. ki.islhd hi lie m, issi r. eci Register . WIs Nevada Administrative Code 445.724. Benton Ca irn. The proposed wea dose nCi tchde As currently written, this code Is a the City ci W&PJa Wi dth he. *5ed waiver for the Southern California gated as a nonafla.....&it wee (see, •.g., 56 FR 56648, Nh 8, 1991). Edison Mohave Generating Station. • located In Laughlin. Nevada. of the As noted. EPA has reviewed the State • requirement to meet a 20 percent opacity submittals for all of these areas, end -. ‘limit measured at 0-minute Intervals at EPA Is proposing PM-b redesignations The stack. Mohave County has claimed. which are consistent with those submitted by the affected States. among other things, that emissions from 1. The PM—b areas listed in the April the facility significantly contribute to elevated levels of Pk5—b0 in Mohave 22,1991 Federal Register notice. County that adversely affect public a. The PM-b areas EPA is proposing health and contribute to Its for redesign ation. As noted above, the - nonattaliunent problems. The State of - EPA l authorized to Initiate redesignatlon of additional areas as Nevada held a public hearing on nonattalnnient for PM—i l) pursuant to December 5, 1991. As an outcome, a section 107(d)(3) of the Act on the basis study has been authorized to assess the of air quality data, planning and control Impact of PM-Il) emissions from the considerations, or any other air quality- Mohave Power Plant on surrounding related considerations U at areas. The EPA requests public Administrator deems appropriate, comment on this Issue. For example. Further. section b07(d)(i)(A)(I) pro ’vldei EPA requests any Information Indicating that a nonattainnient area shall consist whether and to what extent the Mohave of that area violating the PM-il) NAAQS Power Plant contributes to the or contributing significantly to violations nonattainment problem In Mohave in a nearby area. Generally, the PM-Il) County. Further, EPA requests nonattainment area boundaries - . comments on the appropriateness of the presumed to be. as appropriate, the nonattanment boundaries for Mohave county, township, or other municipal County In light of any such information. subdivision In which the ambient . The EPA notified the Governor of particulate matter monitor recording the New Mexico on January 23, 1991 that PM—b violation(s) Is located. The EPA Bernalillo County (City of Albuquerque). has presumed that this would include violated the annual and 24-hour PM-b both the.area violating the PM-Il) ’ NAAQS during 1989. The City of NAAQS and any area significantly Albuquerque has provided additional contributing to the violations. However, Information regarding those violation.. a boundary other than the county With respect to the 24-hour standard. perimeter or municipal boundary may The thy has provided Information which be more appropriate. Affected States suggests that the two exceedances may submit information Indicating that, measured in 1989 at monitoring site 35— consistent with section 197(d)(1)(A)(I), a - 001—1013 were the result of exceptional. boundary should be alternatively event., i.e., below normal ralnfall 1 and - defined. Some guidance on this Issue is high winds in the Albuquerque area. In a provided in the PM-Il) SIP Development similar manner, the city has suggested Guideline (EPA-450/Z-86-00i). The EPA that additional exceedance. at this site has received Information on alternative (one In 1990 and one In 1991) were also bo indarIes from States in response to the result of exceptional events. I.e.. high the notification provided under section - winds In the Albuquerque area. While 107(d)(3)(A). Thus, for many of the PM— EPA has not taken a final position 10 areas addressed In today’s proposal, regarding the City of Albuquerque EPA Is proposing nonattainment subinittals in light of the requirements of boundaries which reflect the alternative section 2.4 of 40 CFR part 50. appendIx boundarie, suggested by the affected K, the Influence of below normal rainfall States. Copies of the technical , and high winds makes it difficult to information supporting the basis for the determine the associated frequency and nature of these exceedances. This results In uncertainty In how to treat these exceedance events and In determining whether the area Is or i - meeting the 24-hour NAAQS (see, section 107(d)(1)(a)(ill) of the Act). Because of the uncertainty. EPA feeL that a determination that the City of Albuquerque has violated the 24-hour PM-il) NAAQS and should be redesignated nonattainment on that basis I. Inappropriate until additional ‘data are collected. The City of Albuquerque is currently collecting every-other-day PM—IC samples at monitoring site 36-001—1013 and Is planiitngto collect hourly PM—il) data. The EPA will continue to track the 24- hour PM-Il) values In Albuquerque and take appropriate action should’ additional air quality data Indicate that the area Is not meeting the 24-hour NAAQS’ With respect to the annual standard, the Cftyof Albuquerque has provided information which demonstrates that the annual violation of 03 ig’ (microgram. per cubIc meter) In 1989 (arithmetic mean) was reduced to 37 &g” (arithmetic mean) In 1990 and 39 &g” In 1991 (arithmetic mean). This reduction In the annual average was attributed to - a number of actions or control measures which were taken In Albuquerque following this annual violation. The • regulatory bases for these actions, however, are not Included in the cui federally-approved SIP for the City of Albuquerque and, thus, as a matter of Federal.law, the reductions In emissions of PM—il) are not permanent or enforceable. Therefore, EPA Is proposing to redesIgnate Bernallllo County (City of Albuquerque) as nonattainment for PM—b on the basis of the violation of the annual standard In 1989. lithe City of Albuquerque submits the rules requiring the subsequent reduction In PM—b levels to EPA as part of the Albuquerque SIP before EPA take. final action on this redesignatlon. the Agency will further consider the appropriateness of taking final action on • this proposaL- - ___________ . ‘As Indicated In the dis ’ below, In today’s notion. EPA Ii proposing to designate Al . ,.....,.a nonat’—”..l based on a violation of the snousi NAAQS. bbs EPA also notes that ills possible that Mbuquerque has taken measures to eddreu this sir quality problem sod that EPA would consider withdrawing the proposed redestgnation If EPA has reason to believe that continued attainment and meintenenca of the annual standard Ia assured Neither the pending redeeignstion proposal based on the violation of the annual standard nor any conclusion EPA makes about the .nnual standard would In soy manner preclude e future nonattainment determination by EPA Il futu, quality dais Indicate the ares Is not meeting hour atsnderd. ------- b. The I M-2O areas EPA has decided slot to redesignate at this lime. The EPA has determined that redesignatlon of four of the areas previously Hated In the April 22. 1991 Federal Register notice is inappropriate at this time. The areas are a portion of LaSalle County, lillnolEa portion of Edgar County. illinois; Bay County . Michigan: and St. Louis County Missouri. The ratlonaib for not redesignating these areas Is as follows: illinois . LoS ills County: The Governor of Illinois requested that the portion of - LaSalle County Identified as an area EPA believed should be redesignated as nonattainment (see 56 FR 10274, April 22.1991) be added to the lnltIal : nonattainment area of Ogiesby. flhlnots. In a corrections notice (56 FR 37654, August a, 1991) to EPA’ , announcement of the Initial nonattainment areas for PM—b (those areas designated nonattainment by operation of law upon the enactment of the 1990 Amendments). EPA announced that the section in LaSalle Identified by the Covernor was added to the Oglesby 134—10 nonattainment area (see 56 FR 37662. (Augusta, 1991)). AccordIngly, the need to redesignate this area as a separate nonattainment areq was rendered moot by that action: - - Edgar County: The EPA has reviewed records pertaining to the Edgar County. Illinois, area and has determined that redesignatlon of the area Is not appropriate. Air quality data associated with an existing coal mine in Indiana. which Is in close proximity to the Edgar County mine, showed violations which were attributed to the surface coal mine operation. The EPA Initially determined that violations were likely at the illinois mine, due to the close proximity of the two mlnes..The operation in Rdrr County has since been dosed and the company has moved operations. Available air qualitj data have not showed any violations of the 134-10 standards..: ‘: - . • Michigan •. . - Bay County: Based upon further review of the air quality data for Bay County. Michigan, EPA has determined, that redesignation of this area to nonattainment Is not appropriate at his time. The EPA i uncertain, based on available information. whether the area meets or does not meet the PM—tO NAAQS..Therefore, EPA bellev’ - Is presentiy more appropriate to I. the usa d i ’ - gnated as unclassifiat. - d to znllect i ulfitional air quality monitoring data for the area before deciding whether the area should be redesignated. The EPA plans to review the designation status of the area when the additional data are available. Missouri St. Louis County: Based upon further review of the air quality data for St. Louis County. Missouri. EPA has determined that redesignatlon of thi! area as nonattalnment Is not appropriate at this time. Similar to Bay. County. Michigan. EPA is uncertain, on the basis of currently available .. - Information, whether St. Louis County meets or does not meet the PM—la NAAQ& Therefore, EPA believes His presently more appropriate to leave the area designated as unclassifiable and to perform additional air quality - monitoring In this area before deciding’ whether the area should be redesignated. • . . . 2. Uneollcated PM-la Areas There ar two areas for which EPA has received unsolicited designations (see section 107(d)(3)(Dfl. They were not listed In the AprIl 22, 1991 Federal Register notice; Both of these involve an existing PM-la nonattainment area for which the State has requeste4 an, expansion of the boundary They are the cities of Butte (Silver Bow Coulty), Montana,,and Pinehurst (Shoshone. County), Idaho (see 56 FR 37658 (Pinehurst discussion) and 56 FR 37659 (Butte dIscussion), August 6, 1991). In the August 1991 Federal Register notice referenced, the States were informed- that the expanded areas would be treated as separate areas with statutory deadlines (e.g., SIP submittal and atiRiRment dates) different from the existing nonattainment areas. However, EPA also noted that nothing in the Act prohibited the State from submitting an Initial nonattalnment area SIP covering both the Initial and the proposed expansion area. Le., to accelerate the SIP adoption, submittal and implementation schedule for the’....’ expansion area to-match that of the Initial nonattalnnrent area.- ., -. The State of Montana has sthce .: rescinded its request for expanding the boundaries of Butteina letter from the’ Governor to EPA dated October 2,1991. Thus, this unsolicited redesignated - request is no longer pending before EPA. The State of Idaho has not Informed the EPA that they wish to rescind their request for designating part of Shoshone County as nonettainment. Accordingly, EPA is proposing In todpy’s notice to- redesignate this area as nonattainmenL 4384 C. Significance of Today’s Action for PM-b - I1LSO A. Background for SO, - Following the Clean Air Act Amendments of 1977. EPA published - areas Identified by the States as nonattalnment, attainment, or unclassifiable for SO ,. The Clean Air Ad. as amended by the 1990 Amendments, provided designatloni for SO, areas based on their status Immediately before enactment of the 1990 Amendments. For example. any area designated as not attaining the primary or secondary SO, NAAQS as ol the data of enactment of the 1990 Amendments was designated nonattainment for SO, by operation of law upon enactment, pursuant to sectior b07(d)(1)(C)(l) of the Act. In addition, any area designated as attainment or unclassifiable (or “cannot be classified” Immediately before the enactment of the 1990 Amendments was also designated as suth upon the enactment of the Amendments pursuant to section b07(d)(1)(C) (ii) and (iii) of the Act. For the current status of SO, areas, readers should refer to the codification tables currently set forth In 40 CFR part 81 (1991) and to any subsequent Federal Register / VoL 57, No. 184 / Tuesday, September 22, 1992 I Pro oaed Rules For those PM—la areas redesignated nonattainment in the final action on today’s proposal, State. must submit implementatIon plans to EPA within 18 months after promulgation of the nonattainment redesignatlon (see section 189(a)(2)(B)), meeting the requirements of, among other things. section 189(a)(1) of the Act. For example, provisions to assure that reasonably available control meuures (including reasonably available control technology) are implemented within 4 years of an area being redesignated nonattahunent and classified as moderate must be submitted withIn 18 months after redesignation (see section 189(a)(1)(C)). A program meeting the requirements of section 173 governing the construction and operation of new and modified malor stationary sources of PM—b is required within 18 months (see section 189(a)(1)(A)). Further, the State’s implementation plans must contain a demonstration (Including air quality modeling) that the plan will provide for attainment of the 134—10 NAAQS as expeditIously as practicable but no later than the end of the sixth calendar year after the area’s • designation as nonattalnment, or a demonstration that attainment by such date Is Impracticable (see sections 188(c)(1) and 169(a)(1)(B) of the Act). ------- 43850 - Federal RegIster I Vol. 57. No. 104 j Tuesday. September 22,’ i99 I Proposed Rules modifications to these SO, tables that have been published In the Federal Register (see also 56 FR 50700 (November 8.1991)). A. described above, EPA Ii auth rtzed to Initiate the ridesignatlon of additional areas (or portions thereof) as nonattainment for SO 1 , pursuant to section 107(d)(3) of the Act, on the basis of air quality data, planning and control considerations, or any other air quality- related considerations the Administrator deems appropriate. The EPA believes that monitoring and/or modeling Information should be used in determining the attainment status of an area and In establishing SO, nonattalninent boundaries that are consistent with section 107(d)(1)(A)(i) of the Act.’ As Indicated previously, nonattainment areas consist of any area that does not meet the relevant NAAQS and that significantly contributes to a violallon of the relevant NAAQS In a neeiby area. In January and February of 1991, EPA notified the Governors of the affected States that EPA believed that certain areas should be redesignated as nonattainment for SO,. In a Federal Register notice published on April 22. 1991 (56 FR 16Z74), EPA Identified those SO, areas for which EPA bad notified the Governor, of affected States that an area’s SO 1 designation should be revised to nonattainment. After notification, the Governor of each affected State was required to submit to EPA the redesignation he or she considered appropriate for each area In question within 120 days. For reasons of administrative efficiency described above, the EPA requested the States to submit the designations by March15. 1991 although EPA indicated that the States had up to 120 days. The EPA has reviewed the State submittal. for SO, and, as with the PM-ID redç.lgnationi proposed in today’s notice. EPA ii - proposing redesignatlons which are consistent with those submitted by the affected States. Section 107(dX3)(c) provides that EPA must promulgate the redesignatlon submitted by the State unless EPA determines that a modification Is necessary. B. Today’s Action for SO, In today’s action, EPA Ii proposing to redesignate certain areas for SO, In accordance with the section 107(d)(3) redesignation process, descrtbed above. The EPA announced in a notice ‘The A b.5.e.s that those 0 . 1p wkith are ressuasbip rellab4e aim be used hi deiimibzth& ssid section 1W1d)m(AJ(I) of the MI. whether in ste. døes nat mist” or contnbnte. to smblenl sir quality In a uesthy ares thai doe, not steer ib. relevant NAAQS (see also 57 ra II&.& April 10. 1992). published on AprIl 22. 1991 (see 56 FR 10274) that it believed that certain areas listed In that notice should be redesignated as nonattainment for SO,. The EPA also announced in the April notice that It had notified the Covernor. of the.affected States that certain SO, area designations should be revised. Where a change has been made, relative to the April 22. 1991 notIce (58 FR 16274), the rationale for the proposed redesignatlon, Including any changes. has been briefly stated below. Technical Information supporting the redesignation for each area proposed for redesignatlon Is available at the addresse. Indicated above. District of Columbia GSA CentroJ: The EPA Is proposing to redesignate an area within a 1 kilometer (km) radius of the General Services Administration’s (GSA’s) Central Heating Plant as nonattainment for SO,. This boundary is based upon the results of EPA air quality modeling which • revealed violations of the SO, NAAQS in the area. GSA West. The EPA also is proposing to redesignate the area within a 1.5 km radius of the GSA’s West Heating Plant as nonattamment for SO,. This , boundary Is based upon the results of EPA air quality modeling which, similar to the area noted above, modeled violations of the SO, NAAQS in the area. The District of Columbia. CSA. and EPA have entered into an enforceable complIance agreement The District of Columbia intends to submit this agreement and technical analyses demonstrating that the emissions from GSA’s two heating plants no longer cause violations of the NAAQS as a formal SIP revision to EPA. Because the SIP revision for the two areas In the District of Columbia have not yet been submitted and approved. EPA I. proposing to redesignate these area as nonattainment for SO,. illinois Madison County: The EPA Is . - proposing that the nonatteinmeni area for this county consists of the to mshlps of Alton, Granite City and NameokL The size of the Madison County. nonattainment area was reduced based upon air quality modeling information which was submitted by the State and reviewed by EPA. Major source areas and their Impact areaa are included in the proposed nonattalninent area. SL Clair County: The EPA Is proposing that the nonattainment area for this county consists of the townships of Centreville and East St. Louis. The size of the St. Clair nonattalnment area was reduced based upon air quality modeling which was submitted by the Stats and reviewed by EPA. Major source area and their impact area Included in the proposed nonattal area. - Ôinton county? The EPA does not Intend to propose the redesignatlon of Clinton County at this time. The State ha. submitted a finally-adopted plan for Clinton County which contains provisions that are expected to assure attainment and maintenance of the SO, NAAQ& The EPA proposed to approve this plan onJuly 1, 1991 (56 FR 29918) and on November i .i991, EPA finally approved It (50 FR 50158). The SIP revisions became effective on December 2,1991. Oklahoma Kay County: At this time, EPA will not propose redeslgnation as nonattainment for Kay County based upon EPA’s evaluation of additional information submitted by the Stats. This Information consisted of air modeling date which Indicated no violations of the NAAQS, and a federally enforceable construction permit which significantly reduce. allowable and actual SO, .e.fnslons from a source In the area. In additl 1 the State has provided the EPA wil years of monitoring data (1O89-19 which indicate no violations of the NAAQS In Kay County. Pennsylvania Allegheny County: The EPA is proposing to redesignate part of Allegheny County as nonattainment for SO,. SpecIfically, the proposed - nonattainment area includes Lincoln, Liberty. Glasaport. and Port Vue Boroughs and the City of Clairton. The basis of the redesignation Is monitored violations of the 24-hour standard. Won’en County: The EPA is proposing to redesignate part of Warren County as nonattainment for SO,. Specifically, the proposed nonattalument area includes Glade and Pleasant Townships and the Cityof Warren.Thebaslsof the redeaignatlon Is modeling analyses predicting violations of the 3-hour and 24-hour standards Texas Jefferson Counlj’ The EPA does not Intend to propose the redesignatlon of Jefferson County based upon a review of the circumstances surrounding the monitored SO, violations near the Based upon this review, EPA and State of Texas agree that the viols were produced by an exceptional evem ------- which occw 4 ed En the area during the time in question (see. e.g.. “Guideline on the identification and Use of Air Quality Data Affected by Exceptional Events” (EPA-450 4-8e-O07) July 1988). An accidental fire occurred In the sulfur recovery unit at a petrochemical facility. Meteorological data clear1y Indicate a correlation between the fire, which lasted for 3 days. and th, monitored SO, NAAQS exceedances in the area. West Virginia Hancock Co imtT The EPA Is proposing to redesignate the City of Weirton Including the Butler and Clay Magisterial Districts as nonattainment for SO,. This area was not listed in the April 22.1991 Federal Register notice (58 FR 16274). However, by letter dated March 0, 1991, the Governor on his own Initiative requested that the area be redesignated nonattainment based on historical monitored exceedances. This request was clarified by letter dated May 1. 1991 from the West Virginia Air Pollution Control Commission to EPA Region II I. The EPA believes that - miffident evidence exists to propose the area as nonattalnment for SO,. The EPA is thus proposing to approve the Governor’s request and is proposing to redesignate this area as nonattainment pursuant to section 107(dJ(3)(D) of the Act. Mditlonal parts of Hancock. County were designated nonattainment on the date of enactment.of the 1990 Amendments, pursuant to section 107(d)(1)(C)(i) of the Act. The following is a summary of the revised nonattainment designations being proposed in today’. action: Slat., S,.. SO.ensdesc, i4on ub_________ . .. Pelwai +4ai Pail ci Ma soi CwSy. P .te(SLQ Pail ci M h Oowny, PM ci Wwven CaiMty.. Pail ci Hwicc Coia Iy. Pu1cieieOI .o Cca*Ia wsa* . - Wsci W s.._..__ D VlctciCo5intt._ .. C Significance of Todoy’,Aetion for So’ For those SO, areas redesignated nonattainment In the final action on today’s proposal. States must submit Implementation plans to EPA within 18 months after promulgation of the’ nonattainment redesignatlon. meeting the requirements of Part I), Title I of the Act (see section lal(a) of the Act). The Implementation plans must provide for attainment of the SO, NAAQS as expeditiously as practicable, but no later than 5 year. from the date of the final nonattainment designation (see sectIon 192(a) of the Act). PAR181—PM-1O IV. Tables The tables ptuvlded at the end of this section specify the complete boundaries and associated designation status that EPA is proposing for the areas addressed in today’s action. Thus, the “designated area” and “designation type” Identified in the tables indicate how EPA I. proposing to amend the pertinent portions of 40 CFR part 81. Because of the significant cost involved. EPA has not put the designated areas and corresponding designation type In the identical format in which, if finalized, they will appear in EPA’. final action modifyIng 40 CFR part 81. The final format will be consistent with the style of the revisions to 40 CFR part 81 made in the Federal Register notice published on November 0,1991 at 56 FR 56894 and Is intended simply to improve the readability of the table. In 40 CFR part 81 and to account for the pollutant classifications required by the 1990 Amendments to the Act. Note.also that in the November 6, 1991 Federal Register notice, EPA deferred reformatting the SO. tables 1n40 CFR part 81 because no SO. designations were being revised in that action. The EPA indicated that it would reformat the SO, tables in the future as appropriate, The EPA anticipates that when It takes final action on the SO, redesignatlons - proposed in today’s action, it will revise the SO, tables generally consistent with the new format. Federal Register / Vol 57, No. 184 I Tuesday, September 22. 1992 I Proposed Rules 43851 4 ,Jd a iee OeI Mon date Type Ai _n . . .‘.. — . . . . G Sa County ai —Ps,.en TION, 8&aons 1-3,10.13, 22-27 and 34-30 ci R0€ TI IN, Gec ona 1-0.10-13, 22-27 w 34-00 ci 99 5 Tl0 -IIN, ’RICE TION, SMtona 4-I, 10- 21, and 20-33 of RIIE TIIN, SocOsna 4-9,10-21, and 20-33 ci RIlE. Mousy, County (psfl—8i lesd T21N, -21W. wèi Loft. Mead NaSonal Rai. i ke T2ON, f 0-22 TION, R21-22W tr*ii*Ig Foit Mohave den - . . Pia bi Nonaltafleent • Ptu .L. N cnattalfvne nt. N t - San Osmanaito County ‘ç that poiSon kst6J It 515 SIMPS V . 1Sy p .*i ai, and .‘. *ig SM nsa Ii the Sci , CaM A BW . - . - .. C.MiiJ P.m County —The Coy ci $pIqs P 1090 1 1 19 Nonatta iw, iait Pit,. , ..I 1 , Nonatl.ii. . .. PAJ IT8I—SO, D.J Wee DS*15SOfl date 1 5 OIseIaiolCots11Ir: ’ ’ - - (p.1)—The ens M*i 51 fit m is ci the Genstal SeMcss Ada*SMadon’s CWat HastIng PtanL WP . i (jeal)-.The ass M i t a Ii bit mmm of the Gene,ut Ser.tea • S! sWMP Pflt Propoe11g ’ Nonattabwn snt Picpoofng_ Nonatlafnmeit ------- 43852 Federal Register I Vol. 57, No. 184 f Tuesday, September 22, 1992 / Proposed Rules S PART 81—PM—1O - DsaQistsd sue Dsdgnslon data Typ. - Koolunal Coimly -.Th. City ci C dA ie. Stioshone Caijity (psii)-ilwiI povlon at 5Ii ,.Ii County -“- 5 ’ig the I bal PM-tO nonattakunent wee ci the City ci Phietiwut bi the Sleet Vaitey wear Sections -V arid 34 -36 0 1relee a tar 4 9no r d Ssc t io n sI-w id1O15 c i , a r igsI a and townohp 48 novti $ecdoiw 13-36 ci isigs 2 seat end 49 ncvtI Seclons 1-lOot range 2 east and IasewIi 48 ncil Sections 19 20, and 25-36 ci range 3 lust and townatiç 49 no.1l Gu cnu 1-20, arid 36 ci arigs 3 east and tewnhlt 48 ncrti Section 1 ci wigs 3 seat arid 47 noil Section 31 ci lange 4 east and lownehip 49 noiV Scalars 1-36 ci rang. 4 east and tawnultip 48 ncetii Sealone I- S and 6-15 ci ruing. 4 east arid I. ,wn.tIip 47 noVi - iu.19 .. PUJ.....iiL . , . .. . • • . .. ,• PART 81—SO 1 s e Osulgislon data ‘ Typs PART 81—PM-1O . ar e a data Typs Mont Sandera County SecVciarR29W,T21NS5 Ib7, ,9, and . loclj*ng the taI ng 1O,lObandlS. Grew t boundary area Fru O g N U.k rt . New Martins SamsiUc County New Yciio New Vol County egns Lane County ar -CobIdgs Its RUPOekig P,upoiL Reposing NWr t N , ..Ualonsi,t U t PART 81—SOs •-: area Dedgedon data Type — gCounty nui1)-L arty. Lincoin t ..p- Warren County (pefl)—Wwven Bovougtn, Pleasant - and Pod Vue Bora4ns. end Vie City and Glede 7 n tnip P&. . iWflSIt . Piu, k ig N on.U. ii...ait PART 81—PM-b dar D dais Type Waeteigtns Bentcn. Frs n arid Wale Wala TII satss area ci tine City ci WaiWi (pwQ D J., border UTM ne 11. 370000mE hee n intersection with (JIM 5.135000ntil Thu Westedy *stUwn ta the acintium border ci Idlawe tine acidhem H.nk,d Weds boundary bcnmduy then tolawu thu Yeats River k’itsrsealwn cith Ionjde 119 30’. The bgundsy wltidn fonna Ins ..wtina... geogapltia Isslaw lie 500.focl contcn4 The nonsttaivnnei* along the usgs oust is lii Suntan/Yeats sullisdy en lie Burden Candy las boundary lien foOows an eassarly rdu Vwbo I. . Weal Vi tia Haruedi wind lecois Canidas -.ay ng the Wiel PM-1O . ..i* at the poW on the sg IkngL... north IA ,h , IITM 370000mE ta the boundary than f claws UTM 5.135.000ntil in. the H Jovd Wodu. The boundsy then in . .dy .iI. ,J ,.. to R27E. lbs sfruarn) in a uouthweete,ty ds &.. lo the lous south along 11930’ loIn. ddg. ci the Horse Heaven Pe apprarâuetely boundsy then b l ess in a .uhi1 r In UWII County las. yin. bomduy lien blows 8 is Vie sgo&WaJ*igk... atis lee. The along lie egcn/Wedl..gtoe stale las la ci Welts, . • . . Pr • — • . • ‘ Pk.,.u. 1n 5 . ‘ . • ? Iukit . - • Nonattelsnart PART 81—SO1 Oeslgnated sue Designation date I Typs M - . County (pefl)-A Grads City, arid Pömualti SL ci a Cwniy (pst)—Car*uvBe and East SI. La To. I West W d . City ci Walton lnoidng Biter and Clay Magistenal Diocicte ------- • Request for”Public Comments The EPA Is. by this notice, proposing Lat the PM.-10 and SO 1 designations for. rtain areas be revised. The EPA Is questing public comments on all pects of this proposal Including the. propriateness of the proposed signaUons and the scope of the oposed boundaries. Public comments - wuld be submitted to EPA at the idresses Identified above by ovember 23,1992. L Other Regulatory Requirements • Regulatory Flexibility ActS 43853 impact on a substantial number of small entities. List of Subjects In 40 CFR Part 81 Air pollution control. National parks, Wilderness areas. Authority: 42 U.S.C. 7407.7501-7515.7601. Datsé September 8.1992. F. lisary Hibichi U, ActirsgAdininistmlor. (ffi D cc. 92-22785 Filed 9-21-9 &45 amj coca e Federal Register I Vol. 57, No. 184 I Tuesday. September 22, 1992 I Proposed Rules proposed rules subject to notice-and- comment rulemaking an initial regulatory flexibility analysis describing the impact of the proposed rule on small entitles. The requirement of preparing such analysis is Inapplicable, however. if the Administrator certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities (see 5 U.S.C. 005(b)). The redesignatlons proposed for PM— 10 andSOs will not alone directly b impact or impose any significant requirements on a substantial number of small entitles. Accordingly. I hereby Under the Regulatory Flexibility Act. 5 certify that the actions proposed today S.C. 001-012, EPA must prepare for will not have a significant economic ------- 16908 Federal Register I Vol. 58, -No. 130 / Friday, July 9. 1993 / Proposed Rules Adm Ini trut orofEPARagl o n VI I I ‘ ‘ -‘ ‘ “i notified the Governorof Montana that MS-1-56S9FRL.46fl-13. . “ EpAbellevedthattheazeasround gr Whitefish should be xedes natedu”. plannIng Purposes; Montana; fbn1at mmnt for PM )eslgnatlon of Whitefish puio -, 107(d)(3liB). the Governor of Montana lonaiimnentgjsa : •. wu r equlredtoeubrn lttoEPAthe designation he considered atmroorlate oaicT: U.S. ivironrnoutal Protection for the area around Whltefishwlthln 5flCY(EPA)..::r:. . Z l2OdayssfterEPA’.notlficatlon.The tCflON: Notice of proposed ru]einAlng . EPA received the Slate’s response for ____ Whitefish, Montana on November 13, IU& AItY: Pureuant to the Clean Air Act iae . Now, the EPA roust promulgate Is amended in 1990, EPA Is authorized the redesignatlon that It deems o promulgate new dedgn*tlons of areas necessary and appropriate, consistent _____ or portions thereofl U non ft11!lment with section 107(d)(3)(C) of the Act. or the PMIO (naitlcle . with an - •Based upon EPA’. review of the State erodynamlc hameter lees than or equal - submittal for Whitefish, EPA ii o a nomInal 10 mloromoter.) National. proposing redeilgn*tlon which Is - mb1erit Air Quality Standards consistent with the request submitted by NAAQS).Intb lsnotlce,EPAI ‘ thoGovernorofMontana.EPA I )ropo.lng to revise the PMIO requesting comments on today’s teslgnatlon for a portion of Ftatheed.• proposal and will consider any relevant ountv, Montana. Previously, consistent comment in *klng final action sith the Act. EPA-notified tf e Governor today’, proposal. f Montana that the area around Section 107(d)(1XA) sets out Nhlteflsh, Montana should be definitions of nonattalnment, edesignated from unrl*.affiAble to at 1nment, end unclassifiable. The EPA onat’ ’n”ent for PM1O. The - has proposed that Whitefish. Montana. ___ edesigostlon is based upon violations addressed In todays notice, be. f the PM1O NAAQS which were redeiIgn tod nonattnl ment. A nonltored durIng February and March nonattalnment area Is defined as any ____ f 1992. - - - - area that does not meet (or that AIES All written comments should be significantly contributes to ambient air nibm lttedbyAugust9,1993. - - q u a ty I nanosrt 3 azesthatdo.snot woeassss: All comments should be meet) the national primary or seconder, ambient alt quality standard for PM2O iddressed to: Douglas t L Ski., 1ef .. , 1o7( (1xAju)1. Thus, In lr Programs Branch (8AICF-AP). EPA determlnlng.the appropriate boundaries Region VIII, 999 18th Street, suIte 500, - for the nonatlainmont areas proposed Denver, ) 80202—2466. today, EPA has considered not only the Information supporting today’s action ares where the violations of the PMIO an be found at the following location: NMQS are occurring, but nearby areas IIA Region VIII. Air Programs Branch. ch 1ficantly contribute to such 99 ‘18th Street. 6th Floor. South Tower, - - Denver, Colorado 80202—2468. The Information may be Inspected -: IL Bickgroond ferPMlO between 8 am . and 4 n.m., on On July 1, 1987, the EPA revised the weekdays, except for legal holidays. A- . QS for particulate matter (52 FR reasonable fee may be as d for -‘ 24634), replacIng total suspended opyI ng.. - - -. - - t. -. -, . -• particulate. as the indicator far FOR FURThER PFO A1ION CONTACTI particulate matter with a new Indicator Call. Videtich. Air Programs Brsnch.• celled pj o, that Includes only those EPA Region VIII, 999 18th Street, suite - p ij with an aerodynamic iiIam ter 500, Denver, Colorado 80202-2405, - -‘ lees than or equal toe nomInal 10 - (303) 2!2-1754. - - - miorometers. At the same lime, EPA set -- ii,-. SUP aIENTART IFORMAI1OII. - forth the regulations for I’nplementlni the revised particulate matter standaras LGenur .I -. -- - andarmo mced EPA’s State - - The EPA Isauthâz zeä to inftlat ‘ .- ImplementatIon plan (SIP) development redesignatlon of areas (or portions policy, elaborating PMIO control thereol) as nnn*ftainrnent for PMIO - - strateglee necessary to assure attainment pursuant to section lilld)(3).of the Act, and malntonanca o the PMIO NAAQS on the basis of air quality data, planning — - - and control conaidira Jons, or any other • Th . ‘A ha. con . usd thads 5alUoe of air cnrullty-related cc. . iderat1ons th D n mt va. to tat%Ihe men matetal or Adidnlstrator deenu spproarlate. -. C thhati0O to a ioiatIan In a are.. Tb. Agmnq belluva. liii re ’oaeais to Following the process outlined In -. , .n _____ section 107(d)(3), on July16, 1992. the • Impact I. rsipib.d. Nib tee. generally 52 FR 246721. The EPA - adopted sPM1O SIP development policy dividing elf areas of the country Into three categories based upon their probability of violating the new, NAAQS: (1) Areas with a strong likelihood of violating the newPMlO NAAQS and requiring substantial SIP adjustment were placed In Group I (2) are .. that might well have been attaining the PM1O NAAQS and whose . dstlng SIPS most likely needed I . .. adjustment were placed In Group D and (3) eros. with. strong likelihood of - attaining the PM1O NAAQS and. therefore, needing adjustments only to their preconsiruction review program and monitoring network were placed In Group III (53 FR 24672,24679-24682). At that time, Whitefish was categorized asa Group III area. Pursuant to section 107(d)(4)(B) of the’ Act, areas previously Identified as Group land other areas which had monitored violations of the PMIO NAAQS prior to January 1. 1989. wore. by operation of law upon sctment of • the 1990 Amendments, designated - nonattainment for PM1O. All other areas of the Country, such us the Whitefish area, were aimilarly designated - unclassifiable for PMIO (lee sedlon 107(d)(4)(B)(lII) of theAct 40 R 81.327(1992) as amended by57 PR 56782,56772 (Nov. 50, 1992) (PMIO designations for Montana)). Alter EPA adopted the PMIO NAAQS, EPA IdentIfied and listed the Group I and Group U areas hi a federal Register notice published on August 7, 1987(53 FR 39383). In that notice, EPA Inilfr.Imd that Group UI areas consisted of that portion of eState not placed In Group I or U. Desoriptions of the areas Identified as Group I and U areas were later clarified ma Federal Righter notice dated October 31,1990 (55 FR 45799). That notice also Identified Group U areas which violated the standards prior to January 1,1989. EPA announced all areas which were designated nonattalninent by operation of law for PM1O upon enactment of the 1990 Amendments In a l’iddal Register notice dated March 15,1991(58 FR 11101). In addition, EPA baa published a follow-up notice correcting the boundaries and designation, of some of the areas In light of comments received - addressing that March 1991 notIce (see 56 FR 37654 (August 8. 1991)). Formal codification In 40 R part 81 of those areas designifiod nonattainmant for PMiOby operatIon of law upon enactment woe announced In o Federal Register notice dated November 6, 1991 (56 FR 56 94). The November 6. 1991 Federal Register notice was ------- - - ‘sr- - - - -- - : - . - :-P.dassI I Msr’ UVöI.*No. IOtPziday, JUly9, 1e3 !I apcaed i subsequontly a .d wMo,onb 3O F thII .11cn1o7(dX1XA)(I) ‘k NI ones W A July lB. 1$ . • 1992 (3711 36762).- -’provtdss thate ee shall 4ettar . on R .b ’ 13. 1892, the - . ,, , :;ç: ’ of thk as y4nt 4ng thePMIO Gov&norofMontaua asquested that -. V — NAAQ .S c i ccuitrih.t1o IR ifIvt. Qtv of W 1 fi Ii and swrouiidlug . As noted sb - In aneathy & . idnity,iu aPastion ofPletheed W o ftheAci A anthwiusd __ • tt*In tfor aaed • apo nfate the wty . w’ .Elp..r ; -deWled boimdaths are pzóvkled In the ‘ anloipi e thdlvlz1on In wb ithe . tobb below. Based on the I’ reconled botwien Fshni*iy 4 and Marth ___ __ ___ 13, 1992, ru p’ ’g born 163 to 333 p$I . -. that this would bchrd. both - oonsttMa8isit boundarils lII. &bpi m3 . EPA the Goverraci of -- - • area , 1 Ij”rni the PMIO NAAC SIul . the Th he •MontanaanJuly1 Montana should be iede,(grn tad m 4 m. ffiaIJe to , wi H.1nmi .nt , PM1O. We. O ’RJO4 ] : & i i stthe ibove. I V. ofTiday’. achieiwi ovary tiuse years uutU.• WbiI .b, -tb. area Is i Ig d attainment i UtheWhiteflshrofMo a Is S .l wbjch dIn xatrets 89 aannihI . : i. tai1 i. d w.1 11ai.. . rt when EPA as tiaft.,d Ii bei takes final sotlon on today’s proposal , ? ement . • such area will be fied as modatats 158(4,1 PMIO nonaP Iniii 4 area b ersdcn’ p QflowdmeofthedA4 a& .il( - esvtI 188 (a) ). Montana lust ivloñIt ?.nlniplarnmrtit lon plentó EPA ‘ areswttb1n 18 months afturfinal’ -enrtaday’spropaue lmid •thfta nm e ntbsd meeting the nqufrem rt. ‘ntis I of the Ad (bean :18o(ax2xB) of the A4 • .Th.11 AAd1 plan far the area otherh4ng,. the :i,aukeme • r - i.E Ithsrai sIrquajfty mOdeling ) that the -lirovide kr slnmout ãf the] NAA as arcpeditlouslyu 1 5 butnolat.zt *eendi f lliA year after thi within. 18 moiithi from the P ’’”” BtItUII ______ as nonatta1nmen à a ed s1gn t1oo , to coIncide 11th the due 5iOa and doe. not In d.manatzetlon that attainment by such ‘ -date foi the rest of the moderate PM 1O sgulatoiy requirements on - datef. Impructlcable r.-. . ouat*aIrnnent the extant that the area mud ed now : .2. Previsions to asome that mesonablj •‘ - -• - . águladons, based en Its nona . IWils urnitrol nw,wa . (lnclndfng V. Riiiue biPublic • EPA will review the eøid of iiab’y a ,allsble cardrol tethnology) The EPA Is, by this notice. proposing.: those nell tUe . at the —are beplemauted wIthin 4 years of the : i--that the PMIO deaf atIar far a pcutlan :strne the State arJ rnlts limOs iIguhth • & . tbd - fldiud Ca irn . —Th• Csi d lat arsi w nbig si - ally Wended byise 6am tkMisi Tamiuia. .al r (UThI) uJostee 189000 mE, 5310000 I est to 93800* - 5370000 n*4 , bali to 133000 mE 5381000 n#4, east tel sitS, 5381 nt i S, arid nails to 896000 mE, 5370000 WI andI a date the ireqa lredbyi tb. Ad (see 57 PR 13498 at 13510— and 13543-44); SedIanlT*b) of the d i . that such dati.bill not be - i3yeari t h e ,Addoss: ------- 67334 Federal Register / Vol. 58. No. 243 I Tuesday. December 21., 1993 / Rules and Reguiations NMEIB on July 8. 1988). and July 16. 40 CFR Pail 81 .‘ - . - ‘s Sidles - 1990 (as revised and adopted by the NMEID on March 9. 1990). Air Quality - - SteØien H. RJthIMI, Qiel, noia.. - Control Regulation 707—Pennits, Designation of Areas forAlr Qu ity end . .. : - Prevention of Significant Deterioration P , ngPurp sas - •.. . -. EPA Region V-iT West . :‘ .‘ -. (PSD) and its Supplemental document. - -. — - . ‘ StiNt. Q O . is approved as meeting the requirements AGBICY: Environmental Pr e Jon , ’ - .. 11111015 60604, (312) 3 . : - - nil. - of part C. Clean Air Act for preventing Agency (EPA). FOIIenA. Chef. Ak New Meidee, significant deterioration of air quality.. ACTION: Final rule. - Pro aies Braid’., EPA . . (b) The requirements of section 160 through 165 of the ci Air Act suMMARY: Pursuant to section ’107(dX3) - Region VI. 1445 Ross Av- . -. Dalas, lame - .. -. met for Federally designated Indian . of the Clean Air Ad (Ad). EPA is takuig 75 733 (214) 655 - lands. Therefore, the provisions of . final action to redesignate areas (or - ... - § 52.21 (b) through (w) are hereby P 11 i0 5 thamof)as nonattaininent for - Dogi t 11. SNe. Chief. Ak Colorado, incorporated by reference and made a the PM—la (particles with an. Pregraon Branch. EPA Moi na. part of the applicable implementation aerodynamic diameter less than or equal Region VIII. 999 1851 - plan. and are applicable to sources to a nominal 10 miaometers) and sulfur Street Denver Place— located on land under the control of dioxide (SOi3 national ambient air sijta 500. Denver, Cole- Indian governing bodies, quality standards (NAAQS). The EPA is 8 ”2405. (3m) (c) The plan submitted by the taking action to redesignate these areas 3”1 750. Governor in paragraph (a) of this section as nonattainmant due to violations of L) L Caldnc. Chief. Ak California. M- for Prevention of Significant the NAAQS far these pollutants. Programs Stanch. EPA rena. Region IX, 75 Hawthorne Deterioration is not applicable to Ad requires that the States containing g Bernalillo County. Therefore, the - such nonattainment areas develop plans Ca11on a 94105, (415) following pLan descnbed below is - to expeditiously bring the areas-mto - . - 744-1219. . applicable to sourcas located within the attainment with the NAAQS for both. Georve Mel. Chef. Ak Pro- Idoho. Or-- boundaries of Bernalillo County pollutants. , sans Brord . EPA Re- egon. end (including the aty of Albuquerque). - FECT1VE DATE: January 20. 1994. . - peti X. 1200 Slidh Aye- -Wamh tL i seaae, was, i This plan, submitted by the Governor of ADORESSES Information supporting -. 98101 6) 442-ins, New Mexico on April 14. 1989. August today’s action can be found in 7,1989. May 1. 1990, and May U. 1993. Docket No. A—92-22. The docket Is’ ‘ - - - and respectively adopted on Ivfazth 8.-’. Located at the U.S EPA A1rDo cket. i.- - - ‘ “-‘ .“ 1989, July 32, 1989, April fl;i990 .’and Room M-iS0o,WatersIdeMell LE-i31;.. ThD’Als authorized to re de nate - February 10.’l99Zby the A1büq1 èrt uel’4o1 M s et sw waeb1 (oriiot ions’theieoQas’ - .“ñonáttainment fdr,PM O nd S0 2 , - Be ualilLI CountyAIr’Quality Control - 20460. The docket may be Inspected Board, containing Regulation 29— — - - from 8:30 a.*n. to 12noon and.frcun 130 pursuant to section 107(d)(3) of he’ Prevention of Significant Deterioration - - p.mn.to 330p.m. on wee ays e cept -’’ Ad. 1 on the basis of air quality dati ’ and Its April 11. 1990, Supplemental for legal holidays.-A reasonable e 4 , P ”8 and conirplainsideratlons. or- - any’othirair qi slity-relat d ‘. ‘:. ‘. - - document, Is approved as meeting the- -. be charged far copying. In addition, the considerations that the AdmInistrit w - requirementsof pail C Of the Clean Air public may Inspect lnformation Act forthepreventlonofslgniflcant’- pertainingtoapai u1arareaattbe ’ d0 Pp0Phiat0 Following the process outlined ink. deterioration of air quality. ‘.-.‘. -: ‘ ,‘. r p ve EPA Regional Office which ‘k’: iection’lOfld(3. in January and — , -. 4. Sectlon’52.1636 is revised to read - - serves the OmetlW ff ct d -“ Febnrary of 1991. EPA notified the’’ as follows: —‘ ‘- - -. - is located, ..; :-.- - -; - . ‘- Governors of the affected States that §52.1636 vt áy “::, — , ‘FOR RIRThER I FORMATION ‘ -‘ EPA believed certain ereasthodid be” (a) The requirements of section 169A. - Larry Walhiiw (PM-10),’SOzIPartioulate - redesignated as nonattainment fat PM- of the Clean Air Ad ale not-met for the. Matter Progr ms Branch Air Qw fty:’ 10 and SQr. Th ,EPAIdeut ed hose State of New Mexico. outside the’ - - - ‘; k4 gment Division (MD .i5)L Offlde areas fri a Federal Ragistànolice boundaries of Bernalillo County, of Air Quality Planning and Standards. published on April 22.1991(56 FR because the plan does not indude US. EnvzmwnentSL Protection Agency; 16274). Under section 107(d)(3)(B) of approvable procedures meeting the Research Thangie Park. North Carolina the Act, the Governors of oath of the requirements of 40 R 51.305 and 27711. (919) 541—0906. - - - -. affected States were required to submit 5 1.307 for protection of visibility in SUPPLEMENTARY DIFORMA11ON: The to EPA the designations that he or she mandatory Class I Federal areas. contacts and addresses of the RegionaL considered appropriate for each area in (b) Regulations for visibility Offices are: question no later than 120 days after monitoring and new source review, The notification. However, for reasons of provisions of § 52.21. 52,27. and 52.28 admInistrative efficiency, the EPA are hereby incorporated and made part s, Baker. Chief, Ak t-iew York. the States to submit the of the applicable plan for the State of Pr g wes Branch, EPA designations by March 15. 1991. (the New Mexico. outside the boundaries of Region II, 26 Federal date the lists of designations for all Bernalillo County. Plaza, New York, New owne and carbon monoxide areas were (c) Long-term strategy. The provisions York 10278, (212) 264— due from the Governor of each State of § 52.29 are hereby incorporated and 2517. purauant to section 107(d)(4)(A) of the made part of the applicable plan for the Mania Sprlc. Chef, Ak Pro- Olstii dCo- ‘Act). Under section 107(d)(3)(C) of the State of New Mexico, outside the grams Branch, EPA Re- kintle. - - boundaries of Bernalillo County. 9 10 (1 II I, 841 CheStflhl POIV10)1Va iRef.tsn s herein are iO the Dean Au Ad. u n sa. and mended (1990 Amendmen!s I, The Clean Air Ad IFR Doc. 93—31038 Filed 12—20—93. 8.45 aml Penruytvai a 19107, (215) West V - Iscodified. a, amended, in the US Code at 42 8ILUWG COOS 5io .6O.D 597-9075 ginia U.S C. 7401. ef seq Re o11ces S es ------- Federal Register I Vol 58, No. 243 / Tuesday. December 21. 1993 1 Rules and Regulations 67335 Act. EPA promulgates the re’Iecignation adjustment, were placed an Group &(3) result of these comments. hasdecided to submitted by the State. making audi areas with a strong likelihood of - defer ica on the areas at this time. A modifications as EPA may deem - attaining the PM—b NAA ä --- more detailed explanation for why EPA necec ery. The EPA proceeded to-... therefore.needing adjustments only to 4$ deferring action on these areas is . - propose redesignatioa tonoñattainment their p constndionrevzew pregram.z : - provided in the “Response to -‘ - for many F? 1-1O and SO areas where - and monitoring netwcá. were phaaid in Co ieuts ”a”ctioo beloii. - such action wai not inconsistent with Group 111(52 FR 24672. z4679-24682). . The 10 arena that EPA Is taking final’ the recommendations of the affected Pursuant to sections 107(dX4MB) and action on in today’s ootkzro the-- State(see 57 FR 43846 1 September 22. 188(a)of theAct,areas previously ‘— foil ‘g ( l)P wu.Ar izou n ;1Z)L 1992). The EPA is taking final action as- identified as GroUp 1(55 FR 45799, ‘ ‘ Qty” ,(3J Saurnento proposed, except for the changes- - -.. .. October31. 1990) and other-arena whidi County. Cahlornin; (4San . nwiino , described below which vere made in had monitored violations of the PM-b County. C Ii 5 .wnia ”(5the Steamboat’. response topubiicccmoients. NAAQS poor to January 1; 1989 were. Springs Area Aimhod Colorado’ (6) Section 107(d)(1) (M) of the Act sets’ by operation of liw upon enactment of ShoshoneCountj. Idaho (pelt); (7)’ - out definitions of nonattainment. the 1990 Clean Air Ad Amendments Thompson Falls. Montana (8) NewS attainment, and unclassifiable. A (Pub. L No. 101—549,104 Stat. 2399). York County. New York3 (9) Oakridge. nonattainment ama is defined as any designated nonattainment and classified Oregon; and (10) the aty of Weirton. area that does not meet, or that as moderate for PM-la Formal West Virginia. These 10 areas are significantly contributes to ambient air codification in 40 CFR part 81 of those classified as moderate PM—b quality in a nearby area that does not - - areas was announced in a Federal i- nonattainmeut areas by operation of law meet, the national primary orsecondary Register notice dated November 6.1991 at the time of their nonattaininent ambient air quality standard for the (56 FR 56694) (see also 57 FR 56762.- redesignatioa (see ion 188(a) of the relevant pollutant 2 (see section November 30. b992) All otherareas of Act). Note also that the complete 107(d)(i)(A)(i)). Thus. in determining the country were designated - descdptions of the nonattainnient the appropriate boundaries forth. WidasSifi able for PM-b by-operation of boundaries for these 10 areas are out nonanAlnmeut .dd .d . law upon enactment of the 1990 - - in the regulatory language at the end of today’s final rule. EPA has considered Ainendmertts (see section ‘ today’u notice.-’ - - not only areas where violations of the 107(d)(4XBXiii)Of the Ad).’ - -. The EPA received. . .mn . tc ’ - relevant NAAQ have been monitored In January end Fabruary of 1991. EPA concerning the aedesignatfon of some of and/or modeled, but also nearby areas n0t of these during the public o0mm1 t whIch signlfl ntIy contribute to such .•. which mood violations of the PM-b - peziod’provided hr the September 22 . violations. -‘ . -: . - :.. , - . standard after January 1.- 1989 tt EPA’ 1992Trkua Register notice lad his” - - believed thMl sear r asshculdbe i . . providedad.talledieapáseto1hess . .. - IL Toda .Zdfee ,‘ - gir L ,sigpi l 4 PM-iC ’ - ., 1 -, , - it InaFoderalRegasterantaca - ajJ - - — - - •. . - .. -‘-. .,- . ‘. publishodonApnl-22.1991( FL-e,,- - .. 0 On July -i. t987.EPA revised the . - 162;4) AidemfledthoeePM—l9 - NAAQS k late mat (521 R— ,. j PA no dtl : — YoUowi agtba’OeaA 24634);Teplangto*a susperuled -’,L Go emerrofaIfededStaãthat1ho’ ” - ’ - .Ameno 49EPNpthlishad-a. - -- -areas PM-In de ntionohoWd4,e —’ .- -liSt4 sines Id1ntifledby1h.SIateaas particulate unatferwitha new mdl tor :ievj cellad-Pld doythse- . : ’ notification, theG feedi ’ partides wfthm aerodrraefr dlameer ‘4men ’ *ovidedfoidevigna’ tc - - tess than or equal tea nommaibo.. .: - - - EPA tim redesignation be crab of areas based ontheirstAtus ,. ’,. . — -‘ mianmeters.-At the seine time. EPA ,et- co pproprh ate foresth ea. -t lmmodlately.bof&.enactmentofthe - forth regulations arimpleme he .” The ‘A -. 1 ”dtopnrpose. i .- ’199OAmendments. For €‘pie, any..- revised particulate matter standards and tonana tainr,nr1 elem- area pry yd ig ted as not’ amroencodWiSt unpleme on TorJtl4.10 fatlieS t.- 2 aggt c ratthlol gthopraaaryorseceodarySOr plan (Sn’) development poIicy -- -“ - - :7eleraIRe ernôlice . ’ - w ’ - NAAQSas of the datè!of enactment of -. elaborating PM-b conirul strategies” ‘ Today, A Isi*lriag final action to —‘ the 1990 Amendments ares designated necessary to ensure attainment and - - redesignate as nonatfRinn nt fO PM .40 - nonattalnment for SO by operation of maintenance of the PM-b NAAQS’(see 10 of the areas previously proposed for - law upon enactment, pursuant to 52 FR 24672). The EPA adopted a PM- redesignation in the September 22.1992 section 107(4XIXCXi) of the Ad. In 10 SIP development policy dividing all - Federal Register notice. The EPA is - addition, any area designated as’, areas of the country into three categories deferring action on two of the remaining - attainment or unckcrillabla (or “cannot based upon their probability of violating areas and is no longer taking action to ‘be dassified”) Immediately before the the new NAAQS: (1) Areas with a strong redesignate Bernalillo. New Mexico. to enactment of the 1990 Amendments was likelihood of violating the new PM—be nonattainment for PM—jo. The two also designated as such upon the NAAQS. and requiring substantial SIP ‘areas that’EPA is deferring action on are enactment of the Amendments pursuant adjustment, were placed in Group I; (2) the following: (1) Kootenal County, - to sections b07(d)(1KC) (‘ii) and (lii) of areas which may have been attaining the Idaho (pad); and (2) Benton. Franklin. the Act. For the current status of SO 1 PM—b NA.AQS. and whose existing and Walla Walla/Th counties, areas, readers should refer to the SIP’s most likely needed less Washington. excluding the initial PM— codification tables currently set forth in _________ - 10 nonattainment area of the city of 40 R part 81 (1991) and to any tilts EPA baa auis ued the deCniiioe of Walla Walla, Washington. The EPA nonatta Iueeot Ieea lo require soot. material or received comments on these areas ‘A&t EPA proposed its PM-to iionaltaiztniem ai 5 i’.ifica t coiztnbutioa to. viotatioe dunn • redealgn.tioo for New York Coumy, th . Natural area me t4ency belieies tbai it is riasonaltie to g y PU IC commen R3OIMVSS Defense C il lied. petition conclude that something greater titans ia period provided in the September 22. req’ , ti , this EPA pmttply proceed to I ’rnal impact is required. 1992 Federal Register notice and, as a action. Toda .’s rinal action diaposes of that reqi ,e-s ------- 67336 Federal Register / Vol. 58, No. 243 1 Tuesday, December 21, 1993 / Rules and Regulations EPA received comments on these areas during the 60-day public comment period provided in the September 22. 1992 FederaL Register notice, and as a result of these comments has decided to defer action on the areas at this time. A more detailed explanation for why EPA is deferring action on these areas is provided in the comment section below. The two areas that EPA is taking final action on in today’s notice are the city of Weirton, West Virginia and Warren County. Pennsylvania (part). The EPA did not receive any adverse comments concerning the redesignation of these areas during the public comment period following the September 22. 1992 Federal Register notice. Therefore, EPA is taking final action as planned to redcsignate these areas to nonattainment. subsequent modifications to those SO 2 tables that have been published in the deral Register (see also 56 FR 56706. )vember 6. 1991). As described above, EPAIs authorized to initiate the redesignation of additional areas (or portions thereof) as nonattainment for SO 2 , pursuant to section 107(d)(3) of the Act, on the basis of air quality data, planning and control considerations, or any other air quality- related considerations the Administrator may deem appropriate. The EPA believes that monitoring and/or modeling information may be used in determining the attainment status of an area and in establishing SO 2 nonattainment boundaries that are consistent with secti.:n 107(d)(1)(A)(i) of the Act. As indicated previously, a nonattainment area is any area which does not meet the relevant NAAQS or which significantly contributes to a UI. Response to Comments violation of the relevant NAAQS in a In the September 22. 1992 proposal. nearby EPA provided a 60-day comment period In January and February of 1991, EPA ending on November 23, 1992 in order notified the Governors of the affected to solicit public comments on all. States that EPA believed that certain aspects of the proposaL For.those areas areas should be redesignated as that EPA is redesignating in today’s nonattaininent for SO i due to violations action, EPA has responded to the public of the primaiy and secondary standards. comments received and,-as appropriate. In a Federal Register notice published made modifications in Light of audi on April 22, 1991 (56 FR 16274). EPA - comments. In certain lns ncas EPA is ientified those SO 2 areas for which deferring redesignation of areas. Where PA had notified the Governors of EPA is deferring iedesIguatlo I of en - ‘ected States that an area’s SO . area, EPA will publish its final ..isignation should be revised to determination on the area in a separate nonattainznent After notification, the. notice and will respond to relevant Governor of each affectedState was public comments at that time A. PM :Arizon’--Portk of ha’. appropriate for each area. In the - . . . September22. 1992 Federal Register Comments were received contending notice, the EPA proceeded to propose- that the PM-b violafionsi nded in redesignation of seven areas to Payson were due to smrrces.in the- nonattainment for SO 2 . VicinitY of the monitoring equipment Today. EPA is taking final action to - - -Comments w reoeived requesting that redesignate, as nonattainment for SOi, - . industry in thoPayson area be further two of the areas previously proposed for evaluated to determine if compliance redesignation in September 22, 1992 with the PM—1O NAAQS can be - Federal Register notice. The EPA is achieved through the current State deferring action on the remaining five permitting programs. One cominenter areas. The five areas that EPA is requested that EPA delay the deferring action on are the following: (I) desIgnation of the area as nonattainment Allegheny County. Pennsylvania (part); until sufficient information became (2) the District of Columbia (General available to evaluate the extent of the Service Administration’s Central problem in the area. One commenter Heating Plant); (3) the District of further contended that areawido Columbia (General Service violations were not recorded which Administration’s West Heating Plant); would justify a nonattainment (4) Madison County. Illinois (part): and designation for the area. This particular (5) St. Clair County. Illinois (part). The commenter furthercontended that the _________ proposed boundaries of the nonattainment area are unwarranted and would constitute an extreme and unnecessary hardship upon the area. The EPA notes that particulate matter sampling has been conducted in Payson since 1974. A monitor measuring total Ifle EPA believes thai those tools which are easonably reliable can be used in determining. tdei section iO?(dHl)(AUi) of the Act, whether an a “does nut meet” or “contributes to ambient air lity in a nearby area that does not meet” the ivant NAAQS (ace also 57 FR 13545. April 16. 992). suspended particulates (TSP) began operation in downtown Payson in 1974. Significant violations of the TSP NAAQS were recorded annually until 1977 when the monitoring site was relocated to the Tonto National Forest Ranger Station, 2 miles north of the original site. In 1980, the monitor was again relocated to the original site and again recorded significant annual violations of the TSP NAAQS through 1986. In 1987. PM—1O monitoring was begun and violations of both the 24 hour PM-to NAAQS and the annual were recorded in 1989 and 1990. These violations thus provided an ample basis for proceeding with a nonattainment designation for Payson (see section 107 (d)(1)(A)(i), (d)(3) of the Act and 40 CFR 50.6). That comn-ienters contended that some monitors in the area have not recorded violations, and that Payson may only have a localired problem, does not change the foci that Payson has violated the PM—b NAAQS and should therefore be designated nonattainment. Rather, these comments are relevant to the scope and nature of the PM—b nonattainment problem. These issues are preasely what the SIP development process which follows from nonattednment k4gi mtIon Is Intended - to a and to address. This Is also the case with the comments suggesting that EPA impose source specific control measures or rely on -the State permitting - process Instead of designating the area nonattainnlenL The Ad calls for States - containing areas designated -: nonattlinment to submit to EPA for approval a plan that will expeditiously bring the area back Into attainment. During the SIP development process. comprehensive wnkeions Inventory data will be llected end monitors and modeling iijll be employed to assess the scope end-nature of the problem and reasonable measures will be implemented to address the problem (see. e.g., sections 189(a), 172(c), and l1O(a)(2) of the Act), The Act provides for EPA review of the SIP to assess its sufficiency and to make it federally enforceable (see. e.g.. sections 110(k), 302(q). and 113 of the Act). The Arizona Department of Environmental Quality (ADEOJ conducted a special monitoring study in i99o to, among other objectives, identify the sources (both point and area) that a Total suspended paniculates (TSP) was the origidil air quality indicator fog the N QS for particulate matter. Tb. TSP was a measurement of all particulate matter in the ambient air. regardless of size. In July 1957. EPA revised the NAAQS for particulate matter to include only those pailtcles with an aerodynamic diameter teas than or equal to nominal 10 mictomelers (PM—to) ------- Federal Register I Vol. 58, No. 243 I Tuesday. December 21. 1993 I Rules and Regulations 67337 contribute to the high PM—ic concentrations in Payson The results of that study mdicate that the highest PM— 10 concentrations occur in the winter months and that residential wood combustion, an areawide PM—b air quality problem, is the m significant contributor to PM—Ic concentrations during this time. These results conflict with the commenters daim that the elevated PM—tO concentrations are the result of particular point sources. Further, in January 1991. EPA provided the State of Arizona with notification that Payson should be redesignated to nonattainment and requested the State to submit the appropriate boundary description for the Payson area. The State responded in May of 1991 by designating the nonattainment boundaries EPA proposed for the Payson area in the September 22. 1992 Federal Register notice. The EPA has not been informed by the State that the nonattainment redesignation for the area should be changed. In redesignating an area to nonattainment . EPA accords significant deference to the State’s judgment unlem further information is received which indicates that modifications to the State’s submittal are necessary (see. e.g.. section 107(dX3) of the Ad).; Furthermore. EPA has the authority under section 110(kX6) of the Act to.’ correct the boundaries of a nonattainmeot area where, for example, SIP equivalent Information.submitted to EPA reveals that the previous - boundaries were in error (see 56 FR 3 7656. notes 6—7 (Augusta. 1991), and:. 57 FR 56762—63 (November 30, 1992)). For example, EPA would consider- exercising Its authority under section- a 10(k)(6) if the SIP development process reveals that the boundaries issued today are clearly Inappropriate and other - ; information persuasively supports a change. Portion of Mohove County In its proposal to redesignate a portion of Mohave County. Arizona, as nonattainment for PM 10, EPA requested information addressing whether and to what extent the Mohave Power Plant (MPP) in Laughlin. Nevada. contributes to the PM—to nonattainment problem and the appropriateness of the proposed nonattainment boundaries for Mohave County in light of any such information (57 FR 43848). The Nevada Bureau of Air Quality (NBAOJ and the Southern California Edison Company (SCE), operators and co-owners of the Mohave Power Plant, responded to this request. The SCE claimed that a study conducted by Desert Research Institute (DRI) indicated that MPP has a less than 1 percent impact on annual average ambi nt PM-it) ie iels in Mohave Valley and that Fugitive dust emissions horn construction activities contribute up to 75 percent Similarly. NBAQ indicated. that the study showed that less than I percent of the PM—to measured at Bullhead City from September 1988 • through 1989 was from MW stack operations and that 75 percent was from local soiL However. NBAQ also indicated that the calculations r nn * distinguish local soil dust [ mm MPP operations from other sources of soil dust, but that MPP operations cover only a small fraction of the local area and water is applied to minimize fugitive dust. In today’s action, EPA is fInalizing the Mohave County PM—to nonattainznent boundaries as proposed. However, as stated previously. EPA would consider exe!r sing its authority under section I iO(k)(6) of the Ad to correct the boundaries of this noniin in ,n.nt ag if, for example, information obtained in the SIP development process reveals that the boundaries Issued today are in error. The EPA also received comments from SCZ and BAQ contending that the violations monitored in Mohave County were duo to exceptinn i events and that EPA should not prooled .vith a designation for this area on the basis ofsuchdata. On July26. 1990, ADEQ informed EPA.that an excee1Ialw of the 24-hour PM-to NAAQS was recmdedin Bullhead City In 1989. The data were from a monitoring site operated by DRI for SCI. Sampling Is acted once’ every 6 days (see, e.g.. sectIon 3.1 of 40 - Rpait5O. appendix I C ). Additionally. ADEQ reported that the annual PM-tO NAAQS was violated In 1989. In Its letter to EPA, ADEQ stated that although it had no input Into the selection of tire monitoring site, based on g observations, the site appeared lobe representative of the central Bullhead City area. Further. ADEQ reviewed a summary of DRFs qualityassurance prugram and found 1(10 be satisfactory. The NBAQ claimed that there were elevated wind speeds on 2 days when the 24-hour NAAQS exceedances occurred, as well as construction sources that contributed to elevated values. The SCE contended that the annual PM—to exceedance in 1989 was an exceptional event caused by increased construction activities and that strong winds that created dust storms contributed to the 24-hour NAAQS exceedance in 1991. Section 2.4 of 20 CFR part 50.. appendix K. has been partially superseded by the changes made to the Ad in the 1990 Amendments (see section 193 of the Act). Section 2.4 defines an exceptional event as ‘ uncontrollable event caused by natural sources of particulate matter or an even that is not expected to recur at a given location. The 1990 Amendments added sectior 188 (I) to the Ad which authorizes the waiver of certain PM—to requirements based on the nonanthropegenic - contribution to the PM-Ic problem in the area (see draft guidance announced in 57 FR 31477, July 16, 1992). Th.e premise of section 188(1) is that areas having a nonanthropogenic contribution to the PM—b problem will be designated nonattainment. In fact, this provision would be meaningless if EPA did not designate areas on this basis ,6 - Thus, recurrence alone, and not the source of the exceedance, remains relevant in determining whether an exceedance qualifies as an ‘exceptional event” under section 2.4. The comnienters did not provide supporting Information or data showing that the high winds and construction activities did, in fad. haves direct causal nexus to the PM-to HAAQS exceedances er, if so, the magnitude of the contribution from these sourcad (see Citizens for Clean Air vzEPA 959 F.Zd - 839.846-48(9th CIr. 1992) (aphaldlng EPAirejection of pub&coutments the’ were not accompanied with specific suppoiting information)). Further, the comments simply asserted that these - activities were exceptional. The - - comments did not ‘address the -. likelihood of the’recurrence of these’ activities. The commentets did not ‘ - demonstrate that elevated winds aUegea to have contributed to the exceedances are unlikely to roast. In fact, the SIP development process is intended to prevent exceedances horn - - anthropogenic activities such as construction by providing for planning by the State and local community to help ensure such activities adequately mitigate their contribution to PM—Ic air quality problems. Accordingly, EPA believes that the available air quality data provide an ample basis to proceed with a nônaltainment designation for the Bullhead City area. Further, the •See U.S.v. Northc Village. Inc.. 112 S.O. loll. 1015 (1992) (relectlng a statutory interpretatIon that “violates the willed nile thai a statute must. If possible, be construed in a fashion that every word has some operative effort I (citation omitted): Bois ieCascadeCotp.v.EP.4.942 F.2d 1427. 1432 (9th C li’, 1992) (lufnder accopted canons of statutory ln lerptetation. we must interpret statutes as a whole, giving effeet to each word and making - e ery effwt not to interpret a provision in a mann that renders other provisions of the same statute inconsistent, meanuigtess or suprrfluont”l (chat omiitedl. ------- 67333 Federal Register / Vol. 58. No. 243 / Tuesday. December 21. 1993 / Rules and Regulations State of Arizona has recommended that EPA redesignate this area as - nattaininent for PM—1O (see section (d)(3)(C) of the Act). lifornia—Sacramento County The EPA received a comment contending that the PM—b concentrations of 155 pg/rn’ measured at the Stockton Boulevard monitoring site in 1989. and a measured exceedance of 153 iig/m ’ at the Citrus Heights site in 1990. were both marginal exceedances of the NAAQS for PM—to. and should not be used as basis for redesignating Sacramento County to nonattainment. Pursuant to 40 CFR. part 50. appendix K. an exceedance is defined as a value which is measured above the level of the 24.hour standard after rounding to the nearest 10 pg/rn’ (i.e.. values ending in 5 or gs’eater are rounded up). Therefore, the PM—ia concentration of 153 pg/rn’ measured at the Citrus Heights site would not be considered as an exceedance of the PM—b NAAQS. However, the PM—b concentration of 155 pg/rn’ is considered to be an exceedance of the PM—Ia NAAQS. The exceedance was measured according to an EPA reference method and Therefore should be considpred valid. -; Further, the contention that the:_ asured exceedance is maz inal is hout validity. The PM—b NAAQS.. cify a level of air quality, the ettainment and maintenance of which,. based on air quality criteria .reflecting - the latest scientific knowledge and allowing for an adequate margin of safety, is requisite to the protecticrn of - the public health (see sections 108 and 109 of the Act). The NAAQS is a designated level, not a ziesignated range. of PM—la above which the air quality is consi8ered unhealthy. The commenter also contended that the PM—b exceedance of 187 pg/m S measured at the Del Paso Manor monitoring site in 1990 occurred due to extremely cold temperatures which led to an unusual number of fireplaces being in operation at the same time. The commenter therefore contends that due to this unusual and isolated chain of events, the measured exceedances should not be considered as a basis for redesignation of the Sacramento County area to nonattainment. The commenter, in this instance, has conceded that, residential wood combustion contributed to the measured exceedances of the NAAQS for PM—b. The commenter also concedes that the edances were due to the operation large number of residential wood as in a highly populated area which a significant public health risk. Site number 05-067—0006 in Sacramento: exceedances were measured on December 25, 1990 (187 pg/m3). This monitoring site is located in the county, east of the city of Sacramento. In addition, monitoring data from 1989. 1990. and 1991 indicate that Sacramento County has experienced elevated levels of PM—la. In several cases (described below), these levels represented greater than or equal to 80 percent of the PM-ia NAAQS. These observed concentrations do not represent exceedances of the PM—ia NAAQS. Nevertheless, these data were The purpose of the SIP process is indude both the area violating the PM-tO basically to identify and control such NAAQS and any area signiflcemly sources of PM—b that contribute to contributing to the violations. However, a violations of the health based standards. boUfld&y other than the county parimeter or Further, the commenter did not offer municipal boundary may be mare - supporting evidence showing that the - appropriate. Affected States utay submit unique events identified, such as cold- information indicating that, consistent with section iO7(d)(1)(A)(i),a boundary should be weather and high residential wood alternatively defined (51 FR 43848). combustion are unlikely to recur (see Citizens for Clean Air at 846—48) The EPA indicated that the “PM—b Therefore, the comments serve to SIP Development Guideliiie” (EPA. 450/ validate EPA’s decision to redesignate 2—86—001) (Guideline) contained - the area and initiate the SIP guidance on the information that should development process. be submitted to support such alternative The commenter further contends that boundaries. PM—b concentration levels which The Guideline recommends exceeded the PM—ia NAAQS in the employing the following techniques Sacramento County area during the singly or in combination to alternatively 3 years occurred in a specific define area boundaries: (1) Qualitative Sacramento County and were not analysis of the area of county.wide exceedances. The representativeness of the monitoring commenter therefore contends that if station, together with consideration of redesignation of the area is necessary, terrain, meteorological, and sources of only the portion of Sacramento County emissions; (2) spatial interpolation of air where the exceedances were measured monitoring; and (3) air quality should be redesignated. simulation by dispersion modeling The EPA provided the State of (Guideline, pages 2—9 through 2—10). California with notification that The EPA received no comments from Sacramento County should be the State concerning the boundaries for redesignated to rionattainment in the area in response to the September January of 1991 (see section 107(d)(3)(A) 22. 1992 propoial. Thus, the State’s only of the Act). In that notification, EPA relevant guidance to EPA suggests that qu ed the Stite to subiiiit thd . . . the State supports titç general ..; appropriate boundary description for . designatiân of this area as-. . :-.: ‘ . - the Sacrarnento ounty area. In a nonattainment -and, given the nature of - response dated March 15. 1991 the State California a PM—b problems, large affirmed all federally.identifled PM—to boundaries for planning purposes (see - nonattalilment areas and addressed the section bOl(d)(3)(C)). - . -- •.j . -. boundary issue as follows: :- . Further, three exceedatnces of the PM— IWle understand that ills EPA’s ‘ - 10 NAAQS have been observed in - use county boundaries as the defeult. though - Sacramento County at tWo different procedures set forth In EPA’s - monitoring sites. - - ... - documents may also be applied. Given the -Sacramento Health Cinter. Stockton nature of the emission sources coniribdting Boulevard - - tO California’s PM-iO problems. we teed to - • . think that large ulonattainmeut i al ri Site number 06-067-04001 in— - are appropriate for planning purposes. We Sacramento: an exceedance was would like an opportunity to confirm that for - measured on November i8,498 (155 each particular area, though, and will pg/rn’) and December18. 1989(158 pg! provide supplemental comments shortly. m3). This monitoring site is located in The State also requested EPA to use . the city of Sacramento. the State’s recommendations as the basis for its rulemaking. The EPA Sacramento Del Paso Manor receive no further comments from the State. and therefore proceeded to propose Sacramento County as the nonattaininent boundaries for the area. In the September 22. 1992 notice proposing to redesignate Sacramento County as nonattainment, EPA described its policy for establishing PM—ia nonattainment area boundaries: Generally, the PM—tO nonattainment area boundaries are presumed to be. as appropriate, the county. township. or other municipal subdivision in which the ambient particulate matter monitor recording the PM— 10 violation(s) is located. The EPA has presumed that such boundaries would ------- Federal Register / Vol.58, No. 243 I_Tuesday. December 21 , 1993 / Rules and Regulations 67339 collected from five different monitoring sites in the County and provide additional evidence of the scope of elevated PM—Ia concentrations in the County. Elevated PM—to Concenfrations in Saaamento County 1989 Site 06-067—0001: 139 ig/m3 Site 06-067-0002: 125 MgFm’ Site 06-067—0006: 142 ugFm’ Site 06—067—0283: 120 ig/m3 1990 Site 06—067—0001: 153 igJm3 Site 06 -067—0006: 135 pg/m3 Site 06—067—0006: 124 pglm3 Site 06-067-0010: 140 igJmi Site 06—067—0010: 134 iiaJmJ Site 06-067—0010: 120 l1g!m 1991 Site 06-067—0006: 127 rig/ma Site 06-067—0010: 134 118/rn’ The commenter that requested EPA to provide boundaries that are only a portion of the county did not specifically suggest alternative boundaries and did not conduct the analysis recommended by EPA’s policy. However, the commenter did suggest that “an extensive review of ambient air monitoring data, emission inventory data, and meteorological data could be performed” to determine a boundary for the area. Such “extensive? data collection and analysis is what the SIP development process will involve. - Previously, EPA has indicated that it would consider using its authority under section l10(k)(6) of the Act to correct the boundaries of a nonattainment area where, for example, SIP equivalent Information submitted to EPA reveals that the previous boundaries were in error (see, e.g., 56 FR 37656. notes 6—7 (August 8,1991). and 57 FR 56762—63 (November 30, 1992)). Thus, this authority provides another mechanism for the consideration of further information on this issue. Finally, PM—la air quality problems are generally areawide. The commenter concerned about the scope of the boundaries indicated that residential wood combustion contributed to at least one of the air quality exceedances monitored and also indicated that PM— 10 levels in the area are affected by motor vehicle emissions. These are precisely the types of sources that give rise to broader areawide PM—to air quality problems. Colorado—Portion of Routt County The State of Colorado submitted comments indicating that on May 28, 1991. the Routt County Commissioners adopted a PM—b ñona [ tainment boundary (or a portion of Routt County which included the city of Steamboat Springs. as well as certain surrounding areas in Routt County. The adoption incorporated a map indicating the boundary of the area in question. Subsequently, on June 20. 1991, this boundary was adopted by the Colorado Air Quality Control Commission. The State requested that EPA issue a final boundary consistent with that adopted by the State. In today’s final action, EPA has adopted a final boundary for the affected portion of Routt County that is consistent with the State’s recommendation and is taking final action to redesignate the area. Idaho—Kootensi County The EPA received many comments on its proposed nonattamment redesignation for this area. The EPA is still assessing these comments and is not making a final decision at this time. The EPA expects to make a final decision for this area within the next few months and will issue a notice in the Federal Register announcing its final decision at that time. - Idaho—Pail of Shoshone County The 1990 Amendments authorize a State, on its own initiative, to submit to EPA a revised designation for an area in that State (see section 107(dX3)(D)). The city of Pinehurst. a portion of Shoshone County, was designated nonattaimnent for PM—la by operation of law upon enactment of the 1990 Amendments (see section 107(d)J4)(B), 40 R’S8l.313 (199211. After the 1990 Amendments. EPA received information from Idaho requesting that EPA expand the nonattainment boundary for this area to include additional townships along the Silver Valley (see 58 I 37658 (August 8, 1991)). In the September22, 1992 proposal for today’s action. EPA proposed expanding the boundary consistent with the State’s request (57 FR 43849). The Idaho Department of Environmental Quality (IDEQJ submitted information indicating that it is in part rescinding its request to expand the PM—b nonattainment area boundary for Pinehurst. The IDEQ requested that EPA expand the - boundary to include an area lust slightly larger than the city of Pinehurst. The IDEQ indicated that during the SIP development process for the city of Pinehurst it obtained information that allowed ii to further refine the PM—to nonattainment boundary (or this area. Because the State has withdrawn a portion of its previous request. it is no longer pending before EPA. Therefore. in today’s action EPA is approving for redesignation to nonattainment the more circums ribed boundary requested by the State which includes an area slightly larger than the city of Pinehurst. The EPA also notes that the State has indicated to EPA that the moderate PM— 10 SIP developed for the city of Pinehurst covers the slightly expanded boundary. The EPA will assess this during its review of the moderate area SIP for the city of Pinehurst. The moderate area plan for Pinehurst is ultimately approved by EPA. and it covers the expanded areas outside the city, then it would be unnecessary for the State to submit a separate moderate area plan addressing the area encompassed in the slightly expanded bouqdary. New Mexico—Bernalillo County In the proposal for today’s action. EPA indicated that the city of Albuquerque provided information demonstrating that since a 1989 exceedance of the annual PM—to NAAQS. the same site (#35—001—1013 or “the Alameda site”) had monitored a downward trend in the annual values (57 FR 43848). The EPA further indicated that the downward trend was likely attributable at least In part to steps that the City had taken to reduce PM—la emissions.. For example. an area near the monitor that was suspected of contributing to the PM—la problem had been paved in order to reduce dust generated from various activities in the area. Nevertheless, EPA proceeded with proposing the designation because certain measures taken to reduce PM—il had not been submitted to EPA as a SIP revision and, therefore, EPA had no wa of ensuring that the measures would be permanent and federally enforceable. Since the proposal, the State of New Mexico has submitted these measures h EPA as SIPL revisions. One reS’ision involved a topsoil disturbance program that, among other things, prohibits the disturbance or removal of certain amounts of soil without a valid permit. The EPA approved this submittal in a direct final rulemaking notice published on February 23. 1993 (58 FR 10970). A second submittal contains a winter woodburning curtatiment program (or the city of Albuquerque. Section 107(d)(3)(A) of the Act provides that. among other things, “planning and control considerations’ are relevant in determining whether the Administrator should proceed with a redesignation. The EPA believes the control measures adopted by the State are addressing the PM—tO air quality problem that prompted EPA’s proposed redesignalion ------- 67340 Federal Register / Vol. 58, No. 243 / Tuesday , December 21. 1993 / Rules and Regulations for this area.’ Further, an assessment of recent data indicates that the downward trend of the annual NAAQS at the Alameda site appears to be continuing. Accordingly, at this time. EPA is not redesignating Bernalillo County as nonattainment for PM—tO. The area will retain its unclassifiable designation. Today’s action in no way precludes EPA from redesignating this area as nonatlainment at a later date should information reveal a PM—to air quality problem with either the 24-hour or annual NAAQS. In fact, in the September 22, 1992 proposal. EPA specifically indicated that it was aware of potential violations of the 24-hour NAAQS in Albuquerque and was assessing the situation. The EPA is continuing to review this issue. Washington—Part of Benton, Franklin, and Walla Walla Counties The EPA received many comments on its proposed nonattainment r designation for this area. The EPA is still assessing these comments and is not making a final decision re a ding the redesignation of this action at this time. The EPA expects to make a final decision concerning this area within the next few months and will Issue a notion in the Federal Register announcing Its final decision at that time. B. Sulfur Dioxide: District of - Columbia—Two Areas in Washington. DC , The EPA received a comment from a commenter who contended that the- area within a 1 kilometer range of the General Services Administration’s (GSA) central heating plantandthearoa within i.s kilometers of GSA ’s west beating plant should not be redesignated to nonattainment until EPA and the District of Columbia have completed the process of negotiating a compliance plan with GSA. The aforementioned compliance plan is required under the terms of the enforceable compliance agreement entered into by EPA, the District of Columbia. and GSA. It is the District’s intention to incorporate the terms of the flnel compliance plan and compliance agreement. along with a technical analysis. demonstrating that the emissions from GSA ’s two heating plants no longer cause violations of the NAAQS for SO 2 into a formal SIP revision to be submitted to EPA. A-s previously stated in the September 22, 1992 Federal Register notice (57 FR 23846). EPA proceeded with the — ‘Noic aso that planr.ing and control cons dcrationri have informed EPAs decision to defer action on the SO, areas discussed below redesignation of the two areas surrounding the GSA heating plants because the District of Columbia had not submitted the aforementioned SIP revision to EPA. Since the date of the redesignation proposal. EPA has worked very closely with the District of Columbia and GSA to resolve this issue. The District has committed to submit a SIP revision for the areas by cber 31, 1993. This SIP revision consists of requirements to reduce emissions at the sourtes in question and provide an attainment demonstration for the area. Therefore, EPA has decided not to finalize the redesignation to nonattaininent at this time, pending review of the forthcoming SIP submission. The EPA reserves the right te finalize the proposed redesignation of the area if the SIP revision submitted by the District of Columbia is ultimately disapproved by EPA. Illinois—Portion of Madison and St. Clair Counties The EPA received several comments addressing its proposed $02 nonattainnient redesignations for portions of these two counties. At the outset of the tudesignation process, EPA noti ed the Governor of Illinois that, based upon available information, EPA - believed that Madison and St. Clair Counties should be redesignated nonattainmant for SO (56 FR 16274, April22. 1991). In the Stata’s response. it largely agreed with EPA (see, e.g., 57 FR 43846). However, during the comment period on EPA’s proposed action, the Illinois Environmental Protection Agency (IEPA) submitted comments claiming that recent developmaeute may .liirnnaite the need for redesignation of these areas. The IEPA informed EPA that it is working with sources in these areas to develop permanent and enforceable permit revisions which will serve to address the $02 air quality problem in these areas. The State has committed to submit these changes to EPA in the form of a SIP revision by tober 31,1993. and as far in advance of that data as possible. Therefore, the State has requested that EPA not proceed with the nonattainment designation for these areas at this time. Others commenting on behalf of industry in these areas took a similar position to that of IEPA.N The EPA is deferring final action at this time on the nonattainment ‘On. mment raised additional issues - including aI!e ationa about the procedures and - tecbmcal basis associated with EiA’s proposed redesignation for the affected portico of disoii County Because. as iadtcated below. E PA i not taking fleal SOlon Ofl this area at this time. EPA is deferring rrrtponse to these Con ’JUeflts. redesignation for these areas in light of the recent planning efforts by the State and certain sources in the areas. However, EPA reserves the option of. issuing a nonattainment redesignation for these areas at a future date. In particular. ii the State dcesnot s’iI’mit the SIP revision for these areas by the October 31, 1993 commitment date which addresses the SO air quality- problem in these areas; EPA intends to assess whether a nonattainment redesignation for these areas should be finalized and would likely proceed with such a final redesignation at that time. Pennsylvania—Portion of Allegheny County As stated in the September 22, 1992 Federal Register notice (57 FR 23846). EPA’s rationale for proposing redesignation of the portion of Allegheny County inclusive of Lincoln. Liberty. GLassport. and Port Vue Boroughs and the city of Clairton to nonattainment is due to monitored violations of the 24-hour standard for SO 2 . The 24-hour standard was violated in 1986 and 1988. The commenters contend that the principle source of SOz emissions in the proposed nonattainment area. U.S. Steel-Claidon Works, has Invested a substantial amount of money and efibit into making enhancements to its coke oven gas desulfurizatiou facility. Furthermore, it Is suggested that the changes have led to documented - impmvements in air quality in the ClaIrton area.” The cemmenters contend that the recent actions on the part of US. Steel are adequate to protect the NAAQS for SO 2 in the proposed nonattainment area. The commenters provided information correlating the monitored exceedances with specific sulfur-removal equipment failures and outages. The commenters believe that the recent upgrading of the desulfurization facility at the Clairton Works has remedied these previous equipment malfunctions which produced the monitored exceedances of the NAAQS. Therefore, the area should not be redesignated to nonattainment, In response to above comments, EPA is encouraged by the progress made by U.S. Steel in reducing its emissions of S02. Therefore, EPA is not taking final action at this time for the “Clairton area.” The EPA will work closely with the State of Pennsylvania and Allegheny County as it codi lies these signifIcant improvements to the desulfurization facility into the federally-approved SIP for Allegheny County (through the Pennsylvania SIP). However. EPA retains the right t f!nalize the proposed redesignation of the ar-en f Allegheny ------- Federal Register / Vol. 58, No. 243 I Tuesday. December 21. 1993 / Rules and Regulations 67341 County does not submit a SIP revision for the “Clairton area” as expeditiously as possible. IV. SLgnificance of Today’s Action A. Significance for PM-b Areas redesignated as nonattainment in today’s action are subject to the applicable requirements of part D, title I of the Act and will be classified as moderate by operation of law Isee section 188(a) of the Acti. Within 18 months of the redesignation. the State is required to submit to EPA an implementation plan for the area containing, among other things. the following requirements: (1) Provisions to assure that reasonably available control measures (including reasonably available control technology) are implemented within 4 years of the redesignation: (2) a permit program meeting the requirements oF section 173 governing the construction and operation of new and modified major stationary sources of PM—b: (3) quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrates reasonable further progress, as defined in section 171(1). toward timely attainment; and (4) either a demonstration (including air quality modeling) that the plan will provide for attainment of the PM—b NAAQS as expeditiously as practicable, but no later than the end of the sixth calendar year after the area’s designation as nonattainment, or a demonstration that attainment by such date is impracticable (see, e.g., sections 188(c). 189(a), 189(c), and 172(c) of the Act). The EPA has issued detailed guidance on the statutory requirements applicable to moderate PM-b nonattainment area (see 57 FR 13498 (April 16. 1992). and 57 FR 18070 (Apnl 28. 1992)). The State is also required to submit contingency measures, pursuant to section 172(c)(9) of the Act, which are to take effect without further action by the State or EPA, upon a determination by EPA that an area has Failed to make reasonable further progress or attain the PM—b NAAQS by the applicable attainment date (see 57 FR 13510— 13512. 13543—13544). The EPA is hereby establishing the schedule for submission of contingency measures as called For iii section 172(b) of the Act. The affected States are to submit contingency measures for the areas redesignated nonattaininent for PM—iD in today’s action within 18 months of redesignation. B. Significance for SO 2 The EPA is. by today’s action, redesignating two areas as nonattainment for both the primary and secondary standards for SO 2 . The affected States must submit implementation plans to EPA within 18 months after promulgation of the nonattainment designations for SO 2 . meeting the requirements of part D, title lot the Act (see section 191(a) of the Act). The implementation plans must provide for attainment of the SO 2 NAAQS as expeditiously as practicable, but no later than 5 years from the date of the final nonattainmant designation (see section 192(a) of the Acti. As with PM-b, EPA has issued detailed guidance on the development of SIP’s for SO 2 nonattainment areas that are consistent with part 0, title 1 of the Act (see 57 FR 13498). VL Miscellaneous A. Regulafor,FIet ibiIityAct Under the Regulatory Flexibility Act. 5 U.S.C 600 et seq.. EPA must prepare a regulatory flexibility analysis sic ic ing the impact of any proposed or final rule on small entities (5 U.S.C 603 and 604). Alternatively, EPA may certify that the rule will not have a significant economic impact on a substantial number of small entities (5 U.S.C 605(b)I. Small entities include small businesses, small not-for’profit; enterprises, and government entities with jurisdiction over populations of less than 50,000. Redosignation of an area to nonattainment under section 107(d)(3) of the Act does not impose any new requirements on small entities. Redesignation Is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. To the extent that an affected State must adopt new regulations, based on an area’s nonattainment status, EPA will review the effect that those actions have on small entities at the time the State submits those regulations. I certify that the redesignation action announced today will not have a significant economic impact on a substantial number of small entities. Petitions for judicial review of this action must be filed as provided by section 307(b)(1) of the Act within February 22. 1994. Filing an administrative petition for reconsideration of the rule for purposes of judicial review norutend the time within which a petition for judicial review of the rule may be filed, and shall not postpone the effectiveness of the rule (see section 307(b)(1)). This action may not be challenged in any subsequent proceedings ta enforce its requuements (see section 307(b)(2)). VIL Executive Order 12866 The Office of Management and Budget has exempted this rule from the requirements of siction 6 of Executive Order 12866. List of Subjects in 40 Q’R ! 81 Environmental protection. Air pollution control, National parks. Wilderness areas. Dated: Decembu 13. 1993. Carol M , Brownar, Administrator. Therefore, 40 O ’R part 81 is amended as follows: - PART 81—(AMENDEDJ 1. The authority citation for pail 81 continues to read as follows: Authority 42 U.S.C. 7401-767 1q 2. Section 81.303 s amended in the table for “Arizona—PM—b” by adding a second entry for “Gila County” and by adding an entry for “Mohave County” to read as follows: §81.303 ArIzona. a . a S Arizona—PM—1O Designation ciassiscation Designated area Date Type Date Type Gda County (pa). Payson: liON, Sections 1-3, 10-15, 22—27, and 34—36 of R9E; January 20, 1994 Nonattainment January 20. 1994 Moderate TIIN, Sections 1—3, 10—15, 22-27 and 34—36 of R9E; ItO— I iN, R1OE. liON, Sections 4—9, 16—21, and 28—33 of RIlE; Ti iN, Sections 4—9, 16—21, and 28—33 of Ri IE. ------- 67342 Federal Register I Vol. 58. No. 243 1 Tuesday. December 21. 1993 / Rules and Regulations Arizor —PM-1 0—Continued - Designated area Date o at a Type . Date Type Metiave County (Part): Bullhead Coy: T21N, R20-21W, n*rSng lake Mead Na nal January 20, 1994 Nonaltainment. January20. 1994 Modo . Recreation Area: T2ON. R20-Q2W: TI9N, R21— W eschjd- uig Port Mohave lidan Rase vaDon , . I S * * . S S 3. Section 81.305 is amended in the table for ‘California—PM—iO Nonattainment Areas” by adding entries for “Sac- ramento County” and “San Bernadino County” to read as follows: §81.305 CalifornIa. a S S • S CALIF0RNIA—PM-1O NONAUAr IMENT AREAS Designated area D e on Q on Date iype Date Type . . . Sacramento County S January20. 1994 Nouenter 15, is a January 20.1994 . Nonaflairvnerd. Noft .ud1. ‘ Nona auerd. - S Jam y 20, 1994 Moderate. N ttmac 15,, UodQrate , , Jar sy 20.1994 Wo ate. Bemadino, Inyo, and Kern Counties Searles Vaaey pla,vting area Hydrologlo U ‘18090205. San Bemadoo Coudy (patfl esckadei that portion located hi the Searles.VaUey Planting area, and exdidng that area hi the South CoastA Badft - . S S . a — S S S • . a a 4. Section 81:306 is amended in the table for ‘Colorado—PM-lO Nonattainment Areas” by addingan entry for “Routt County” to read as follows: §81.306 Colorado. - - a a a • a ------- Federal Register! VoL 58, No. 243 / Tuesday, December 21. 1993 I Rules and Regulations 67343. CoLoRADo—PM—b NONATTAINMe4T AREAS Ded ted area Date Type ‘ Date Type I . I Ro County : ___ The Steantoat Sfrnjs Axes Airshed as or1o $ed by the Roidi January 30,1994. N w Ial ,..,ent . Janiety 30.1994 Moderate. Coim Conwriesioners on May 28. 1991 ar th. Colorado Ak Otofity Contiol Con saionen June 20.1991. . 8. Section 81.313 Is amended in the table for ‘ldaho—PM—iO Nonattainment Areas” by adding an entry for “Shoshona County” to read as follows: 481.313 Idaho. S • • • . tDAHO—PM-1O NONATIAINMENT AREAS o_ area o_ -- c-.-n Date Type — Type S hone Co dy (Pw : 1 t w i c i Stk J ne Coitty e, 1 vlqg the kdtlat PM .-10 . in- Januesy 20,1994 Nwk.ilaI.ubId. Jaremy 20,1994 &ate. dng the Swati list 01 Sordheeat 01 Sec i 31 of Range 2 s , T a.ih 49; Soidh pswt 01 S i of Range 2 seat, To u 49 north Se i 601 Range 2 e , • - . . . T nst 48 nasiheast hit 01 Se ’on 6 01 Range 2 e , Tcwnsh 48 nortliweat queller 01 sectIon 801 Range 2 east, TonneM, 48 Noith arid Oit poillon 01 Shoelione cow y designated no , 1 iteliwlw* for P 11-40 n Nàven*er . . 15, 1990. . - • Clty.d P Wuet ........................________ N aiidw 15 iesa Na...&J. er1. Noventer 15, 199 Moderate. . S . S • . • • . S • 7. Section 81.327 is amended. Inihe table-for “Montana—PM—b Nonattainment Areas” by adding an entry for “Sanders County” to read as follows: -. 481.327 Montana. • S S S S Mo NTANA—PM-I 0 NONATrAINMENT AREAS Desk — area Date Type Dale Type Sanders County (Past): Thoir ,son F 1ts and vicinity: incluc 5ng the following Sections: Janijaiy 20, 1994 Nonitainnent. Januwy 20.1994 Moderate R29W, T2IN, Sechons: 5,6. 7.8.9. 10, 15, and 16. S S • • ------- 7344 Federal Register I Vol. 58, No. 243 / Tuesday. December 21. 1993 / Rules and Regulations 8. Section 81.333 is amended by ounty” to read as follows: adding a (able for “New York—PM—b” and by adding an entry “New York 181.333 NewYoilc. a • a a a NEw Y0RK—PM-1 0 Designated area . Des i gna on Qassthcation Date - Type Date Type New York County January 20. 1994 Nonattainment. January 20, 1994 Moderate. • • . a • 9. Section 81.338 is amended by amending the table for “Oregon—PM—to Nonattainment Areas” by adding an entry for “Lane County” lo read as follows: §81.338 Oregon. • • • • a OREG0N—PM--1O NONAUA NMENT AREAS I a Designated area Date . Type . Date -. ‘ Type . . . . . a , . S .ane Coi ty (part) Oakndge: The Urban Growth boundary area.......... January 20, 1994 Nonattainment. Januaiy 20,1994 Moderate. • • a S S to. Section 81.339 is amended in the table for “Pennsylvania—S02” by revising the entry for “Warren County” to read as follows: §81.339 PennsylvanIa. a • a • S ------- Federal Register / VoL 58. No. 243 / Tuesday, December 21, 1993 / Rules and Regulations 67345 PENNSYLVANIA— .S0 2 area s*wi Ierds Does nat meet . 9ed Better than - • • • a • a a Vi. P4otlhwest Peansy$vania Intrastate ACCIt (A) Warren CouMy Conewango T*p . -___________ a ..._...._ _.._. a a a .___..___._ . • x a a • a S • Mend T p aerendon Born ._. _.__-__ WaiTenBoro Pleasant T ap ._________ Ginde Twp • . S S • a a ii. Section 81.349 is amended in the table for “West Virginia—PM—b Nonattainment Areas” by adding an entry for part of “Brooke County” and ‘Hancock County.” to read as follows: §81.349 West VirgInia. a a a • • WEST VIR G i N IA—PM-i 0 NONAT1AINMENT AREAS Designated area D O Date Type Date Type • . a • • 4 . • S Hancod and Breoke CounOes (Pad) The city at Walden Jantery 20.1994 Nonettakenent. Jarn y 20.1994 Mode . • a a a a • a S a S S S S 12. Section 81.349 is amended in the table for “West Virginia—SOs ” by adding an entry for ‘Hancec± County” to read as follows: * 81.349 West Virginia. • a S S S WEST VIRGINIA—SO 2 a ma Does not meet . Better than . . a a • • S Hancock County (Pan) The city of Weiflon , including Buder and Cby Magustedat Dtstdcts Remainder of State .... ....... a a ——-.. - -.-. — ..-—— -...- ------- Federal Register 1 Vol. 58. No. 66 / Thursday. April 8, 1993 / Proposed Rules - A) (,/ Ib) Effective date. This regulation becomes ef1 ctive at 8:45 p.m. July 5. 1993. It terminates at 9:30 p.m. July 5. 1993 unless terminated sooner by the Captain of the Port. The rain data for this project Is July 11. 1993 at the same limes. (c) Regulations. In accordance with the general regulations In 165.23 of this part, entry into or movement within this zone Is prohibited unless authorized by the Captain of the Port or his on scene representative. - Dated: March 29, 1993. H. Bruce Dickey. Captain. U.S. Coast Guard. Captain of the Pert. Longisland Sound. LFR Dcc. 93-8271 Filed 4—7—93; 8:45 amj Su.LIlS coca 4S1G-14-M POSTAL SERVICE 39 CFR Part 111 Purchasing of NDCBUs end Parcel Lockers AGENCY: Postal Service. ACTION: Proposed nile. SUMIIARY The proposed rule change would modify regulations on centralized delivery receptacles by eliminating the regulation, Domestic Mail Manual § 151.4, that requires procurements of neighborhood delivery and collection box units (NDCBUs) and parcel lockers to be handled at the local level in lots not to exceed 100 units. The proposed change would not modify Postal Service regulations for Installing. maintaining and replacing NDCBUs and parcel lockers nor place any additional requirements on mailers for recipients of mall. DATES: Comments must be received on or before May 10. 1993. ADDRESSES: Written comments should be addressed to the Approved Sources Program Manager. Procurement Quality Assurance. U.S. Postal Service, 475 L Enfant Plaza SW. N. Bldg. Suite 4000. Washington. DC 20260-6204. Copies of written comments will be available for public Inspection between 9 am. and 4 p.m.. Monday through Friday. in Suite 4000.955 L’Enfant Plaza SW., Washington. DC. FOR FURTHER INFORMATION CONTACT: Mark NepI (202) 268—4642. SUPPLEMENTARY INFORMATION: The proposed rule change would delete Domestic Mail Manual § 151.4, because purchasing units in lots of 100 at the local level Is not efficient or practical. and does not serve the purpose for which it was adopted. See 46 FR. 14263 (March 5, 1981). When the Postal Service recently restructured the - number of field procurement offices - decreased from 89 to 10. making local purchases Impractical. Also, at the time of the original rule tbe Postal Service bought under 20,000 unIts yearly, while It now buys about 100,000 NDCBUs and parcel lockers yearly. These purchases are made directly from preapproved suppliers. The current rule burdens the Postal Service with e rsselve administrative, quality control, and purchasing costs. it also places extensive costs upon suppliers who choose to participate in numerous procurements. The many small contracts (at least 1,000 per year) have also made it difficult to ensure consistent, acceptable product quality. In 1981 some companies and ozgiinlz*tlons voiced concerns that the procurement of central delivery equipment would negatively Impact suppliers and distributors of related products, Including apartment mall receptacles. These concerns never materialized. The change will not affect the approval of currently authorized -. manufacturers. Although exempt from the requirements of the Administrative Procedure Act (5 U.S C 553 (b).ic)) - regarding proposed rulemaking by 39 U.S.C 410(a), the Postal Service Invites rnn ment on the following proposed revision of the DOJOOStIn Mail Manual, which Is Incorporated by reference In the Federal RegIster. 39 CFR 111.1. List of Subjects In 3SCFRParI 111 Postal Service. - PART 150—COLLECTiON AND DELIVERY -, 1. The authority citation for 39 CFR part iii continues to read as follows: Authority 5 U.S.C. 552(a); 39 U.S.C. 101. 401,403,404. 3001—3011, 3201—3219.3403— 3406.3621.5001. 4151.4 (Removed] 2. Delete § 151.4. whIch reads as follows: 151.4 Receptacles TO BE purchased by the Peetal Ser.lce. - Neighborhood delivery and collection box units (NDChUs) and parcel lockers to be purchased by the Postal Service must be procured In lots not exceeding 100 unIts. Amendments to the provisions of this section may be made only after notice Is published in the Federal Register with opportunity for public comment. - An appropriate amendment to 39 CFR 111.3 to reflectth ls change wlllbe published lithe proposal Is adopted. Stanley F. Mires, Chief Counsel. Legislative DMsIwt. (FR Dcc. 93—6250 FIled 4-7—93:8:45 aml s&&ito coca iris-ia-s ENVIRONMENTAL PROTECTION AGENCY 4OCFRPar I52 (NM-12-1-1456; FRL-4812-1j Approval end Promulgation of Air Quality Implementation Plans; New Mexico; Revision to the Stats Implementation Plan AddressIng PM-. 101cr Anthony AGENCY. Environmental Protection Agency (EPA). ACTION: Proposed ruJmn 1r4ng. SUMMARY: This action proposes approval of a revision to the New Mexico State Implementation Plan (SW) addressing PM-TO for Anthony, New Mexico. including a request from the State. per section 1 88( I) of the amended Clean Air Act (Act), for a waiver of the aI$ Inment datg for Anthony. EPA may grant such a waiver where EPA determines that - anthropogenic sources do notcontrlbute significantly to violations of the PM-b National Ambient Air Quality Standards (NAAQS) In the area. PM-TO Is defined - as particulate matter with an aerodynamic diameter less than or equal toanoni ln a ibOmlaometers. DATES: Comments on this proposed action must be received In writing on or before May 10. 1993. ADDRESSES: Written comments on this action should be addressed to Mr. Thomas H. Dlggs, Chief, PlRnnlng Section. at the EPA Regional Office listed below. Copies of the documents relevant to this proposed action are available for public inspection during normal business hours at the following locations. The interested persons wanting to examine these documents should make an appointment with the appropriate office at least twenty-four hours before the visiting day. - U.S. Environmental Protection Agency. Region 6, Air Programs Branch (6T- AP), 1445 Ross Avenue, Dallas, Texas 75202—2733. New Mmaco Environment Department, Air Quality Bureau. 1190 St. Francis Drive, room So. 2100. Santa Fe, New, Mexico 87503. FOR FURTHER INFORMATION CONTACT Mr.- Mark Sather, Pknning Section (6T—AP), Air Programs Branch, U.S. EPA Region 18190 ------- Federal Register / VoL 58, No. 86 / Thursday, Apr11 8, 1993 I Proposed Rules 18191 8,1445 Roes Avenue. Dallas, Texas - nonatta1nm t ajea. was reviewed sources do not algnlficantly contribute 75202—2733, Telephone (214) 655—7258. aga nat the apeliceble requirements. The to PM—b levels that exceed the PM—b sI. sJ Tarn p jAy m . Act also specibes that those moderate ambient standards In the area. As PM-iD no” ’ ” t areas designated outilned below, the State of New L Backçosad cp tsab ment under section 107(d)(4) Mexico’s SW revision for PM-iD Anthony, New Me .d o , was - of the Act were to submit SW. to EPA concerning Anthony. a moderate PM. - - - da4patiia nonaIt 1n v1a , t for PM-iD - - by November15. 1991, and outlined . nonat nment area. was reviewed and rkisalfied as moderate under certain required Items to be Included egalnat the applicable requirements. The sections 107(d)(4XB ) and 188(a) of the the SIPs. These required Items, due reader Is referred to the Anthony PM- Act. upon ona’tnent of the Clean Air November 15, 1991, unless otherwise- 10 SIP submittal and EPA’. uupporllng Act Amendments (CAAA) of 1990.’ noted. Include: (1) A cmprehm a4ve, technical Information for pertinent Please reference 56 Federal Register acourate, and current inventory of actual details regarding each requirement (FR) 56694 (NovemberS. 1991).and 57 emIssions from all sources of PM-lOin Them Items are available for public FR 13498,13537 (April 16. 1992). The the mmaff.lnment area (section -. . review at the addresses Ind icated above. - requliemontsfor 172(c)(3)oftheActh(2)apermlt- fl.Today’sA’aiou - s -. rno P 4-iOLttalnment areas program to be submitted by Juno 30, are set out In subparts I and 4 of part 1992, whIch meets the requirements of. Section 1 10(k) of the Act sets out provisions governing EPA’. review of D. title I of the Act. Subpart 1 contaIns section 173 for the construction nd SIP submittal. (see 57 FR 13565-13566). provisions generally apnilcable to nil operation of new and modified major In today’. action, EPA Is proposing to nona Alnm t areas an subuart 4 stationary source. of PM-1O (section grant approval of the plan revision. contains provisions .peclflca ly 189(aliWAfl: (3) a demonstration Including waiver of the moderate area applIcab1 to PM-b nonatthlnment (Indu air ouality modeling) that the attainment date, submitted to EPA on areas. At times, subparts 1 and 4 overlap plea provides (or attainment of the PM- November 12,1991, for Anthony, New - or conflict. The EPA has attempted to 10 NatIonal Ambient Au QUS IIt3? Mexico because It meets all of t e - clarify the relationship among these Standards (NAAQS) as expeditioUslY as -applicabl, requirements of the Act. varlousprovlslone in the General p tJcshle btjt later then DecembeL.: Preamble and, as appropriate, In today’. 31.1994, or a demonstr tion that. Analysis of State Submission notice. - ..- at t aInment by that date Is ImPract Icable The EPA baa issued a ’General . (section 189(aX1XB)); (4) provisions to Preamble” describing the A’s -. i . . ti at e h1y Available -: The Act reQUires States to observe preliminary views on bow the EPA- Qm MeaSUNS u Aa , Inchidleg -certain proceàural requirements In intend . to review SIPs and SIP revisions Jlaem Iy Available Control developing Implementation plane and submitted under title I of the Act, Tethno1 cn. amtmi cif PM- - plan revisions for submission to EPA. Including those State submittal. -- -. 10 wIll be implemented no - Section 110(a)(2) of the Act provides containing moderate PM4O . i)ecember 10,1993 (sections 172(cX l) that each Imple *at4nn fan nonattalninent area S W requirements and 189(a)(l)(Cfl. For . e. submitted by a State must be adopted (see generally 57 FR 13498 (April 16, lnaig ficant (de mlnlmls) quantitie. of after reasonable notice end public 1992) and 57 FR 18070 (April 28. p - o, the EPA’s policy Is that uld hearing? See also section 110(1) of the 1992)). The reader should refer to the be unreasonable and would not -. Act Also, the EPA must determine - General Preamble for a wore detallOd constitute RAQiI to require controls on whether a submittal is complete and discussion of the Interpretations of title source (please referenceS? FR therefore w .ante further EPA review I advanced in teds ‘sproposal and the - 13540). Also, su RAQd and action (see Section ib0(k)(b) and suoporting mlionals. In today’s ___ 1 ,ifamsiHng action on the Anthony, New end RACF, technical and econnvnlnal FR 13585). The EPA’s completeness ___ Oimth llity determinations are be criteria for SW submittals are set out at - Wex1 , moderate PM-b SW, the EPA- - (57 FR 13540-44); - 40 Code of Federal Regulations (CFR) Is proposing to apply Its Interpretations. quantltative 4 1 on reduction - - part 51, appendIx V (1991), as amended tnH ig Into consideration the spedflc milestones Which are to be achle ed - oy 56 FR 42216 (August 26. 1991). The factual Issues presented. Thus, the EPA EPA attempts to make comoletenees .w111 considerany timely submitted--- - ‘ ryth1OO veers until the area Is determinations wIthin 60 Jays of - ildesignated Sitalnm,nt and which _____ receiving a subinladon. However, a - co ’ ts before tatting final action on demonstrate reasonable further progress - submittal Is deemed complete by By o dated - -. (RFPJ toward attaining the PM-b -. 1991, the Governor of New - NAAQS (sectloi 189(c)); Ce) - - operation of law If a completeness detei,n lnaHon Is not made by EPA six submitted to EPA the SIP revision amtlngancy measures due Novembe - - months after receipt of the s ih nl&on PM—ID concerning Anthony t’iew - - 15, 1993 (please reference 57 FR 13543), - After providing adequate notice, the ___ that are to be Implemented If EPA - - Meadco that was intended to MUsty determines that the felled State of New Mexico held a public certain Clean Air Ad requirements due; wake itpp or to aitain the unwary - hearing on November 8, 1991, to entertain public coñmrent on the on November15. 1991w As outlined standards by the spplicabfe daiS Implementatlnn olan for Anthony. below, the State of Now MaY4o ’s SW (section 172(cX9)); and (7) control - - Following the pii 1Ic hearing, the plan revision for PM—b concerning Mhm y , twoderste PM-b - - - - requirements for major stationary - - was adopted by the State and signed by _______ - - - sources of PM—ID precursors, unless the the Governor on November 8. 1991. The _____ EPA determines Inappropriate. The Ad, EPA - ____ in section 189(e), states th&t COfltrOI November 12,1991. ass proposed — i-’- that do aol moat i sb.t requirements applicable to major - — 1 _ j• blaot r qaollty to a stationary sourom of PM-b will also be revision to the SW. doUS l mOat) lb. P 1 540 . .*.. ..l applicable to major stationarY sources of - - “-dI gus. Pub. LN0 101- ‘S.ctloa 172(cX7) of lb. Ad isquirsi that plo esa r sw. neej. -. PM-b precursors, except where the --. _______ moot lbs - M Aat.es — -&sz U.S.C. rear at q. - Administrator determines that such •, a ’i 1fovl.baosd— -’ 11 .3U). - ------- 11192 F.der.1 Regjdea L ‘JoL 5L No.66 1 Thi adey. ApriL L 1993 1 Pi ieaed Ias Secthxi 172(cJ(3) of the AaLrnq.kss that nonaft tnm nt plan provisions IncIude ccrnprehen v,, a ste . .and current from ii! iwwi afze?.vmit po1 tz I D .h. r i ubwit d hr m oaa rr& - —- ’ AnIh.au! p c_ ,mL.af 1 m lmm . M . ___ t1 ai inventoty r po4nt sn atm for ___end wfl& eIà I both the Anthony nmattefmneotatea a eepar .Vids) I and for Dana Me entT.The __________ tonatt ent areel, Ilketid Dans ‘ ‘ ‘ • Ana County b thtMthany - PMIO NAAQSbyDat mb& 3T.1W4 , non tt.1nm tg , the Stete calculated o tons/year of PM-1 - - - .I--1 . . ... from. • M” & the tnIt PI&-1a — . w âLiiiu ,Jy ,sr foai nonattat ntasSumiaiLu ceitain ease (39.7 Iá .ar d ’ ’ C ____ - unp..4 rena 9. yesr1xmen modailng) . hr 41tg paved rr.114 PCrDn meidd. fs State caicelatsd 72.1 thlsiyref PM— 10 einl,4 .frem p t uu.w a1 502.3M s#y ___ ho a tate L . 1L o 1 C Ri y e . 4 g 10 —’ due Thea . . signt6omt lya M ssI - . v ahendth.Stata’s’ b say.omt. A hen a eeU1 L • overwh&mfn 3 Iy domf eased . . PM—to amblant c i trationa In the J4 source _ . L __ I untfMatblvcou Quabra.. / - The & i h an(soun aflhMIU Dons Ass County • - cumb Anthony) Is mmatzthutpo snfc._____ wãn Eo sail from part1afl - - & areas su aa wel.mansgedrari4á and dasert ..u fndknt .wI in the Inventory. Moreover. ahrnpo9rr.fr -. sources u.s whole. after the ImplementatIon fi JIfrPm .tlfli* The SIP revtaion was revIewed by EPA . .h . mtfr . ft , m ft sJ with the corsple reer teafa ‘uicef above. A Iseea J ,JDecem 30,’ - 1991. was & 1 , 5 rded to the Governor tndI. -fln ± mp4 .tuui . eth u”hv iMu.t awf the neat pito ba ken tnthe r, ASuded,tn - todey’ . 1u. . EPA propoms to ipperve the New I dco PM-t0 S W submlttat for Anthony end h It pithily comment an theactInu. . radIu&of hn ,.y . on ambient PM-to omissions ware cond a hi dftcent .ss ómenbyd!apersfon modithig & M india P jtht..uun eendaItather *_in _ — andiw u ,djuu&arw Insi nmcenr 3. N IfoenSomas,RauIui. Peme Thu 3t d1f.w ardawb reified ArQ-I y re vZk ss (A 7 799 In ardor toarist reqe ’ en In sectIonal23 end ‘ 1.jtiXA)etth. • Act for restIom and upomdan of new end win& 1 of w1th .thsSInIn amd en&A Cez an .June25 .19 wsm * 3. • lot, for a *4n oithadaadsrd 1 - i.,k.ya the A inf.ly.frw that nt i ithro c sourcee a 10 contrlb i ____ - • - violation of the PM-to r—’-- InI area.” SectIon 199 (11 also pervidis that the AdminiaDateriney waive wig . I ti&tw.i.t ajqjfli ubEOto uurfout Z- 30 ncnatt unt “whom the that - intLwpI .wjwi af PM-tO Jo nut conbthtd . 4 .tft - .”Pytu the ‘dolation. of the PM-tO . Ii1 [ In the sme.EP has lemed dmftg ñdaucu ad&amfng the lLupluia wtailiOU of c on t (O See ? FR 19705 3 19921. The theft guf ce d a lb 1L . qi . uu of aedion 105(i thd attamp to the tare legat tuidhi end cl , ihu,v . in partI . EPA rt .d that lnterpzet on, of uui .Iuu That hodt Oabawthes%dtEho—-- . . 1 j , ama wan renIndi - Ot 1tf 5l nuwzviat Utt 1 .rn.UUt 9 ____ - souroarbuto 4 .l1k t1 I a vIne ofth,PM- 1% A thwerw would notbe v .4i . .Mfred for the - foreeeeeble•& ui. if 1. wul a ipe . . . Rn t da undir . ctIon 188 ( f ), the atthkm Jots appfrcabfr threw. w be ’vece Thur. th inndar er iiiaw..r .th -: -5 pi.slfr.bI. but ne latarthan . - - Doceabsi 31 .1994(9.. Iin . 189(eXli(B]Wofth. M t Mt u4. the Stat. mud share thts”’ by DWnun 1 ” 33, . bectlan 1aa(. I13W) ifl - - Stata o M - dsmmi 4tbsLt .ly of the- NAAQ tinAathong is • hi Th.4J4D d Iàtb) because there simply w J l eatbeen appL ..blb . .n ..L.. . ...t date tiat the ewe cannot pru cebtysflak th.aren - Mu to t 1%,i WIIJ&kteII it.& - - • a.L...t_me. barn the u.Jh ,u. .L. ......Is -the mom s it test that bngreea . noeaDaIntewar. ss I4maMa toisn s a,e-t no tons/yenrJbam ahr ther eappart A .....i I fl ji th -• .H r ” . afthePhb -l9____ - 1n . for • -. , I AM1I av.fl. ’ _Pb -19.. P - —-‘---‘ - • - 4 ef L.. e. - meesuTes Anthon i rotLpaseeat t.qmfrems1Ip _IhetIn, eft.L....L.tbn possible fitti ottb. PM-IA . . ,dsnet • NAAQ$ The oomwh1 . 1 gIy - sources &TM -IAf ’ .tp 4 . the - • 4hePM4OPMAt *u. zvlre ’ef Anthoav area am urn . 1IIh ..1w .ar 11f . anL statutweeseu . - -- co.st ea_&g.L:: M he.weythat . ...JS _______ - render a pzovlslonmearore • nullity. ____ - he yre ry gIdanoe IPA a ,snesJ - lnterpretod oaofuuctlon rMI!f 1oavei ___________ this rasuft. togiv.mom4n teg .r ______ sten rfe ssc 189(1 ) endteen r . that a peisot1e yanJeaIngwsi—.. of’s __________ modmete me. att urast te ___ ____ wee granted ssm flhent with ___ ______ legal standard set out In the AntUnder ______ thIs .. iutet1en . e __ .L.. arm mebfng . - .r.-.-m .t - fdsalbed belowLcro not IYt ,I .t a1gal r Ilfly in v n of the PM-10 I N AAQSIn tha AnI! iwiy area. The Stat. efnrs haa __ In the S W a waiver if the . “. ‘“ ______ ____________ dat . for £ thony. -: ‘ a — wa omare —’y 8vc on t8a(f [ kth. •- -It - hr. —iS C , . .L . ‘f - •; he Rdmiofrtitar-may” )uâIv. . enLfc tok fLtL(tiat - - ------- federal RegIster 1 VoL 58 No.66 F Thursday, AprIl 1, 1993 F Propdsed Rules - sew sig&fi imtly to violation of the PM-b standard, EPA must also determine that anthropogenic sources In the area do not contribute ,IgnlRcantly to violation of the PM—b NAAQS before granting such an at Inm t date waiver for a moderate area. If such a determination Is made, then the . tf Inynant date for such a moderate area could be waived - and the area would not be rrlan’ fled as serious. 3 The contribution of reesonbbly controlled anthropogenic endrelons to exceedancas of the PM-jo NAAQS In Anthony were estimated considering, among other th4ng. , emissions Inventory Information, dispersion modeling and particulate analysis of filters from afr quality sampling. Filters from 1989 and 1990. IncludIng 1989 PM—b excoedcs , of the 24-hour NAAQS (greater than 150 pg/rn’), were analyzed by the State. The analyses showed that the particulate. on the filters, for both hlghandloww lnddaye,w ,re characteristic of the local soil • compositions. The filter, had a large coastal component, Indicating that airborne soil was the dnminant contributor to the ambient PM40 -: ‘ Dnvsntr ons. Including the 1989 24- hour PM—b exceedancas. The State also conducted a point source modeling analysis. The analysis Included point sources within a 50 kilometer radius of Anthony, Including some point sources within the State of Texas. The Industrial Source Complex Short-term (ISC ST) model was used In • the evaluation, and th mavimum • predicted 24-hour Impact from • historical and current point sources wà • 2.86 pg/rn’ of PM—b. The cumulative annual average was predicted to be 0.69 ig/m ’ of PM—b. Th modeling shows that Industrial PM—jo point source emrjgsjons tviatgnlflrisntly affect the Anthony nonatlainment area. - The PM—b ml’ Ion Inventory for Anthony further shows that anthropogenic sources as a whole Ce. point source emisMons unpaved roe n Iona) contribute less than 40 tons per year to the Anthony area ambient air. In terms of ambient air quality Impact. EPA estimates that anthropogenic sources us a whole contribute 1... than 5 pg/rn’ to the violation of the 24-hour PM-b NAAQS In Anthony and less than 1 pg/rn’ to the violation of the annual NAAQ . - Accordingly, EPA believes that anthropogenic sources do not contribute iignlflr ndy to the violation of the PM- 10 NAAQS In the Anthony nonaftaininent area and that the - Imposition of serious att Imnm t requirements would not advance the statutes PM—b *ft.1nni nt objective in any slgnl& nt way. Therefore, EPA I, proposing to waive the moderate area attainment date fur this area as authorized under section 188(f) of the Act. Further tedmifal Information supporting EPA’i proposed action is available at the U.s. PA address Indicated above. 5. *AQA and RACY for Control of PM— 10 - longstanding definition of RACY Is the iowest emission limitation that a particular source Is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility (see 57 FR 13541). Thus, EPA recommends that available control . - technology be applied to those Iidstlng sources In the area that are reasonable to control in light of the attainment needs of the area and the feasibility of controls.’ A State should submit a reasoned Justification for partial or full rejection of any available control measure (Including any available control technology) that explains, with appropriate documentation, why each rejected control measure Is infeasible or otherwise unreasonable and, therefore, does not constitute RA I (or RACY) for the area. In those PM—b nnn ttRIIrnlent -areas where mobile sources ‘ Igr’Rcontly contribute to the PM—b air qtrality problem, States also must address the section 1080) transportation centre? measures (see 57 PR 13581). The State of New Mexico In the Anthony SIP reviewed RAQII4 and RACY for control of PM—b, considering the guidance put forth by EPA In the April 2, 1991. Memorandum from John ( ‘ .nIrsgnI to the Regional AirDivimon - Directors entitled “PM-la Moderate Area SIP Guidance: Final Staff Work - Product”. This guidance we. largely Incorporated Into the Generel Preamble. -Following Is an analysis of the measures employed to control PM-la In Anthony, New Mexico. - :... - a. Unpaved roads. About one third of the streets In Anthony (about 10 muss) are unpaved. Qzrrent control measures to suppress road dust Include pdwlng toll spraying) roads and double penetrating roads (grading followed by. treatment with oil and large te, followed by treatment witho an s rnaU aggregate). Priming roads helps suppress dust for about a year and double penetration helps suppress dust for about five years. In 1990. four streets were primed In Anthony and other streets were treated by double penetration in cotijunction with the Installation of new sewer lines. These measures will continue until funds are available for paving the remAining unpaved public roads In Anthony. ‘ Done Ma County and State funds, t road projects are conducted per year in each State Road Co n’nIeIoner DIstrict. As noted, the Initial moderate PM-la noñattalnment areas must submit provisions to assure that RAQi4 ( lndwllng RACY) are Implemented no later than December 10, 1993 (see iectlnni 172(c)(l) and l89(aXl)(C)). The General Preamble contains a detailed discussion of EPA’. fntw noiafion of the RAQ.1 (including RACT) reoukement (see 57 FR 13539—13545 awlS? FR 13560-13581). The EPA’s bihirpretatlon of thIs requirement is set out here only. inbroadterma. - The State should first Identify - . - available control measures, evaluating - them for their reasonableness In light of ____ the feasibility of the controls and the tainni1Uit needs of the area. A State may reject an available control measure lithe measure Is technolcglcally h if,..lb le iwthecostofthecontrol ls ___ • unreasonable. The SIP must - - demonstrate attAinment of the NAAQS as expeditiously is pr 5cticable but no later than December 31. 1994 (unless the State demonstrates that attainment by that date Isimpracticable). Therefore, If - - a State adopts less than all available - measures but demonstrates, adequately -. and appropriately, that RFP and ___ attainment of the PM-b NAAQS is - • assured,andappllcatlonofallsuch - available measure. would not re.ult in • - . tt 1ntn nt any fester, then a pian vhlth • -iquIr.. Implementation of less than all -. available measures maybe approved as meeting the RAQd requirement. As a suggested starting point for determining RAQVI. EPA has Identified available control measures for sources of fugitive dust, residential wood combustion, and ____ presaibed burning (see 57 FR 18072— 18074 (April 28, b992)). The State - ______ should add to the list of available.- •P4O . I iá, measures In an area any measures thit _______ 11 sudoco could quthi7 uwsfv _____ public cAnhincoiters dsmfln.tT tu rniy ___________ d sbv - ‘1L ’i - well be reasonably avallableins • - - ___ thu d wiv st aloes. £ - - f Thu D’A h11 iuuusd W’ ’ k 1 du oes udg th IO1UtN. - ___ __ thet steuld bs ‘ ‘— sd In ___ The RACY fur a particular source Is • • Z at d In thu , ‘ ‘ - utths, , alhailAPly de!erndned. The EPA’s rn ieors-ieo,4). ------- I.dirg Ii i , I Ia ,, )io. 414 71t a1.ji & 1. 3 ‘I I ta, & th. BnskAnth , t-a SIP. Thu thsSk dNmv toc eda, ..D_LI1Lf Cou y that the ‘du* - measures dtad. wskir condnu.tobs.1mpkme . - kL. A L U_ - I RAQ wh1 k a t New Merino . b. md’ - ” 1 Ths$tM.-,V ’-’- thatonly a1r t 0.7 t.a&oe 1A 1 a1 th.Mt&mij onm ’ mm .t 21 wIth. avo other In addWon, ft aho Mbe n iitb most developer. aim rnqi’f” ta pays newYy sstabIlabe pdvat . rowkpar the iestied oember TI. 19901 Laud Sub&rldon Ragulo on&of Dons Ma Ccunt ftk thu bnpor nf to note that In. lettbri Oc er 2! 199Z. fmaLjmfith M Puns. Dons A & u % P1I.mJ. . Dljestor end Aafsterf Manager . Jestith ).t - S iotiiy ofth N wM xfca Environment Department, the mt com t Eto ftnpmen nfen enk inp aft Dome Mw iM p. isles. legulatlomeb policies ead including the.. ff PM—b SiP *h I,dtJO,U Ib. I ,PdU.t In the Antho s t p.sdts ref - MthPM-IGSW)Jtauther. W i. 1den beth. dt Anthy __________ - • paved ioad s.a4a does not I th,in--Jh 1n v -’- theslI -en water rsssesess . LI _ S. IJ adiki irg. c ___i L _ pran& .f 10.a lon.thae tres a . reasonably controlled. Any r ’ f ernissloen en ath bui.itte — the n u.I1€ ____ hi.1g 1 1fia .i PM- Nevertheless, the Dons Ms SIR . Roed Department maintains the aveà I,-. u- p lle rv.à MWiomT, hidm g Ih.aiz. ef iih.. ..y k& cleanup of roads after heavy rains er on p.’siziomt. — C.en £ :. Again. $IstsdNs. don ’ approved Inth.N.esk .-I .— received .p rn .i&L1mm May .1I12,M3 P1 Co thi did en the S ts -l 1 .AIL&5J cited beth. £ honp £F,Indad1 -.. b rü ” s* iIai n .end dsearçefpeas -. . th,Stet&a oad’ t. he’,’— ire SIP over t y snsga .&i. .sa4 A.eaomess&Io. -_..a. • veasonahle. . L !-âJa . adess b y ::: - bon he) ± c. Rout trucks. The SIat.s.oml . t gp - . heal tr io k _ ih _ .. . : for the dsI I h4- üá Iui bmen • pzoposlngtoap . lssh.iafa—’l—-_ the A 3S*tmbr.J .l do ai sl ’ .L—J., he .e strengthen the by its t 2 1 t . ,the Cauiaty———- 4ee — osn — - ‘‘ — wourdb.eu omfsaJ1 4i t . pays III of the rsmainInenpesd roads lnAnthanpatonst lma.Asarodsge - road width of U feat,.ths Slats stlmatedthd IL womLd c esev - seoo xI twpave the r.in.cni.g unpivetmads thAnthony. The State - tho es matadthat only 36 Tthnsper -. yser of ? -Wemt 4 onr come%from,the uIu & roe&ahr the Anthony • - nonat’ 1 ” ent eros. As Indfi ete In - — ,fea . beIe .,that euã.si is heenompied’endpsve rose 1 waI egeslrommves as awbilti, Jesol SlpIfl .su$ -te *qosIty preblam In Anthony.P r rence - thetmhmi t wean ? for. d1acuadereonth,1.sI 1gnsxf s ifont sir kilp t of liuj, rodINà anthro - 1 . -ri t senheth.. AMb.. , auainsnt . ___. ._dp.mMhlI .R - 9 an ed ben ai truck iL 1 Agaln BA Sdsssa . _ I- w I p%( sources. ev bola blew ‘- -. Statepelley — ollhenL ”- t he c ,and theStateben _L_. . .. t I b___i 5 . , - ordInsn AW,.-; , .,ts tre h b’—n 1 a -. __ -t • • g New Mudss - - f. W.edfownha (ks11 ha frôTh. ifS-b - “--fl — - dii.ts wa b ’ - - t_ - _.._ _t S _s_._I_ La ____ p . . hn.h boiath.. ati th slI ___ TuIIS. rliciusen t- 5 & beth .Amtheny PU iQ SIP. • IncIu”gthensnring of a.& taw .. wam.es vmitam ___ ___ • wilL onadmie Inb. 4 .’ — d discussed .nforoed A proposes ts .pps..the require contro son. j ’ PM-b ____ Counig mmItmonta regaeMmhsvl .our. Fiber sealgees dtbwPM- truck peUcyss cwitml ureab., a.d. 24-bout excee end 1I ______________ PAQ .4 which stmnglban . the Nm . (inr]Iailn1. low wIsddiiy , — “— ____ M 14 SIP. - •: - • - - 24. Il tb wead &* £ U .n tpif j .n.a I L as . • not a4gaI S o wt i . .hwth. . County recalves on average less tl.1. the 1 9 - Aonlyowit I 4. ..iS.- ptsthr . 1O pro iew 9 5 Inches of precipitation, per auar. andes. •dd1t1orra 1 $ and 1 the area. U A .. thgil ld he a result. tSar. sit many dry 1 4isty pads. (througb Ma 1990)-also l cats . os notowiatltu and vacant Tots In Anthonydn aloes. that wood mink , was- not agetloast RA km-EPA the statst. vicinity to-the Anthony PM -1G “ ‘° “ conthbuioz t&thsPM-1 c . ’ - ( .. ‘ - .a _ LDj aibb&e. .. ...Ii.à I a a vecai lot (across the street. mesausod on these Sitar. — •- (57 PIL • south-west ofthemonfttp ’t 1 Ty onthls9&tm anel 13507. J uestMle, the oLNew. vegetated lot (east oLthtmm1&M l and consisting efzp ff” ” M sigb Duen Csu In . abailfield (about 1000 f aL1kwSot0L of both PM-b ifitere and soil eamples. 1nipIseaer ag —‘-- .1 —- . fou - the monftort The parking e . Isp ” ’ in ApJ n laIt LI.of thee - unpaved reads be Aatbeap - . adjacent roadto the tsnvegatdod..waa - AnthonpW: - nonattainment area as tlI . i ..sed above. uaed, b.IlSeld.rsungavauf.The - — ‘-—-of v .Wthr s Tha . the’u th.” wa .... monitor ItseItehu slk aas.prn Es. .. State ceaefd ea A authority - • p t.tha. ” :tore .thse,somt.Msnèm • • - e groun $.d r .sLeaIs — }. ceaeaffonofv ’ bfclesalao a - ------- Federal Register I Vol. 58. No. 66 I Thursday. April 8, 1993 1 Proposed Rules 18195 nünimis. Due to low Income levels, road recreational vehicles are - unc T mon In or around Anthony. Aerial photographs did not portray any areas near Anthony with the distinctive patterns of off-road vehicle use. Again, RAC .i does not require controls on Insignificant PM-b sources. h. /*griculturol lands. The State im.Id ,s , and EPA egress, that PM—tO emissions from croplends are Insignificant. No agrk.iiltural fflHi g takes place In the Anthony nonatthlnment area. Further, most farmlands In Done Ana County are located along the Rio Crande river flood plain. an area cont*lnlng more rich and well developed soils. As discussed earlier In this notice, RAQ4 does not require controls on insignificant sources of PM—b emissions. Please reMence • the technical support document for additional Information regarding the Insignificant amount of PM-tO smlsml n from agricultural lands affecting the Anthony nonattatonient -area.Jn addition, workbytbesoll • conservation service has shown that essentially all Of the Done Ana County croplands are In compliance with the Food Security Act (please reforence Appendix F of the Anthony SW). I. Rwtgelanda/L?esezt. The Anthony nonattalnment area consists of the township limits (about three kilometers by one kilometer). Rangelands/desurt area very ‘Igr’ 4 ficant contributor to PM- 10 emissIons In the Anthony area, an area surrounded by sandy, dry and partially vegetatetherrain. Anthony Is located In a Chihu.1 uan desert grassland ecosystem About 88% of - Done Ana County is r1 .ffied as rangeland, and the State estimated Dma Aria County PM—b emissions from rengelands/desert at 502,584 toni par year (please note that this Is an - underestimate due to calculation en’ozs as detailed above end In the tedmical support document. Th. corrected estimate should be at least 628,032 tons per year). These estimates of PM—to emissions were derived from the Modified Windblown Dust Equation detailed In the EPA document Control of Open Fugitive Dust Sources (EPA- 450/3—88-008), and reflects reasonable estimate of nonantbzopogenlc PM—tO mnlitsions from the open rangeland and desert areas In Dons Ana County. The desert portion of what EPA has categorized as rangelands/desert Is Inc natural, largely undisturbed state. Thus, any PM—jo emissions from these lands are reasonably considered to be of nonanthropogenic origin. For the reasons set out below (and In supporting technical Infonnation) , EPA also believes that PM—to emission, from the surrounding rengolanda are also reasonably viewed as being of - nonanthropogsnlc origin. • Uveatmi grazing In the Anthony area (Mimbres Resource Area) I . managed -under Federal law. The r levant law includes the Taylor Crazing Act of 1934, the Federal Land Policy and - Manag .nent Act of 1976 and the Public Rangelands Improvement Act of 1978. The Bureau of Lend Management (ELM) Is the Federal Agency charged with managing the rengelauds. The ELM emph si’ime prevention of deterioration, end conservation o1 soil reeowces. ELM management practices rely on rotational, ssnn*I grazing of the area. Ongoing multi-year studies point to proper rotational grazing as helping to. produce Improved raugeland. in addition, a mInl,nni amount of nIut*i are allowed to graze per section (640 acres) under ELM lease agreements. The • allotments around Anthony average about three to four n1msI par section. As managed under Federal law, these • animals do not generatielgnlficsnt amounts of airborne particulat. matter ánd,lfanythlng.bavetl eeffectof stabiIl’4ng the saiL Th. technical - support document contains detailed Information on the Improvement In the r g.lRnd conditlonin Southwestern New Mexico over lb. last 40 years. This shows that over the last 40 year. grazing activity managed coi si.tent with Federal law has Impivv . .d Dana Aria County rengeland condition, which help. reduce wind erosion end PM-to • emissions. Removing au m’lm ls and all an c Influence frcpa the rangelan around the Anthony ares - would most likely tesult In a deteriorated rengaland condition, - - resulting In Increased soil erosion and Increased airborne particulate matter • (Please the technical support document). The reasonable management • of therangaland allotments around the Anthony area has largely, and perhaps entirely, eliminated airborne particulate matter from theee rangelands that Is attributable to cattle grazing and related activities. Therefore, the remulnlng PM- 10 am1 f one from rengeland. are ettributable to nonanthropcgenic - sources and, as Indfr ad, these residual emissions are the dominant contributor to PM-tO violations In Anthony Even though the Dana Aria County rangelands are being managed as recommended and required by the ELM, the soil compositions are such that the Doria Ana County rangelands/desert are Inherently (naturally) susceptible to wind erosion. Therefore, even being properly managed and actually - Improved, the rtng kiidi/desert In the - -Anthony area constitutes do ,n1n nt source of PM—b emissions. Please reference the techulcal sup document for additional Informatlo regarding the drniilnant amount of nonanthropogenic PM—1O em1es1on . from rengelandsldesert effecting the Anthony nonattnInmm t area. Again, the technical support dbcument also centains detailed Information on how - reasonable rangeland management In Southwestern New Mexico over the last 40 year. has resulted In Improved iengelaod condition In Doria Aria County. The tar] nl, ,l support document also references published research substantiating the benefits of properly managed rangeland grazing. j. Pourt sources. As discussed previously, an assessment of point sources revealed that such sources have a de minimis Impact on PM-to air quality In Anthony. Statutory requirements for RACM (Including RACfl do not require the Imposition of potentially available controls on such ources In such circumstances. IIACM(lnduding RAC77 for Co it V i of PM-jo Summary - - - EPA Is proposing to find that the State of New Mexico’s PM-tO SIP for the - Anthony nonat ment area Includes adequate RAQ 4/RACI’-as discussed In - detail above. EPA views the State’s i burning regulation (A R 301), previously approved by EPA, U. reasonable, enforceable, and responsible for malnunin4ng the PM-to emissions from trash burning at lower than de , nlithnls levels. EPA proposes to approve the revised AQCR 301 to -. Include the definition of “open burning” In order to strengthen the New Mexico SIP. Remiilnlng anthropogenic sources us whole are de n ,inlmk and statutory requirements for RAQ,i (Including RACT) do not require the implementation of further controls. EPA Is also proposing to approve the County’s commitment to Impkmanthrg and enforcing .11 Doria Ana County rules, regulations, policies and • - practices, Including those Identified In - the PM-to SIP which reduce airborne dust In the Anthony area (October 29. 1991. letter from the County to the State discussed In detail above). These a mmItments regarding County coritrol measures are being approved as measures beyond RACM which serve to strengthen the New Mexico (Anthony PM-to) SW. The State of New Mexico also stated In the adopted Anthony PM— 10 SIP (page 10) that It “remalnisi committed to the dust control measum . Implemented by Dana Aria County’: will as the ‘moderate area control strategies as agreed to In (the) S W ------- 18196 Federal Register I VoL 58. No. 66 I.Thursday. April 6, 1993 I- Proposed Rules submittal and the established air quality monitoring schedule.” The State ratIfied Its commitment toT a November 21, 1991, letter from Cecilia Willinmi, Chief, Air Quality Bureau, to Gerald Fontenot. Chief, Air Programs Branch, EPA Region 6. EPA today Is also proposing to approve the State’s commitment found In the Anthony SIP and In the November 21. 1991, letter. The dominant sources of PM—la concentrations In the Anthony area, nonanthiopogenic sources, are the surrounding rangalandaldesert which are not feasibly controllable 8. Milestones and Reasonable Further i io g ress . - Section 189(c) of theAnt requires that plan revisions for moderate PM-ID nouatt nment areas contain quantitative milestones which are to be achieved every three years until the area is redesignated to attainment. The milestones must also demonstrate to EPA that reasonable further progress (RFP) toward attainment of the PM-b NAAQS I. being met (see 57 FR 13539). EPA has attempted to reconcile the quantitative milestones end periodic reporting celled for In section 189(c) with EPA’. proposed decision under. sectIon 188(f) to waive the moderate area aM ,unant date for Anthony. EPA hae Indicated that at this time the - anthropogenic and feasibly controllable FM-iD source contribution Is Insignificant. Therefore, significant emission reduction progress In Anthony isnotfeas lble.Inlightofthese circumstances. EPA believes It Is - reasonable for Anthony to satisfy ‘. section 189(c) by reporting every three years. beginning on November15, 2994, - Information addressing a potential _____ in circumstances In the area (including, for example,.a rhange In the snthropogenlc/nonanthropogenlc source mix) that may, in twit, warrant further air quality protection efforts. - - Specifically, the State should report to EPA every three years the following information regarding the Anthony nonattainment area: (1) The status and effectiveness of the existing controls, (2) algnl 8 cent . 4tang e in the Inventory due to new source growth or other activities, and (3) en evaluation of any ddiUonal controls which maybe feasible to - reduce exposures end/or bring the area. Into Reasonable furtherpr sa Is defined in 1lm 171(1) of the Act as such - annual Inaenumtal reductions in eunhaions of the relevant air pollutant as srerequlredbypsrtDormay .. :- be required by the Aitininiat,ator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date Since pert D does not dictate annual - in ementa1 reductions far moderate - PM-ID areas, EPA has broad dliaetlon In determining RPP under section- - . 171(1). For the reasons stated above, EPA Is proposing to concludaet this - time that annual Incremental reductions - In eedseinna are not reasonably required for the purpose of ensuring timely - attainment of the PM-lO NAAQS in the Anthony oserattainment area. 7. Contingency Meesurà - . As per section 172(c)(9) of the Act. all nonattainment SIPs must contain contingency measures (due November 15,1993) that are to be implemented If the area fa l lito makeRPPorto attain the NAAQS by the applicable date. -. These contingency measures are to be Implemented Immediately after EPA determines failure of RFP or et aiitv iit of standards. Again. for reasons .explalned In the “Milestone, and - Reasonable Further Progress ” - - discussion above, conth%—cy measures are not applicable to the Anthony nonattainment area. -- - - :- - 8. PM—b Precursors ‘ - - - 4nn 189(e) of the Ad states th t control requirements applicable to major stationary sources of PM—la are also applicable to major itatlenary sources of PM—jo prec more va . yL where the Administrator determines that such sources do not aig 1flcantly contrlbute to PM-b levels that exceed -the PM—b ambient standards In the area. The General pt,amhln conthlna guldanna addressing how EPA Intends to Implement section 189(e) (see 57 FR 13539—13540 and 57 FR 13541—135(2). The Anthony nnitaInmant area does -not contain any major aIinIi y sources of PM-b precursors or any .Igeiflrant minor stationary sources of PM-1O • precursors. and stationery sources as a whole (La. within a50 kilometer radius of Anthony) provide an In igniHcant -contribution toAnthony’s ambIent PM- 10 concentratIons as demonstrated through dispersion modellng Thus,. ambient PM—b precursor . - concentrations In the Anthony - nonattalnment area do not .lgrilflcantly contribute to PM-la levels that exceed the PM-b NAAQS In the ares. and EPA Is proposing to grant the Anthony area the exclusion burn control requirements as authorized under section 189(e) of theAct. - 9. EnforceabilIty Issues . • All required measures and other elements In the SIP must be enforceable by the State end EPA. See sections 17Z(c)(6), 110(a)(2XAI and 57FR 13556. The EPA criteria addressing the - enforceability of SIPs end SIP levlalow -werestatedinaSeptember23, 1 987, memorandum (with ettadiments) from). C aig Potter, Assistant Administrator for Air and Radiation, et el. (see 57 FR -. • 13541).lnaddltlontoenformable raquIrements nonattainment area plan provisions must contain a program that provides for enforcement of the control measures and other elements In the SIP (see section 11O(a)(2)(C)). - The State of New Mnvioo has a - program that will ensure that certain - control measures contained In the -. - Anthony PM—ba SIP (b Air Quality Control Regulation 301) are adequately enforced. The State has also received. documentation In the form of a letter - frum.Dona Aria County dated October, 29,1991, that the County Is committed to Implementing and enforcing all - County ivies, regulations, polides and practices, including those Identified In the Anthony PM—b S W. - - m.i p sti . of Today’s Action - - Mdi . -. TheEPA*oday lapropoeing to - : . approve the Anthony, New Ma 4 moderate PM-b SIP. All required S W Items have been adequately addz d as discussed In this Federal Register Notice, end the State of New Mexico has - conducted a comprehensive RAQ 4F -‘ RACranaIyaIsLTheEPAIaa]so proposing to appwvv the State’s request. per Ion188(f)oftheA c t .fora waiver of the attainfnaltt date for - - Anthony. EPA has determined that -) - anthropogenic sources do not contribute irlgnfficantly to the PM-1O NAAQS violations-In the Anthony - - - - nanattainynent area. This proposed -. action Is non-precedent setting. and the -proposed decision to grant awalver Is’ based o a Current raadlng of the law - and on facts specific to the Anthony, New Merdon nonatt.In .nent area. As EPA refines Its policy concerning waivers, areas may face different - procedural and substantive showings. Based on the above evaluation, the EPA proposes to approve the Anthony. New Mexico, moderate PM-b nQnat’ 1 ’ ent SIP, Including the waiver of the attalnmant date for Anthony per section 188( 1) of the Ad. Request for Public Comments - PA requests comments on all aspects -of today’s proposal Including EPA’s proposal to waive the attainment date for this area as authorized under section 188(1) of the Act. As Indicated at thern outset of this notice, EPA will consider any oommA t$a received by May 10, 1993. ., -- ------- - F.dar.1 Register / Vol. 58, No. 68 1 Thursday, AprIl 8, 1993 I Proposed Rules - - . 1811 Regulatoiy oc8 .: Under the Regulatory Fls dbI1ltyAct, 5 USC 600.1 seq., the EPA must prepare a regulatory flexibility alalysis’ assessing the Impact of any proposed or final rule on small entItles. 5 U.S.C 603 and 604. AlternatIvely, the EPA may ontlfy that the ml. will not have a significent Impact on a substantial number of small entitles. Small entities Include small businesses, small not-for- profit enterprises, and govunilnent entitles with Jurisdiction over populations of less than 50.000. S W appwi.ls under suctIon 110 and iubchapterLpaztD.oftheActdonot asete any new requirements, but - simply approve requirements that the State Is abesdy Imposing. Therefore, because the Federal SIP-approval does not Impose any new requirements, I artify that It doetnot have a significant Impact on any.mell entities affected.: Moreover, due to the nature of the Federal-Stat, relationship under the Act, preparation of a regulatory flexibility analysis would constitute Federal Inquiry Into the economic yi,u ’hian of State action. The Act forbids the EPA to base Its actions concerning SIPI on such grounds. Union Rl.cbr’c Co v. U.S. H.P.at. 427 U.S. 246, 236—CC (S. a 1976); 42 U.S.C 7410(a)(2). WVLEMDffARY WO A1IO Several parties, Including one state agency and the Association of State and Territorial Solid Waste Management Officials, have requested that EPA extend the comment period on the February 11,1993 universal wastes proposal (58 FR 8102). Additional time Is requested to allow coordinated discussion of the Issues - wlthIn end among state agencies (and other organizations) In order to develop oomprah n ve comments on the proposaL Bemuse EPA believes that the quality of a final universal wastes rule maybeg r sat ly lmproved if - Implementing agencies and the. regulated monIty are able to fully explore the many issues raised In the proposal prior to submitting m Its, thAgencyhudstapmmnedth a tan . - extension of 30 days Is au upriate.- AODIC’f Environmental Protection Agency. . ACfl0tP Notice of Intent to delete Hydro Flex Carporation Site from the National Priorities List; request for comments. IU fiY : The Environmental Protection Agency (EPA) Region VII annormom Its Intent to delete the Hydro.FMx Corporation Site from the National Priorities List L) and requests public comment on this actian. The NPL- -constitutes appendix B to the National Oil and Hazardous Substances Pollution, Contingency Plan (NQ’). which EPA. promulgated pursuant to sectIon 105 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ((ZRQ.A), as amended. This action Is being taken because EPA and the State of 1at . have determined. -that no fund.fininred remedial action is appropriate at this Site, and that actions iakeniodateareprotect lveofpublic • health, welfore and the environment DAtU. ( nmivien 5 000cnrnlng this site maybesubmlttedonorbeforeMay 10, 1993. - - - *DC#81W Comments may be mailed to Catherine Barrett, Waste Management Division! Superfund Branch, U.S. Environmental Protection Agency, Region VII, 726 MInnesota Avenue, Ian.as City, 1 ’ 68101. • ,c R ThER If0 iA1i0N NTACT , Comprehensive liava llableforpiibliczev lewattheEPA Region VII Waste Management Division Records Center located at the above; address and at the Topeka Public Library, 1515 SW ioth Street, Topeka, Kansas. - . To obtain copies of dorin ai,ts In the public docket contact: Barry Thlezer, U.S. Environmental Protection Agency, Region VII, 728 MInnesota Avenue, ) an q City, 66101, (913) 351— 7515. . . • - —. thj BrARV .,aenAfloi . Table of Contas . L In èzcdon - 1L NPL DeI.dse ofeste - m. Deledsa ? r d • aci1 i: Proposed nrl. er’ternalan of comment period. - . - - - D.tsd:AprItZ 1993. - - -; .. - Assistant Sure_me ç .g USP1 Acting Aióte n tAdmthktratss. (FR Dcc. 038204 Piled 4—7-93; $ 45 am) sei s coeaussur . 0(JNMi RT In response to J - - requests, the Environmental Protection Agency (EPA) Is granting aSOday extension to the 7ITnIuaT1t period for the ________________________________ ‘universal” wades proposed rule - - - . a puMI,h d ue February 11,1903(58 FR 40 CFR PWt 300 • - .:. -. 8102). - . . . .- . . - - DArU: C’ n’nants on the February 11, - 1utIonsI OR end Hemrdous - - 1993 notlceof FR 8102) mud tted on fore SUb$tSflCS$ PollUtion Contingency May .12. 1993. Plan; National Priorifiss List Update ADCRE5SE Persons who wish to comment an the February 11,1993 notice must provide an original and two copies of their mants, Include the -docket number (F-.93-SCSP-. mpj, and send them to: EPA RCRA Docket (OS-305), --U.S. EPA. 401 M Street SW., Wn hIngton, DC 20460. The RCRA Docket is located at room M2427, U.S. Environmental Protection Agency, 401. - M Street SW., W ’hIngton, DC 20460. ___ Thedcckutlsouenfrom9s.m.to4 p.m., Monday through Friday, excluding ________ tederal holidays. To review docket material., the public mud make an appoIntment by rAIlIng (202) 260—9327. a mmdmum of 100 pqes _7 Ltory docket at no - . - cost Me14t1m*1 copies coat $0.15 per page. - - - Executive Ordez l229 l - - - R n TIem $ C A1lON C0I(TACT For The Office of Management and Budget general Information, canted the RCRA/ has exempted this rule from the ..- S d a jin. thU free at (800)424- 9348. In the Washington, DC ‘ ementaofSecftori 3 of Executi call (703) 412—9810. Sub jests p - - For inlozmation regarding specific Mr pollution control, Hydrocarbons, aspects of this nothm, contact Charlotte Mooney, Office of Solid Waste (OS— Intergovernmental relations, Nitrogen • 332), U.S. A, M Street SW., dioxide, Particulate matter, Reporting and recordkeepfng requirements, Sulfur - u1 toui DC 20460, telephone (2Q2) dioxide, Volatile organic compounds. 260-6026. .- - -. Aetbi1ty 42 U.S.C 7401—7671q. Dated: March 13,1003. - -. - - WJ.Uath.way, Acting R*aalAdnthábutor(U).. IFR Doc. 03-6276 FIled 4—7—03; L45 an - 4OCFRPwI 260,211 262, 264,266, 2 V0, end V3 - - -. - . 5: me seso-*ois - - - . . - Hsm,dous Waste Management - System; Modification ot th H....tdous Waste Recydk’ig Rsgulstosy Pru am ii ICI P m&ai44i i - ------- hISS IagW / VoL , $,. l Thrsdiy.ApilI 8 1953 I P!t oesd lu. IV. Baste tetand.d Site IiIk L lntrodoc The Environmental (EPA) Region VE Its intent to delete the Hydro.ilezCorpomtlon Site, Topeka. Kansas. from the Natlonil Priorities List (NPLL appendix B of the National Oil and Hazar 5-’-’-— - Pollution Contingency Plan (NCP). 40 0R part 300 as amended. and requests comments on this deletion. Tb. EPA Idmtt4fi , sites that spçesr Ic, p if t8g! 4Rr T1t iliktø d iTtr health. we lthr. or the environment and t f lna NPL as Lbs Itatof ee . SR en the NPL may be the subject of li.1 1om by the Haindous -. Response Trust Fend (PuOd h Piasmeat to S 395 435(e 3 ) of the N(P, any site dilated from th.M L remainS eligibi. for remedial ction if caadI eiwet the sits warrant snob iin __ - , - pm ed ds .l&stlug of thfo Sit. days aftas hBt.bI an of this n’4kn be the Ped. 1 l i _ y 9 dUds espleitie the aUnt. far deleting sites freur Section discienes pcocaduas thil - EPA 1. ng for this ‘t1 SectI o IV dksi9I au the lfydiv.FIee Carperetico Site and enpisies bow the Site meets lbs deletion m mm l i. - a ? . Deletion OitasIa The N establishes the aUnia that theAeucyuaeetodeletesftufromtbe NPL In accx danc. wIth 40 R 300.425t.J, sites may be deletodinun the ? . where no finiher - -..-. , is appropriate. In ni Wrrg this determln*tIon, EPA will consider, in consulteti en with the SiMrn whether any of tb.aUsrle in 5300.fJ5(NI}UJ through (lii) have bean net Befãre dedding to delete a sPa, EPA must fret deternlns ib M sc ens tekan at the site are pretectivi if public haalth , wef andLbe and a O faither d — I E1t am qprep te. in the W7 ili 30O .425(e)(23 qn 3t dilating. sate fr * ti* thsPsbovs ,1cIUU - eth* which result III d 151 1 , .nI p s! on ,- 4 ”g t n sft 1 heAk à waniimitedss .ed icthd , I ic EPA ’s p.UCJte iiw di . iltedisad evy hve jW s r that the remedy ieinS 1 fl 5 P i*tv. if and the S°’ l t. A S-year mel Is apprOP sliydro .p1ex and will he udu 7. At that thus WA. in Lb. Sto , determine whether human health d the environment remain protected. Deletion of. sits the t I ’Ldcus azn&thme R 305 u 3) - EPARegIoiYIwlaer pe.nd - evaluate public comm ts before making the final dedslon to 4& . The Agency believes that deletion procedures should focus an notice and comment at the loont level C ’7nmnc 11ts from the locel c’wununity are often the most p- 41 — 1 to deletion deddn- The wen esed fur di . Intended deletion of Mm 1. EPA nn VEbM _i.anA delet . bea pespassaith. isiesent docm 1 2. TIes S . of Ia . han cop ceresd with tbsdel 4 m . Li... . 3. m fltW$Ij Ll na1 ___ Nottee of letant to Delete, niece) a has bom p*Iah. l is thelcual newspaper and he. been distributed to appropthta fadereL M ant hen) -. officials mu ether isbeest.d p.tlen This ie nmS1en a thIrty (303 d p—. tp-isJ .stha disLilon pechage, whish Masts A$1 8, 1993 May IL 1993. 4. EPAhasmadeall relevant documents available In the Regional repository tl ar -y) . t }stlon alsfte.frem*eNPLdoas not itself create, aI creseob any Individual’) rights or ahhgitlone. The - ------‘ rentveddertog the noticit mid 4 .-- --- ’nt Md wifibs - evaluated bofa.. , the final de Ion to delete. EPA wEB prepare. Sgmm4iy W Ith wEB address any comments received during the public period. - -. occurs after - i.g I Admlnlslratxw pla .i a final • R .gls’ . The NPL will re1la any de1 tlona in ks i ed Brul update . Public notices and copies sEth.. Reepaneivenoas Siimmaiy will b. made ev allRhlaby Region VU.. IV. Bests Ow eeded Sit. I sdoe, The 11.3. EPA and the Kansas Departme ofRealik and Environment (XDRE) In! nd to e the Rydro-PIeX CO?pctttjo Sits from Lb. Natfnnel -- Priorities IJ’( Wijbecanm o i . .mi .c.iiia ectisitiss atth. MIs s completed. __ The Sit. Is t etad In nertb,, Topeka. I ‘and oapaen , 2.5 ease. The City of TOPIhe Wst Dsp surface water .Uuctoze.al.uig the Y —Riv which am appem ly 6.200 fast uthaa4 of the llydro .Thx Site. he on thfiwatir ‘ upply lithe the Site wssadded to the ?WLon March 30, 1989. The VanwD .partmgut of MIsith aid Environment ( XDIIE ) completed a Pr Mm1i ery Auwmsat/Slte___ Investigetisa in March 1687. . T1R Installed end aampl°d these monitsaleg wells, they alan sampled ft . psissts wale. 1 in setigitien lw” d te gioimt water was contaminated with chromium a copp’c l”us) m 1t ofo1biteprivatswsllw .pl g - -. Indicated chiomban lewlabdow d arSbm14 mi ii - ipurlsvsla - between non-datactsbs vs!s end 72G mlasgrsmalllter @5(1). Th,a.v.hi.s meet at.snd Federal rIn b g wat Mantk d . end di net reflect - umtaminit1evskofpithflc hk i ’ - ro . ..-‘. . ____ . 1 between with lfyds PIan.- Casposatfo., I was algead he the Hydro-Plex sits In asdarta a - Remedial l d ! 5 ,4L JP ath l t .y Study (RYFS). Desed on des l..L ..m..*1 . . . aoddataobtainmibyth. —’44’ Investigation and the ICDHE ‘j” ” chromium and copper ooncentrethxis met thinking water standards. In a It.aud of Dudeton signed March 9.1992, the Regional Adminfitsatsa far EPA It4 . VU selected the No Action. alternative as the final remedy Owthe Hydro.#hn Sits. The EPA, in - . - consultation with ICDHE, had determined that the Site did not pam a - algirificent threat to public h,ilth , weReraaadthevu,fw..rn ..t. Use 4 conducted Included development end Implementation of a comw fty relations plan for the R i a .tI ItI. , and - publication In the local namupaper of. • noticeInL L thsp ubllcoIthe - Public ( ) mn 4 Peeled and the availability of the Propnri 11i Plan. EPA. with concurrence of KDi , baa determined that the Hydro-Flex. Site - pose . no s¼nlflomt threat to public health or the environment end, therefore, th dng of further remedial measures is not appropriate... - IMted March 22, 1953., - . - WiWemlics, •.‘ Acting &g - - ’ - 5di.r . k _va. - - -.. -. IFR 93-I399 4-7- - aIiimc .-i - ------- r 4vTh ôA)’( F,N4 Federal Register I Vol. 58. No. 173 I Thursday, September 9, 1993 / Rules and Regulations 47383 report data. The 1992 data will be updated by December 31. 1993. and subsequent updates will be made by July lit of each year. (II) Retain annual emissions reports forat least three (3) years. - - (lii) Develop and submit Emissions Statement Status Reports (ESSR) on a quarterly basis each year until all applicable sources have submitted the required annual emissions reports. The report will show the total number of facilities from which emission statement data was requested. the number of facilities that met the provisions, and the number of facilities that failed to meat the provisions. Sources that are delinquent In submitting their emissions statements will be Individually listed If they emit 500 tons per year or more of VOM or 2500 tons per year or more of NO. The report will also contain the emission data requested In Appendix F of the July 6, 1992 Draft Guidance on the Implementation of an Emission Statement Program. - (Iv) All sources subject to the - emission statement requirements must report. at a minimum, the Information specified under subpart C of part 254 of chapter II of subtitle B of title 35 of the Illinois Administrative Code. (A) Incorporation by reference. Illinois Administrative Code, Title 35: Environmental Protection, Subtitle B: Air Pollution, O apter II: Environmental Protection Agency. Part 254: Annual Emissions Report, adopted at 17 IllInois RegIster 7782, effectIve May 14, 1993, (B) Other materIal. June 2, 1993. commitment letter. (FR Dec. 93—21924 FIled 9-8—93:8:45 inr3 coca s sse 40 CFR Pest 52 (NMI2-1-4872 FRL-47004J Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Revision to the Stats bnplemsntatlon Plan; Addressing Pit- l ofosAnihony - - AOBICV Environmental Protection Agency (EPA). ACTION: Final rulem.klng. s av : This action approves a revision to the New Mexico State Implementation Plan (SIP) addressing PM—iC for Anthony (a moderate nonattainment area for PM—b), lnclnilh g a request from the State, per sectIon 188( 1) of the amended Clean Air Act (CAA). fore waiver of the attainment date for Anthony. The EPA may grant such a waiver for a moderate PM—b nonattninmertt area where the EPA determines that anthropogenic sources do not contribute significantly to violations of the PM—b National Ambient Air Quality Standazth_ (NAAQS) in the area. PM-IC Is defined as particulate matter with an aerodynamic diameter less than or equal *o a flominAl 10 mla’oineters. EFFECTIVE DATE: This action will become effective on October 12,1993. -‘ ADORESSES: Copies of the documents relevant to this action are available for public inspection during normal business hours at the following • locations. The Interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day. U.S. Environmental Protection Agency, Region 6, AIr Programs Branch (6T— AP). 1445 Ross Avenue, suIte 700, Dallas, Texas 75202—2733. Mr. Jerry Kurteweg (ANR—443), - - Environmental Protection AgencyL 401 M Street, SW.. Washington. DC 20460. - New Mexico Environment Department. Air Quality Bureau, 1190 St. Francis Drive, room So. 2100, Santa Fe, New Mexico 87503. - FOR FURTHER IIFO IATION CONTACP. Me. Mark Sather. Plimning Section (6T-AP), Air Programs Branch. U.S Environmental Protection Agency (EPA) Region 6,1445 Ross Avenue, Dallas, Texas 75202—2733, Telephone (214) 055—7258. WPLEMDflARY PIFORMAT1ON: L Background - Anthony. New Mexico (located in Dons Ana County, New Mexico). was . . . designated nonattainment for PM—b and classified as moderate under sections b07(d)(4)(B) and 188(e) of the CM. upon enactment of the Clean Air Ad Amendments (CAAA) of 1990.’ Please reference 58 Federal Register (FR) 58894 (November 0, 1991) and 57 FR 13498,13537 (April 10, 1992). The air quality planning requirements for moderate PM-lO nonattainment areas - azesetout lnsubparts land4ofpart D,tItleIoftheCAA. The EPA has Issued 1 ”Ceneral - PreambW’ desalbing the EPA’s -. preliminary views on bow the EPA I The 1990 Amendments to the aen Au Act made chan ea to the air quality pi...i.in requ1r ents fw aries that do not meal (or that .I tIflcantIy contribute to ambient air quality In a nearby area that does not meet) the PM—tO National Ambient Air Quality Standard. (see Pub L No. 101-549.104 Stat 23991 1dms .s be,eln are to tbsa Air Acts. . .,, 4.i4• 42 7401 d intends to review SIPs and SIP revisions submitted under Title I of the CAA, Including those State submittals containing moderate PM—iC . — nonatt iInment area SIP requirements (see generally 57 FR 13498 (April 10, 1992) and 57 FR 18070 (April 28, 1992)). • - . Those moderate PM—b nonatsainment areas designated nonattainment under section 107(d)(4) of the CAA were to submit SIPs to the EPA by November 15. 1991. The CAA outlined certain required items to be Included In the SIPs. These required Items, due November 15, 1991, unless otherwise noted, include: (1) A comprehensive, aocurate, and current Inventory of actual emissions from all sources of PM—b in the nonattainmeni area (section 172(c)(3) of the CAA); (2) a permit program to be submitted by June 30, 1992, which meets the - requirements of section 173 for the construction and operation of new and modified major stationary sources of PM—IC (section 189(a)(1)(A)): (3) a demonstration (including air quality modeling) that the plan provides for attainment of the PM—iC NAAQS as expeditiously as practicable but no later than December 31, 1994, ora demonstration that attainment by that date Is Impracticable (section 189(a)(i)(B)): (4) provisIons to assure that Reasonably Available Control Measures (RAC .4), including Reasonably Available Control Technology (RACfl, for control of PM- 10 will be Implemented no later than December 10. 1993 (sections 172(c)(1) and 189(a)(1)(C)). For sources emitting Insignificant (do minimis) quantities of PM—b, the EPA’s policy is that It wouldr be unreasonable and would not constitute RACM to require controls on the source (please reference 57 FR - 13540). Also, when evaluating RAQ I - and RACr, technological and economic feasibility determinations are to be conducted (57 FR 13540—44); (5) quantitatIve emission reduction milestones which are to be achieved - -every three years until the area is redesignated attainment and which demonstrate reasonable further progresa (RFP) toward attaining the P1410 NAAQS (section 189(c)); (0) contingency measures due November 15. 1993 (please reference 57 FR 13543), that are to be Implemented if the EPA determines that the area has failed to make RFP or to attain the primary standards by the applicable date (section 172(c)(9)); and (7) control requirements for major stationary sources of PM—b precursors, unless the EPA determines Inappropriate. The ------- 47384 Federal Register I Vol.58, No. 173 / Thursday. September 9. 1993 I Rules and Regulations CAA, In section 189(e). states that control requirements applicable to major stationary sources of PM—to will also be applicable to major stationary sources of PM—tO precursors, except where the Administrator determines that such sourcee do not significantly contribute to PM—b levels that exceed the PM-tO ambLent standards In the area. IL Response to Comments The EPA received no comments on its April 8. 1993 (58 PR 18190—18197). Federal Register proposal to approve the Anthony moderate nonattainment area PM—tO SiP. including tbe waiver request. - Final Actioii Section 110(k) of the CAA sets out provisions governing the EPA’s review of SIP submittals (see 57 FR 13565—66). In this final action, the EPA Is granting approval of the Anthony. New Mexico. moderate nonattainment area PM-to SIP. Induding the waiver of the moderate area aunh m nt date for Anthony. because It meets all of the applicable requirements of the CAA. This SIP revision was submitted to the EPA by cover letter from the Governor dated November 8. 1991. On April 8,1993, the EPA announced its proposed approval of the moderate nonattainment area PM—to SIP for Anthony. New Mexico. Including the waiver of the attainment date for Anthony (58 FR 18190-18197). In that rulemaking action, the EPA desaibed in detail its Interpretations of Title I and Its rationale for proposing to approve the Anthony PM—to SIP, including the waiver request, taking into consideration the specific factual Issues presented. The EPA requested public comments on all aspects of the proposal (please reference 58 FR 18196). and no comments were received during the ‘ omment period, which ended on May 10, 1993. This final action on the Anthony PM-to SIP. Including the waiver request, Is unchanged from the April 8. 1993, proposed approval action. The discussion herein provides only a broad overview of the proposed action the EPA Is now finalizing. The public is referred to the April 8, 1993. proposed approval FR action for a full discussion of the action the EPA is now finalizing. The EPA finds that the State of New Mexico’s PM—to SW for the Anthony nonattainment area meets the RAQi/ RACF requirement. The EPA views the State’s open burning regulation (Air Quality Control Regulation (AQCRJ 301), previously approved by the EPA, as reasonable, enforceable, and responsible for maintaining the PM—b emissions from trash burning at lower than de minimis levels. The EPA is approving the revised AQCR 301 to Include the definition of ‘open burning” in order to strengthen the New Mexico SIP. Remaining anthropogenic sources as a whole erode ininimis and RACM (induding RACF) does not require the implementation of further controls. The EPA is also approving Done Ana County’s cominitnient to Implementing and enforcing all Done Ma County rules, r guladons, policies and praâtlces, Including those Identified in the PM—to SIP which reduce airborne dust in the Anthony area (October 29. 1991, latter from the County to the State). These commitments regarding County control measures are being approved as measures beyond RACM which serve to strengthen the New Mexico (Anthony PM—to) SiP, The State of New Mexico also stated In the adopted Anthony PM—to SIP (page 10) that it “remains committed to the dust control measures Implemented by Dana Ane County.” as well as to the ‘moderate area control strategies as agreed to In Ithel SIP submittal and to the established air quality monitoring schedule.” The State ratified Its commitment in a November 21,1991, letter from Cecilia Williams, Chief, Air Quality Bureau, to Gerald Fontenot, Chief, Air Programs Branch, EPA Region 6. The EPA Is approving the State’s commitment found In the Anthony SIP and In the November 21. 1991, letter. The overwhelmingly dominant sources of PM—b concentrations in the Anthony area are nonanthropogenic emissions from the surrounding desert and residual nonanthropogenlc emissions from surrounding rangelands which aie not feasibly controllable, Anthmpogenic sources as a whole, after the Implementation of reasonable controls, do not contribute significantly to violation of the PM-b NAAQS in the Anthony nonattainment area. Therefore, the EPA is granting the State’s request to waive the moderate area attainment date for Anthony pursuant to section 188(f) of the CAA. This final action on the State’s attainment date waiver request is non-precedent setting, and the decision to grant a waiver is based on a current reading of the law and on facts specific to the Anthony. New Mexico nonattainment area. As the EPA refines Its policy concerning waivers, areas may face different procedural and substantive showings under section 188(f). The EPA is also granting the Anthony PM—to nonattainment area the exclusion from PM—to precursor control requirements authorized under section 189(e) of the CAA. Finally, to satisfy section 189(c) of the CAA (regarding quantitative milestones and RFP). the State of New Mexico must report to the EPA every three years. beginning on, November 15, 1994, the following Information regarding the Anthony nonattainment area: (1) The status and effectiveness of the exlstln? controls; (2) Significant changes in the Inventory due to new source growth or other activities; and (3) An evaluation of any additional controls which maybe feasible to reduce exposures and/or bring the area into attainment. Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to the SW shall be considered separately In light of specific technical, economic, and environmental factom, and In relation to relevant statutory and regulatory requirements. This action makes final the action proposed at 58 FR 18190. As noted elsewhere In this action, the EPA received no adverse public comment on the proposed action. As a direct resuh. the Regional Administrator has reclassified this action from Tablet to Table 2 under the processing proosdures established at54 FR 2214, January 19, 1989. Regulatory Process Under the Regulatory Flexibility Act, 5 U.S.C. 600 at seq.. the EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C 603 and 604. Alternatively, the EPA may certify that the rule will not have a significant Impact on a substantial number of small entities. Small entities Include small businesses, small not-for- profit enterprises, and government entities with jurisdiction over populations of less than 50.000. SIP approvals under section 110 end subchapter I, Pail D. of the Cs’iA do not auete any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the Federal SW-approval does not impose any now requirements,! certify that it does not have a significant impact on any small entities affected. Moreover, due to the nature of the Federal-State relationship under the CA /I. preparation of a regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Act forbids the EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v U.S. E.P.A.. 42 ? ------- Federal Register I Vol. 58, No, 173 I Thursday, Septembor 9. 1993 I Rules and Regulations 47385 U.S. 246:256.-66 (5: Ct. 1976); 42 U.s.c. 7410(a)(2). . Under section 307(b)(1) of the CAA’ petitions for judicial review of this action must be filed In theUnlted States Court of Appeals for the appropriate circuit by November 8, 1993. 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 lt extend the time within which a petition, for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. .This action may not be challenged later In proceedings enforce Its requirements. (See section r. 307(b)(2).) . ‘ &s ..: •‘ : Executive Order i 229 l ’, .w ;Ji ‘.,:; - This actIo i has been classified as a. table 2 action by the Regional. ... . Administrator under the procedures published In the Federal Register on January 19, 1989 (54 FR 2214—2225). On January 6, 1989, the Office of” . . - Management and Budget (0MB) waived tables 2 and 3 SIP revisions (54 FR. 2222) born the requirements of sections 3 of Executive Order 12291 for a periodS of two years. The EPA has submitted a request for a permanent waiver for table 2 and 3 SIP revisions. The 0MB has.• agreed to continue the temporary waiver until such tJme as it rules on the EPA’s ’ request; r.’,t:, . .1. List of Subjects In 40 CFR Part 52,’ : ‘. Air pollution control, Environmental \ protection, Hydrocarbons, Incorporation. by reference. Intergovernmental - !.: ,, . relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements. Sulfur dioxide,.Volatile organic compounds. . Note: Incorporation by’reference of the SIP for the State of New Mexico we. approved by the Director of the Federal Register on July 1. 1982. .‘ i’—’- . .. Dated: August 23 1993.. . . ‘: ‘ . I Jo. D. WinIcle,’ ‘ ‘ • , :S’ ‘t, Acting Region al Administrator 6A).. 40 ‘R Part 52 ls ”amende4 as follpws I .. ,,, PART 52-A ENDEDJç, ,I 4. 1. TheAuthority citation for part 52” ‘contiitues to ’read as follows: ‘ • , , .. . . . . . . .. Autburt2y42 U.S.C.7401—7671q. Subpart GG.-NewMezIc ’ .., 1. Section 52.1620 Is amended by ” . ’ adding paragraph (c)(5O) to read as follows: g , . . , t’.’ ’ • % t.J . S2.1620 Id.ntlficat!onof plan. . - . ,‘ ; ?: i 1 I ,i r. 3 , r . (c) • • (50) A revision to the New Moxico SLate Implementation Plan (SIP) addressing moderate PM—la nonattainment area requirements for Anthony was submitted by the Governor of New Mexico by letter dated November 8, 1991. The SIP revision included, as per section 188W of the Clean Air Act, a request for a waiver of the attainment date for Anthony. (i) Incorporation by reference. (A) Revision to New Mexico AirS Quality Control Regulation 301— Regulation to Control Open Burning, section I (definition of “open burning”), as filed with the State Records and Archives Center on February 7, 1983. (ii) Additional material. (A) November 8. 1991, narrative plan addressing the Anthony moderate PM—. 10 nonattainment area, including emission Inventory, modeling analyses. and control measures. (B) A letter dated October 29, 1991. from Judith M. Price, Done Ann County Planning Director and Assistant County Manager, to Judith M. Espinosa. ‘ ,•.. Secretary of the New Mexico Environment Deportment, in which the County committed to implement and enforce all Done Ann County rules, regulations, policies and practices, - including those Identified In the draft PM—b SIP which reduce airborne dust In the Anthony area. The Dons Ann County rules, regulations, policies and practices identified In the draft Anthony 4 PM—b SIP are identical to those identified in the final Anthony PM—b SIP. (C) A letter dated November 21, 1991, from Cecilia Williams, Chief. New Mexico Air Quality Bureau, to Gerald Fontenot, Chief, Air Programs Branch, EPA Region 6, expressing satisfaction with the October 29. 1991. commitment letter from Judith Price to Judith Espinosa. (D) Anthony PM—la SIP narrative from page 10 that reads as follows: “The State remains committed to the dust control measures Implemented by Dona Ann County, moderate area control strategies as agreed to in this SIP submittal and to the established air quality monitoring schedule.” (FR Doc. 93—21921 Filed 9—8— 3; 8:45 aml siu.mo coos ssoo-ae- ACTiON: Final rule. SUMMARY: in this action, Environmental Protection Agency (EPA) approves numerous amendments to the Lane Regional Air Pollution Authority’s (LRAPA) rules for the control of air pollution In Lane County, Oregon as revisions to the Oregon state Implementation plan (SIP). These revisions were submitted by the Director of the Oregon Department of Environmental Quality (ODEQ) on May 30, 1986: December 5, 1986: May 8, 1987: March 3, 1989; March 12, 1990: June 8, 1990; and November 15, 1991 in accordance with the requirements of section 110 of the Clean Air Act (hereinafter the Act). In accordance with Oregon statutes. LRAPA rules must be at least as stringent as the ODEQ statewide rules. EFFECTiVE DATE: This action will be effective on November 8. 1993 unless notice is received by October 12, 1993 that someone wishes to submit adverse or critical comments. If the effective date is delayed, timely notice will be published in the Federal Register. ADDRESSES: Written comments should be addressed to: Montel Livingston. SIP Manager. Air Programs Branch. AT—062, Environmental Protection Agency. 1200 Sixth Avenue, Seattle, Washington 98101. Documents which are Incorporated by reference are available for public inspection at the Public Information Reference Unit, Environmental Protection Agency, 401 M Street, SW, Washington, DC. Copies of material submitted to EPA may be examined during normal business hours at the following locations: Air & Radiation Branch, Environmental Protection Agency, Docket OR22—l—5635, 1200 Sixth Avenue, AT—082, Seattle. Washington 98101. and Oregon - Department of Environmental Quality. 811 S.W. Sixth, Portland, Oregon 97204. FOR FURTHER INFORMATION CONTACT: David C. Bray. Air Programs Branch, AT—082, Environmental Protection Agency, 1200 Sixth Avenue, Seattle, Washingtpn 98101, (206) 553—4253. SUPPLEMENTARY INFORMATION: I. Background On May 30. 1086 the Dkector of the Oregon Department of Environmental 40 CFR Part 52 ‘ Quality (ODEQJ submitted a completely revlsed and updated implementation (OR—22—1—6635; FR1415023 plan for the State of Oregon. Included in this updated plan were then current Approval and Promulgation of rules for the Lane Regional Air Pollution Implementation Plans; Oregon : Authority (LRAPA). Further revisions to AGENCY: Envtronmental Protection’ the LRAPA rules were submitted by the Agency. Director of the ODEQ on December 5, ------- EL A 8 Federal Register / Vol. 58, No. 194 I Friday, October 8, 1993 / Proposed Rules (our business qualifies and in what way uid to what degree this proposal will conoinicaUy affect your business. An Initial Regulatory Fle dbi1ity Analysis discussing the Impact of this proposal on small entities Is available in Lb. docket for Inspection or copying where indicated under “*ocaEesEs. ’ The analysis indicates that the only businesses which will be directly affected by the amended bridge opening schedule, the excursion boat operators. will be able to adjust their schedules without Impact on their businesses. However, one marina operator whose marina is located upriver from the bridge feels that the scheduling change will Indirectly affect him. He feels that the change will cause him to lose business because boat owners will relocate their vessels down river, below the bridga. Collection of Information This proposal contains no collection of information requirements under the Paperwork Reduction Act (44 U.S.C. 3501 etseq.). Fsdarsliem The Coast Guard has analysed this proposal In accozcbrnce with the principles and criteria contained in Exacutive Order 12612 anè has determIned that this proposal does not have sufficient federilism Implications to warrant preparation of a Federalism AS wOflt. The Coast Guard has reviewed the environmental Impact of this proposal and’concluded that under sectIon 2.8.2 of the NEPA Implementing Procedures, COMDTINST M16475.1B, this is categorically excluded from envtlonmAntal documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the human environment. A Categorical Exclusion Determination Is available In the docket for inspection or copying where indicated under “A ORE$Ifl.” List at Subject . In 33 ( RPart 217 Bridges. PART 117—DRAWBRIDGE OPERATiON REGULATiONS For the reasons set out in the preamble, the Coast Guard proposes to ‘tmend Part 117 of Title 33, Code of eders1 Regulations. as follows: 1. The authority citation for Pert 117 ontlnues to read as follows: Autheiity 33 U.S.C S499’. 49 C ’R S 1.46: 33 RS1.O5(gi. 2. Part 117 Is amended by revising paragraphs (b) Introductory text. (b)(1) and (b)(2) of § 117.687 to read as follows: 5117.687 SLCroIxRIvsr. • • • • • (b) The draw of the S3& Bridge, Mile 234. at Stiliwater, shall open on signal as follows: (1) From May15 through October 15, Monday through Friday. except Federal holidays: (i) From 8a.m. to 10p.m.. every hour on the hour: (10 From 10 p.m.to 8a.m.. if at least two hours notice is given. (2) From May 15 through October 15, Saturdays, Sundays. and Federal holidays: (I) From 8 a.m. to midnight. every hour on the hour: (ii ) From midnight to 8a.m., if at least wo huts notice Is given. Dated September 23. 1993. Paul M. Blayesy, ftearAdmbvi. U.S. Coast Cuaid Commande Second Coast Guard Dlsfrict. IPR Dec. 93—24607 FIled 10-793:6:45 am) sties coca is*ie.s ENVIRONMENTAL PROTECTiON 4OcPRPastS2 (1X-14-1-6115 47$7-2j Approval and Promulgation of Air Quality miplimsotedon Plans; Tens; Rsvla$on to the Stats bnplsmsntatlon Plan AddressIng P15-10 for El Paso ICV U.S. Environmental Protection Agency ( EPA) ACUKhL Proposed rule’ni&lnI ! UtIRY This a on proposes approval of a ievlsiem to the Texas P14-10 State ImplementatIon Plan (SW) for El Paso. Texas. P14-10 Is defined as particulate matter with an aerodynamic dima4er less than or equal to a niwnii l 10 micrometers. The EPA is also proposing to approve the P14—10 SIP for El Paso. Texas, as meeting the requirements of section 1798 of the Clean Air Act (CAM regarding Implementation pians end revisions for International border areas. 0a1ES Comments on this proposed action must be received In writing on or beforeNovember8. 1993. AW8 Written comments on this action should be addressed to Mr. Thomas H. Dlggs. Chief. Planning Section. at the EPA Region 6 Office Indicated. Copies of the documents relevant to thi, proposed action are available for public inspection during normal business hours at the following locations. The Interested persons wanting to ex mlne these documents should make an appointment with the appropriate office at least 24 hours before the visiting day. U.S. Environmental Protection Agency, Region 6, Air Programs Branch (6T-AP), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202—2733. Texas Air Control Board, 12124 Park 35 Circle, Austin, Texas 78753. FOR RJRT1IER UtFORMATION CONTACT Mr. Mark Sather, Planning Section (6T .AP). Air Programs Branch. U.S. EPA Region 6.1445 Rose Avenue, Dallas, Texas 75202—2733. Telephone (214) 655—7258. S1WPLE NTARY elFoRuAms: El Peso. Texas. was designated nonatairnnent for PM—I a and classified as moderate under sections 107(d)(4)(B) and 188(a) of the CAA, upon enactment of the Clean Air Act Amendments (CAAA) of 1990.’ Please reference 56 FR 56894 (November 6, 1991. codified for Texas at 40 CFR 81.344) and 57 FR 13498, 13537 (April 16, 1992). The air quality planning requirements for moderate P14-10 nonattalnment areas are set out In subparts I and 4 of part D, title I of the CAA. Subpart I contains provisions generally applicable to all nonats.iTI nent areas and Subpart 4 contains provisions specifically applicable to P14-10 nonattainment areas. At times, Subparts I and 4 overlap or canflbt The EPA has attempted to clarify the relationship among these various provisions In the General Preamble and, as appropriate, In this action. The EPA has issued a “General Preamble” describing the EPA’s prellmInasy views on how the EPA Intends to review SIPs and SiP revisiocs submitted under Thi. I of the CAA. lncln IIng those State aubmittals conI nIng moderate P14—10 n itaalnment area SIP requirements (see generally 57 FR 13498 (April 18. 1992) and 57 FR 18070 (April 28. 1992)). The reader should refer to the General Preamb l° for a more det a. led discussion of the interpretations of Til. I advanced In this proposed action and the supporting rationale. In this ruimnoking action on the El Paso T.s.is. moderate P14-10 SIP, the EPA is ‘Th.i99O ’— ’-’ ’teth.asas .tJ .:I dg n4fi ’ 4 di 6 .i ib. iii quili’. ; . . iequlrauauu f ume that do uat meal •r 4 -”i cm tbi .to qui .’i a. that doss mau l) tb PM .0 - ‘-l -. air quality staud.rd. (iss PubI,c a. 101445.104 S1aL 235* th AfrAet,aa—.— &42U5C .,•,. seq. iVL 5 52467 ------- Federal Re ter / Vol. 58, No. 194 / Friday, October 8, 1993 / Proposed Rules propoung to apply its rpretationa, taking Into consideration the spedflc f 4umI i A presented. Thus, the EPA will consider any timely si.h... It..d COmmant* before taking final athon on this pv osaL On November 15. 1991. the Governor of Texas submitted to the EPA the SIP revision for PM-b concerning El Paso, Texas. The CAA specifies that States containing those moderate PM—to nonattainnient areas designated nonattainmeut under section 107(dX4) of the Act were to submit SIPs to the EPA by November 15. 1991. and outlines t iL required items to be included in the SIPs. These required items, due November 15. 1991. unless otherwise noted. include: (1) A comprehensive. accurate, and cunont inventory of actual emissions from all of PM—b in the nonattainment area ( section 172(c)(3 ) of the CAA) (2) a Ip iawtobesubmfttedby June 30. 1992. which meets the requirements of sectIon 173 for the coestruction and operation of new end modified major stationary sources of PM—to (section 189(aXIXA)); (3) a demonstration (Including air quality modeling) that the plan provides for attainment of the 131-10 National Ambient Air Quality Standards (NAAQS) as expeditiously as practicable but no later than December 31. 1994, or a demonstration that attainment by that date is imprac t icable. (section 189(a)(IXBTh (4) provIsions to assure that Reasonably Available Control Measures (RAO4). Including Reasonably Available Control Technology (RACfl. for control of PM— 10 will be Implemented no later than December 10.1993 (sections 172(cXl) and 189(a)(1)(C)). For sources emitting insignificant (de minimis ) quantities of PM-to, the EPA’s policy is that It would be unreasonable and would not constitute RAC 4 to requue controls on the source (please reference 57 FR 33540). Also, when evaluating RA 4 and RACT. the technologicel and economic feasibility of the cuntruls relevant considerations (57 PR 13540- 13544); (5) quantitative ‘ t on reduction milestones which are tube achieved every three years until the area is redesignated ate inInent and which demonstrate reasonable further pio s (RFP) toward attAinifig the PM—b NAAQS (section 189(c)); (6) contingency measures due November 15, 1993 (please reference 57 FR 13510-. 13512 and 13 43—135 11), that are to be Implemented If the EPA determines that thearea baa failed to make RFP or to attain the primary standards by the applicable date (section 172(c)(9)); end (7) control requirarnents for major st*ttin ary sources of P7 .1-10 precursors. unless the EPA determines inappropriate. The CAA, in section 189(e). states that control requirements applicable to major stationery sources of PM—b will also be applicable to major stationary sources of PM—b precursors. excupi where the Administrator determines that such sources do not significantly contribute to PM-b levels that exceed the PM—tO ambient standards in the area. As outlined below, the Stats of Texas’ SU’ revision for PM—tO con uudug El Pem, a moderate 131—10 , Inltninrnrlt area, was reviewed ‘ igri 4 n t the appHr hI requirements. The reader is referred to the El Paso PM—to SIP submittal and the EPA ’s supporting terhnwitl Information pertinent details regarding each requlzexnuit. These items em available for public review at the addresses ind4r .ti d above. SectIon 110(k) of the CA.A sets out provisions goveening the EPA’. review of SIP submittals (see 57 FR 13585— 13568). In this action, the EPA Is proposing to grant approval of th. plan revision submitted to the EPA on November 15,1991, for El Peso, Texas, because It meets all of the applicable requirements of th CAA. AnalyáofStdsS ’ 1. Pr’oc.durral Background The CAA requires States to obisew certain procedural requirements in developing ImplementatIon plans for sub im to the EPA. Section 110(aX2) of the CAA provides that each ImplementatIon plan m hmt d by a State mud be adopted alter reasonable notice and publicliwtng.2 See also semica 11 l) of the CM. Also, the EPA mud determine whether a submittal Is complete and therefore warrants further EPAzwd 9t n ( et—1 4 .ni aiO(kX1) sod 57 FR 13585). The EPA’s compleli...t criteria for SIP submittal. are out at 40 CFR part 51. appimsiiHi V (1992). The EPA a mpts to make completeness determinations withIn 60 days of receiving a submission. However. a submittal Is deemed complete by operation of law If. completeness dmination Is not made by the EPA six mnn*h . after receipt of the wbw .c .in After providing adequate notice, the State of Texas heki a public hearing en September 5, 1991, to entertain public comment on tire PM—to lmplernenthtlon plan for El Paso. Following the public hearing the plan was adopted by the $5 172fr )c1ttaCAA tsça is. th pIm n .e t. spp1 — . etc m iiO(.XzI State and signed by the Governor on November 5,1991, and submitted to the EPA on November 15, 1991. ass proposed revision to the SIP. The SIP revision was reviewed by the EPA to determine cmunpleteneu shortly after its submittal, in eccordanon with the completeness aiteria referenced above. A letter dated December 31. 1991, was forwarded to the Governor indicating the completeness of the submittal and th. next steps to be taken in the review pw As noted, in this action, the EPA proposes to approve the Texas P7.4-10 SIP submittal for El Paso and invites public comment on the action. 2. PM-b Emission Inventory Section 172(c)(3) of the CM requires that a n*Irntami.nt plan provisions Include a comprehensive, accurate, and current Inventory of actual emissions from all sources of relevant pollutants in the area. Further. section 1b0(a)(2J(IQ gs” eUy authorizes the EPA to zequed any data ne’ Ty to parfurm air quality modeling for the purpose of predicting. among other thing . Impacts on the PM-to NAAQS. The State of Texas included two inventories In the El Paso PM—to Moderate SIP (1) An Inventory for El Paso County (the Qty of El Paso is located In El Paso County) based on actual aInI ons for the year 1990; and (2) An Inventory far El Paso County based on permit allowable L 4ons (where appropriate) for the year 1994. For 1990, the State calculated 1,082 ton5/y r of PM-to th 4 ons from point sources, 1,891 tons/year from area sources, and 4.640 tons/year from mobile sources ( Inrhia . PM—ia mmI. . from paved and unpaved roads), for a tote] of 7,413 tons/year a! PM—to Projecting for 1994. and accounting for growth factors. the Stat. calculated 1.413 tons/year of PM— 10 m n 1 .tions from point sources. 1.740 tons/yee from area sources, and 4.399 tons/year from mobile sources (induàs PM—to emissions from paved and unpaved roads). a total of 7.552 toes! year of PM-tO emissions. It is importad to note that there were calculation erens In the two emission Inventories submitted by the State. These calculation sours are diecemed in d I In the Te.4mk 1 Support DocumnmL Only one of the errors resulted in gristly different emissions estima This er involved PM—to . ,nlsrdons from agrfcuJtwni HIHng . instead of 120 toes! year, the 1990 Inventory should have calculated PM—1O emissions from agricultural t4lHng operations to be 1.025 tons/year. The State was ai re-examine Its a ” ent ------- Federal RegiMes / Vol. 58. No. 194 / Friday, October 8, 1993 I Proposed Rules 52409 demonstration, as discussed below in Section 4. to ea ount for this additional amount of PM—to emissions. By cover letter dated November 20, 1992. from Lane Hartsock. Deputy Director of Air Quality PI nning, Texas Air Control Board (TACB). to Thomas H. Dig . Chief of the Air Plpnning Section. EPA Region 8. the State submitted a revised emissions inventory addressing the calculation errors. The State used this revised Inventory for an additional attainment demonstration which will be discussed In Section 4 below. 3. Nonaltainmeat New Sourte Review Permit Proçam The State ol Texas has submitted new source review regulatory revisions to the EPA. These revisions. submitted by cover letter from the Govemor dated May 13, 1992, were submitted In pert to meet ruquiieunsnts faund in sections 173 and 189(aXIKA) of the CAA for the construction and operation of new and modified major stationary sources of PM—tO. These revisions were due independently of the November 15. 1991. moderate PM-to noniP ’ ”ent area SW requirements addressed in this action and will be addressed In detail In a separate Pedemi Register notice. 4. Demonsfrotion of Attoinnient of the PM-tO NAAQS by December31. 1994. but for Emissions Emanating From Mexico As noted, the Initial moderate PM—b nonat inTI nt areas must submit a demonstration (Including air quality modeling) showing that the plan will provide for attainment as expeditiously as practicable but no later than December 31. 1994 (see section 189(aHl)(Bfli) of the CA/i). Alternatively, the State must show that attainment by December 31. 1994, Is impracticable (section 189(a)(IUBMUII. There have been several air quality studies conducted in the El Paso/Juarea air basin. Special receptor modeling and otherstudles In El Pasoand aaosa the United States border in Juares. Mexico, conducted by the TACB, the ‘A. the El Paso City-County Health District (EPCX lD). and Mexico’s Seaetariat of Urban Development end Ecology (SEDUE) (now biown as the Seaetarlat for Social Development or SEDESOL). have included PM-to end meteorological moliltoTIng in ’ oth El Paso end Juam. u nds analyses of the monitoring data, trajectory analyses demonstrating PM-b transport from Iuarez into El Paso. and laboratory analyses of air samples. The meet extensive study was performed In Decauzrbs,’of 1990—en 18 day project entitled the “El Paso/juarea Wtnter PM— to Receptor Modeling Scoping Study.” Results from the study showed that generally. PM—b concentrations were higherin Juarez,Mexfco, than in El Paso, and a monitoring station In Juarez consistently reported higher P14-10 values than any other station during the special study period. In addition, when high PM—b 0 concentrations were measured in El Paso, trajectory analyses showed that many of the air parcels came from source regions within Jisarea or areas outside Juarez In Mexico. SectIon 1798(a) of the CAA provides that notwithstanding any other provision of law, a SIP required under the CA/i shall be approved by the Mminktrator 1f (1) The plan meets all requirements applicable to it under the CA/i other than a requirement that auth plan demonstrate attainment and maint nra of the relevant NAAQS by the specified a nment date; and (2) the submitting State establishes to the sa’4 on oItha Administrator that the SIP would be adequate to attain and maintain the relevant NAAQS by the specified attaInment data, but for emissions emanating from outside of the United States. See generally 57 FR 13569-13570. In addition, for PM-b nonattalninent areas, section 1790(d) of the CAA specifies that notwlthdandlng any other provision of law, any State that m tthIhhii . to the Uti o of AiImini ,ator that, with respect to a PM—to n l htainni nt area In mach Slate, such Slate would ha,. attained the NAAQS for PM-la by the applicable attainment dais, but for emissions emanating from outside the United States, than mach PM—to ,,, N$$.f,imant azea lnt h e$t.t .sbailnotbemibjedto the re . 4 a 4fir.tion to s.ri provisions of section 188(bK2) (failure to attain after th. applicable attainment dat.). The EPA has construed this re l fi tion restriction to also extend to ov n 188(bX I) of the CA / i that pertains to r la fi tion before the atrkiniv t date where the EPA determines an area cannot practicably timely attaIn (57 FR 13569, footnote 42). The State of Texas references section 179B of the CA/i when presenting their demonstration. As set out in mere detail below, the Slat. has submitted a demonstration showing that the El Paso PM—tO moderate nonatlainment arm would be In attainment of the PM—tO NAAQS both currently and by December 31. 1904, based on dispersion modeling of United States (El Paso County) PM-tO e ni rons alone. Based on the EPA’s. review, the demonstration appears to be nt4tf ory. Accordingly. the EPA Is proposing to approve the demonstration as showing that the SIP provides for timely attainment of the PM—li) NAAQS but for emissions emanating from Mexico. The State of Texas used five years of hourly meteorological data (National Weather Service data from the El Paso International Airport for the years 1985- 1989) and two sets of emissions Inventory data for El Paso County (1990 actual point, area, and mobile source emissions. and 1994 proWcted allowable emissions) to model PM-to NAAQS impacts In El Paso County. The State used a Geuevi n Plume Multiple Source Air Quality Algorithm (Regional Air Model (RAM)) for modelIng 1990 and 1994 PM—tO emissions, and also used the Valley Screening method far estimating PM-tO..NAAQS impacts of significant elevated point sources an mountainous terrain, such as the nearby Frenfrlin MountaIns (1994 inventory only). PM—to reductions due to some State-adopted control measures addressed In this proposal were not Inchidedin the modeling of the 1994 emissions Inventory. Based on the Gaussian Plume Multiple Source Air Quality Algorithm (RAM) modeling rime, the 1990 annual average PM—tO design concentration for theftveyear etudyper lodwas4 o.I Oug I m3, below the annual PM-to NAAQS of 50 ug/mi. Th. annual PM-b NAAQS is attained when the expected annual arithmetic mean concentration is less than or equal to 50 ug/m’ (40 CFR 50 6). The 1990 24-hour PM—b design concentration for th. five year study period was 91.45 ug/mi. below the 24- hour PM-b NAAQS of I 5O ug/m). The 24-hour NAAQS Is attained when the expected number of days per calendar year with a 24-hour average conrantratlon above 150 ug/in’ is equal toorlessthanone(4O RS0 61. For 1994. the mo 4Ing runs produced a m*vimum annual design conciin’rsuoa 0141.64 uglm 3 and a maximum Z4•hour design c.i.w nbadon of 11408 a 1 m’. both below their respective NAAQS threshold levels. Please reference the Ted nfr 1 Support Document aAd the El Paso PM—tO SIP for pertinent d taaIs on the above modeling demonstrai.oas. As mentioned above in Secuon 2. the Stat. was asked to re-examine the att.Ininit demonstration using a revised Inventory. The State submitted a revised aielnmit demonstration by cover letter dated November 20 I 9Q2. to the EPA. This additional modet:. g resulted In Insigni f icant increases is the maximum predicted PM—tO concentrations In El Paso County Re4 on the revised modeling runs. hi teso annual average PM—la design concentration for the five year is alp period was 40.45 ug/as’. below he annual PM—b NAAQS of 50 u ’ —. ------- 52470 Federal Register / Vol. 58. No. 194 / Friday, October 8, 1993 / Proposed Rules 1990 24-bout PM-to design concentration for the five year study period was 93.52 ug/m3. below the 24- hour PM—to NAAQS of 150 ug/m3. For 1994. the revised modeling runs produced a m imum annual design concentration of 41.92 ug/in3 and a ma dniuin 24-hour design concentration of 114.19 ug/m), both below their respective NAAQS threshold levels: Please reference the revised El Paso PM—to SIP documentation from Lane Hastscck dated November 20, 1992, for pertinent details on the above revised modeling demonstrations. Complex terrain saeening for the 1994 inventory was performed on all elevated point sources which had 24- hour average emissions of 0.5 gram per second or more. The Valley Saeening method was used to determine PM-to impacts on elevated terrain at plume height for each of the significant sources. Predicted Impacts on the nearby Franklin Mountains at plume height for the indicated sources were negligible. 5. RAQf and RACT jbr Control of PM— 20 arid Additional Control Measures As noted, the Initial moderate PM-b nonattainment areas must submit provisions to assure that RACbI (Including RACT) are Implemented no later than December10, 1993 (see sections 172(cXl) and 189(a)(1)(C) of the CAM. The General Preamble contains a detailed dl,r”ualon of the EPA’s interpretation of the RAQA (Including RACT) requirement (see 57 FR 13539— 13545 and 13560—13581). The EPA’s interpretation of this requirement Is set out here only In broad terms. The Stat. should first Identify dvallable control measures, evaluating them for their apin h1a e In light of th. feasibility of the controls and the attainment needs of the area. A State may reject an available control measure if the measure Is technologically tnf,iisible or th. coot of the control is unreasonable. The S W mud demonstrate attainment of the MAAQS as expeditiously as pr iclfr hle bat no later than December 31. 1994 ( ““ the State demonstrates that attahimant by that date Is Impracticable). Therefore 1 If a State adopts less than all 5 nIkht measures but demonstrates, adequately and appropriately, that RPP and att lnn1 mt of the PM-to NAAQS Is assured, and application of all such availabLe meesure would not result In a ” ”t any fester, then a plan which requires implementation of less than all available measures may be approved as meeting the RAQ 1 requirement As a suggested starting point for determining RAGd, the EPA has identified available control measures for sources of fugitive dust, residential wood combustion, and presaibed burning (see 57 FR 18072— 18074 (April 28, 1992)). The State should add to the list of available measures In an area any measures that public commentars demonstrate may well be reasonably available in a particular circumstance. The RACT for a particular source Is milsiily determined. The EPA’s longstanding definition of RACT Is the lowest emission limitation that a particular source is capable of meeting by the application of control technology that Is reasonably available considering technological and economic feasibility (see 57 FR 13541). Thus, the EPA recommend. that available control technology be applied to those existing sources In the area that are reasonable to control In light of the attainment needs of the area and the feasibility of controls.’ A State should submit a reasoned 4ftr*t4a n for partial or full rejection of any ava1bht contrnJ measure (Including any available control t iwilcgy) that explains, with appropriate documentation, why each rejected cuutrol measure Is lnfp.4 4 or otherwise unreasonable and, therefore, does not constitute RAQ 1 (or RACY) for the area. In those PM—tO nnn*tMIm, .i4 areas where mobile sources a%nifi itly contribut, to the PM—tO air quality problem, States also mud address the se on 1080) transportation control measures (see 57 PR13581) . The SW for moderate PM-to nonattainment areas subject to sMilco 1793 must similarly provide forthe fvpt.n.nt.fli.i of poI. dt.fly ivithil, c irJ measures may not be “reasonabir available and. wáuldndh r equ liedbyRAQd (including RACY) whore It can be shown that the PM—to NAAQS could be att .bMd as expeditiously as pv.rtfr.hle in the nonattainment area disregarding emissions co.n.ing from outside the United States . B7 directing the EPA under section 179B to approve the SIP or SIP revision for a moderate PM-to ares showing that it would timely attain the NAAQS “but for” foreign a laa1ons and by excluding such an area .from r 4 fir tlon to serious, Congress has avoided p in H bg such areas by not mib4ig them responsible for control of . ini 4 ons .in.u.ting from a Ibrelgu country over which they have no ‘lb. A b liemd ‘ ‘ “ Øc.I d fm . .iC p s thg.bseldb . —‘iW ,d In d.( Ii ii , RACT to. psdcuI.co s (use 37 FR leOlS—11014). jurisdiction. The rerIs’-tfflcation exclusion avoids subjecting such areas to the more stringent or “best” available control measures applicable In serious PM—b nonattsinment areas (section 189(b)(l)(B)). Further, section 179B(a)(2) by its plain terms requires the State to establish only that the SIP submitted would be “adequate” to timely attain and maintain the NAAQS, ‘but for” emissions from outside the United States. Thus, no State Is relieved from meeting all other applicable moderate ares PM-to S W requirements, including the requirement to Implement RACM. However neither Is any State required to shoulder more of a regulatory and economic burden thee States not thniIiirly affected, by having to Implement measures that go well beyond those which the SIP demonstrates would otherwIse be adequate to attain and maintain the PM- 10 NAAQS “but for” emissions n.u*thig from outside the United States. Such a requirement would be IIwa1 tent with the apparent purpose of section 17gB. Nevertheless, because the NAAQS reflect public health and wolfer. standards, the EPA encourages states to reduce . rn ” '’ . beyond the ,I i4.num necessary to satisfy the “but for” test In order to reduce the PM—to conomtraflons to which their populations are exposed byvhtue of the additional contribution from international transport. The State of Tame In the El Paso SW reviewed RAQd and RACY for control of PM-to. Following is an analysis of the measures employed to control PM— loin El Peso, Texas. A. Fugitive Dust Control Measures An evaluation of available fugitive dud control measures forthe City of El Paso Is included In appendix N of the El Paso PM—to Moderate SIP. The Slate of Tame has incorporated provisions Into the TACB Regulation I which control fugitive particulat, emissions from m ,ialn handling constructon. roads, streets , alleys, and parking Lots in the El Paso area. A Memorandum of Undemtanding (MOU). dated November 5,1991, between the City of El Paso and the TA , Included In the SW submittal, will serve as the basis for dqfinlng the division of responsibility for. end th riimmitmente to carry cot. pertinent provisions of Regulation L to any event, the TACE has the ultim . enforcement authority to ensure th. ImpIam ”ntatlon of these fugitive dua control measures. Each pertinent — “i — of Regulation I will be discussed b.iose Even though the TACE demonatrst.d that the El Paso PM-tO nonat’ ir ------- Federal Register / Vol. 58. No. 194 / Friday. October 8, 1993 I Proposed Rules 52471 area would be In attsinment by December 31. 1994. without including J.he fugitive dust control measures, the tate of Texas is implementing control measures for fugitive dust in the El Paso area. The State has authority under section 118 of the CAA to require these controls, and the EPA is proposing to approve the following provisions of TAO Regulation I as control measures beyond RAQ4 which strengthen the Texas SIP. Moreover, as discussed later. the EPA I . proposing to treat these and the other control measures that go beyond the minimum RAQ.1 requirement as fulfilling the requirement for contingency measures. Section 111.141. This section i tes certain provisions In Regulation I applicable to the El Paso area (including the Fort Bliss Military Reservation except for tactical trsining areas) and also cites appropriate compliance dates. with compliance being no later than December 31.1991. for some provisions. and no later than December10, 1993. for the rmftu 4 nlng provisions. Section I1J.143. Part one of this section requires maximum control of material storage piles through appilcedo. of water or suitable chemicals or other coverings. Part two of this section requires proper ins’ ll ’ 4 on, maintenance end use of hoods, fans, and filters to R,wl m , collect, and dean nimions of any dusty materials (if applicable). Finally. part three of this section requires covering of all open bodied trw±s, trailers, and railroad cars transporting materials which can aeete airborne particulate matter in public areas within the City of El Paso. It Is Important to note that this section was previously adopted by theTA( on June18, 1989. after proper public notice and hearing (public hearings were held on February 1—2.1989). ThIs section was previously submitted to the EPA by cover letter from the Governor dated August 21. 1989. Secdon 111.1 45. ThIs section requ Ires dust control (e.g.. paving or chemical stabilization) at all cons*r m and demolition sites In theCityof ElPaso including control of ai points to paved roads. It Is important to not . that parts I and 2 of this section was. previously adopted by the TAC on June 10.1989. after proper public notice and hearing (public bearings were held on February 1—2.1989). These par t i were previously submitted to the EPA by cover lettar from the Governor dated August 21.1989. Section 111.147. Part ens of this section requIres dust control measures (La.. paving, watering. chemical Sh%h4fi .HO 0 ) frw the following unpaved surface. in the El Paso area: industrial facility roadways, public thoroughfares. commercial roads, residential roads, allays (paving at the rate of at least 15 miles per year). and levee roads. Part two of this section requIres removal of soil or other materials from roads by means of mechanical sweepers. including removal of sand applied on public thoroughfares for snow or Ice control in the City of El Paso. in iM1H 00 , a sweeping schedule and recordkaeplng of such activities is specified. Also, this section gIves the P Hv Director, with the concwvence of the EPA, the option of granting a waiver from paving requirements for industrial roadways. provided the roadway owner can demonstrate that the cost of paving is economically unreasonable compared to other forms of dust control specified In section 111.147(1). It is Important to note that parts 1(B) through 1(D) of this section were previously adopted by the TAC on June 16. 1989. a orooer public notice and hearing (puLlic hearings ware held on February 1-2. 1989). These parts were previously submitted to the EPA by cover letter from the Governor dated August 21. 1989. Section 111.149. This section requIres parking surfaces in the City of El Peso with mere than five parking spaces to be paved or uniformly covered with raveL Temporary p fr4ng lots m app( water or asdtthl oil or chemicals to cu trul duet. while all parking lots with more tbm 100 frIng spaces must be pav o d o r uv dbyaneq uIval e nt methodtoveringasdetermlnedbytbs E,imuthw iredor of the TA . The equivalent method shall not include the ttHil 1ofw 5Jtemsterjala from Industri a l pru It Is Important to ng thet this section wes previously adoptsdbythsTA( on June18, 1989, aftmjwoper public notice and hearing (public bearings ware held on February 1—2. 1989,. ThIs section was previously submitted to the EPA by cover letter from the Governor dated August 21. 1989. 9. Off.’rosd Reaeatinnal V ’1’4 4 The Stat. considers, and the EPA agrees, that P P . 1— 10 i ions due to of- road reaeatlooal eDhfrh,are do mI,ii ,n1 . According to the EP iD. ther. is no . 4g, 4Cr t off-road vehicle use IntheQtyolElPuo. Asdiscussed earlier, where sources of PP.4—10 contrIbute iigp4fir.ntly to the PP.1.-to problem In th. area, the EPA ’s policy Is that It would be unreasonable to require the 5u w. to implement potentially available control measures. Therefore, such potentially availabl, control measures are not “reasonably” available and RAC 1 does not require controls on insignificant PM—b sources (57 FR 13540). C. Resid ifi*l Wood Combustion Control Measures An evaluation of available residential wood combustion control measures for the City of El Paso is inciwled in appRndli 0 of the El Paso PM-b Moderate SIP. The State of Texas has incorporated proviainns into Regulation I(section 111.111(c)) which require an episodic curtailment program to be implemented in the City of El Paso regarding wood combustion. This program mandates operating restrictions for solid fuel heating devices in the City of El Paso, Including the Fort Bliss Military Reservation, during periods when National Weather Service data iwIb ites that an atmospheric stagnation condition exists or Is predicted to exist. The pIuw contains exemptions to account for burn down periods, sole of heat, and temporary power l s . The City of El Paso also enforces an episodic curtailment program regarding wood combustion under Cirapter 9.38 of the City Code. This City orvllnanr . was submitted as part of the SIP. The TACB and the City of El Paso are working together on producing pamphlets and other materials for e .Ii .. .ffng the public regarding re k rf. ) wood combustion devices andwoodsmoks,ascalled for Lath. November 3, 1991, MOU between the QtyandtheTA .Asinthecas.of fl Ithv dust centrul m , this MOU betv .an the City of El Paso and the TAG, submitted as a part of the SIP. u as the basis for defining the division of reeponsthllity for, and the Ahn to onry out, the provisions of Section 111.11l(cl and Oiaptsr9.38 of the City Code, both concerning solid fuel heating devices. Nevertheless, the TACB Is responsible for the u1$m Implementation and enforcem_ent of this prugram. The TAO is Implementing thee. residential wood combustion control measures even though attainment of the PM—b stanlards for the El Paso area was demonstrated by Dermnhe , 31. 1994. without lderatlcn of these adopted control measures. Thus, the EPA is proposing to approve ihe El Paso residential wooà combustion control meamnes as control measures beyond RAQII which strengthen the Texas SIP As discussed fUrther below, the EPA t. proposing to treat these and other control measures that go beyond the minimum RAOd requirement as fnlfifliiig the requirement for omdogenqmeaemes. ------- 52472 Federal Register / Vol. 58, tb. 194 I FrIday, October 8, 1993 / Proposed Rules D. Prescribed Burning Control Measures Prescribed burning, Induding agricultural or silvicultural burning, is controlled by the TACB Regulation I under Sections 111.101, 111.103, 111.105, and 111107, whIch detail prohibitions for outdoor burning and general requirements for allowable outdoor burning. Please reference these sections of Regulation I attached to the Technical Support Document It Is important to note that these sections were previously adopted by the TACB on June 16, 1989. after proper public notice and hearing (public hearings were held on February 1—2,1989). These sections were previously submitted to the EPA by cover letter from the Governor dated August 21, 1989. As staled earlier, the TACB Is implementing these prescribed burning control measures even though att nment of the PM-ID standards for the El Paso area was demonstrated by December 31, 1994, without consideration of these adopted control measures, end the EPA Is proposing to appiuv these and other measures as fulfilling the contingency measure requirement. E. Point Sources For El Paso, RACE Includes control of e dsting stationary point sources for stack, process, and fugitive particulate emissions. RACE for a particular point source Is determined on a case.by.ass basis and considers the technological and economic fou ibllity of redudug emissions from that source. The State of Texas Included an analysis of RACL’ for El Paso point sources that had total suspended particulate emissions equal to or greater than 25 tons per year. 1 — — stack. pro is , end fugitive p rtlciili .f a mIiIons , Is found in appendix P of the El Paso PM-b SIP. This analysis was comprised of. current listing of RACT (appendix P1 at specific emission points of PM-b for El Paso point sources. App ndlx P provides a description of control equipment and emissions In tons per year for the point sources. The TA( enforces RACT through fedarally enforceebl. permit conditions. The EPA is proposing to approve the El Paso PM— 10 SIP as adequately cou*ml!IIlIg RACE for stationary point sources. In summary, the EPA Is proposing to find that the State of Texas’ PM-b SIP lot the El Paso nonatt I .ment area includes adequate RAQ4/RACF as discussed in astall above. The State of Texas Included a listing of MC ?. federally enforceabl, In approved permits, being used at all major and other stationary sources In the El Paso area. In addition, the EPA views the State’s prescribed burning, fugitive dust. and residential wood combustion controlmeasuresinRegulation landthe City or lInenoe as conth gumcy measures that go beyond the core RAO4 control strategy. This Is discussed further below. The EPA Is also proposing to approve the MOU between the City of ElPasoandtheTAC l lwh lchservesto define the division of responsibility for, and the commitments to carry out, the provisions of Regulation land Chapter 9.38 of the City Code (City of El Paso w ood cot re otd 6. Milestones and Reasonable Further Section 189(c) of the CAA requires that plan revisions for moderate PM-b nonat nment areas contain - quantitative milestones which are to be achieved every three years until the area is redesignated to attAinment The milAvfmas must also demonstrate to the EPA that reasonable further progress (RPP) toward attainment of the PM-b NAAQS Is being met ( see 57 FR 13539). The A has $tlawptid to reona k the quantitative mileefmt a. and periodic reporting called far in section 189(c) with the EPA’S proposed decision under section 1793 to approv, the El Paso PM-b SIP as meeting the requirements for an International border ares Implementation plan. The State demonstrated that the El Peso nonaftaMm it area would attain the PM—b NAAQS both currently and by December 31.1904. usIng and projected United State. (El Paso Cuwty) ud i aL . , Also, the PM—b problem In the El Paso area Is lat .uiaI4miaIIn scope (contribution from MvicoL Therefore, the EPA slj e ft I snn.hInforElPis oto sati sectIon 169(c) by reporting every three years, be.JimIng on November 13. 1904. the air quality progress aøiially made In response to th. Implementation of control measures. and Information addressing a potential I 4 anr In circumstances In the area that may, In turn, warrant further air quality protection efforts. Specifically, the State should report to the EPA every three years the following Information regardIng the El Paso nonattainniant ares: (1) The status and effectiveness of the e dsi1ng controls, Including quantlflr atlon of . ,nltal m reductions achieved relative to those projected In the El Peso P14 -10 SIP submittal, the subject of this proposed action. (2) i4gp lfi nt rhangR 5 in the Inventory due to new source growth or other activities (to allow far a comparison with the 1990 base year PM-b emission inventory, and the projected 1994 PM—b emission Inventory); and (3) an evaluation of any additional controls which may be feasible to reduce exposures and/or bring the area into attainment Reasonable further progress is defined In section 171(1) of the.CAA as such annual incremental reductions In emissions of the relevant air pollutant as are required by part D or may reasonably be required by the Administrator for the purpose of ensuring att nment of the applicable NAAQS by the applicable date. Since part D does not dictate annual incremental reductions for moderate PM-la areas. the EPA has broad discretion In determining RFP under section 17 1(1). The EPA Is proposing to approve as satisfying RFP the annual Incremental reduction In emissions provided for by the RACM (including RACT) being Implemented In the area. Section 189(c) provIdes that the quantitative mlliafnnes also must demonstrate RPP. Thus, the EPA will the Statea compliance with RFP for this ares In conjunction with determining Its compliance with the quantitative m4h. ....m requirement described above. Thus, when the State demonstrates the El Paso area’s compllaiw with the quantitative milestone requirement It should also demonstrate that RIP has been achieved during sack of the relevant three years. As par sectbm 172(cX9) of the CAA. all n ’ ” ” ent SIPs must contain contingency measures (due November 15,1993) that are to be implemented if the ares falls to make RFP or to attain the NAAC by the applicable date (see 57 FR 13510-13512 and 13543—13544). These wIting .m1y measures are to be lurplamanead Immediately after the EPA determines failure of RFP or attainment of standards. The CM does act specify how many contlopmcy measures are needed or the magnitude of emissions reductions that must be provided by these measures (57 FR 13511). IIowver. since the purpose of the contingency measure requirement Is to proved. far the Impimnantatlim of additional air quality control , ,la.sure , beyond the care control Mr.t to ensure that . nniaaIm . rednrttrm prow Itame to be made In the event of SIP failure to produce RPP or tta4nment contlnrncy measures must tm 0 1 other available trol meemues that m l not Included In the RAQA (hxhi RACfl control strategy. As addressed In the dlscu on 01 control meemires, above, the Implementing vma1 con ol - - ln E lPs sothatars lnexcesa o fthme ------- J Federal Register_I Vol. 58. No._194/ Friday. October 8. 1993 I Proposed Rules 52473 ceeded to provide for timely attainment “but for” emissions from Mexico and that go beyond the RACM (including RACE) requirement In this action, the EPA is proposing to approve the fugitive dust, residential wood combustion, and prescribed burning control measures previously discussed in this action, as contingency measures for the El Paso PM—ID SIP. Implementation of these measures should result in a PM—jo emission reduction of around 400-500 tons per year. These measures appear to go beyond RACM (Including RACfl. The State has demonstrated that the El Paso nonatt*Inment area would be In attainment of the PM—b NAAQS no later than December 31. 1994, based on U.S. emissions alone, without these control measures. Section 172(c)(9) of the CAA specifies that contingency measures shall “take effact • without further action by the State or the Administrator.” The EPA interprets this requirement to mean that no further rulemaking activities by theStateortheEPAwouldbeneeded to implement the contingency measures (57 FR 13312). The EPA expects all actions needed to affect full Implementation of the measures to occur within 60 days after the EPA notifies the State of Its failure to achieve RFP or to attain (57 FR 13312). The EPA Is proposing to accept the control measures submitted by the State of Texas that are In excess of those necessary to provide for timely attainment of the PM—jo NAAQS “but for” emissions from Mexico, and that ga beyond RACM (Including RACT). as Fulfilling the requirement for contingency measures because the measures will provide for continued emissions reduction progress beyond the core control strategy. It lithe EPA’s determination that since the State has acted to implement these precautionary measures along with the primary RAQ4 (including RACT) control strategy that these measures essentlally.provld. advance contingency benefit and satisfy the requirement that they “take effect without further action by the State or the Administrator.” The implementation of these control measures in conjunction with the primary control strategy should not disqualify treating them as contingency measures under section 172(c)(9) of the CAA. Section 172(c)(9) Indicates that the SIP shall provide for the impLementatlon ’of contingency measures to be undertaken If the area fails to make RIP or to ely attain the NAAQS. The State of Texas Is. in effect, accelerating Its implementation of contingency measures for El Paso. Alternatively, these measures would be undertaken at some later time f the area failed to make RIP or timely attain “but for” emissions from Mexico. It would. quite simply. be absurd to penalize or otherwise discourage the State from tAking the arguably more precautionary air quality management step of accelerating the implementation of the contingency measures. Finally, the EPA notes that the mAgnitude of emissions reduction progress provided by these measures appears reasonable in light of improved PM-jo air quality on the U.S. side of the border over the last three years. There have been no exceedances of the PM—b annual standard, and 3 recorded exceedances of the 24-hour PM—b standard (one In October, 1991, and two In October, 1992 at one site), sInce 1990. The three recorded exceedances were 168 ug/m3. 159 ug/m3. and 158 ug/mJ. not too far over the 24-hour standard of 150 uglrn’. In addition, the TACB commits to developing future contingency measures provided that adequate Information from Mexico becomes available. It Is anticipated that the EPA, the TAG, the City of El Paso. and SEDUE (now SEDESOL) will continue their cooperative effort In studying the PM—1O air quality In the El Paso/Juazea air basin. The EPA agrees with the State of Texas that the PM-jo a ir quality problem In the El Paso/Juarez air basin Is International in scope, and agrees with the State’s commitment to provid, future contingency measures If adequate Information becomes available. 8. PM-ID PXecurson Sec’ 4 on 189(e) of the CAA states that control requirements applicable to major stationary sources of PM-ia are also applicabl, to major stationary sources of PM—jO precursors, except where the Administrator determines that such sources do not slgnlflcivntly contribut, to PM-jo levels that exceed the PM— ID ambient standards in the area. The General Preamble contains gultlanre addressing how the EPA intends to Implement section 189(e) (see 57 FR 13530-13540 and 13541—13542). The State of Texas used annular denudar samplers during the December, 1990, special PM—1O study as a method to differentiate between gas and particulate phase compounds In the ambient air. The results of the annular denudar sampling showed that a large majority of the sulfur compounds found •AsauI ‘ - ‘- — .smpI1 Is oc. at my plays4 . .cunor asoibu aa A Iat ds buMus th. !— .‘-.IIusISS of uth t. lqus c@ . mu. by cuss butu (u.s 57 FR 13339). on the samples were in the form of gaseous sulfur dioxide (SO,J, and not in the sulfate particulate phase. suggesting that secondary sulfate was only a minor contributor to high PM—b concentrations in the study. For nitrogen compounds, a large majority of the compounds found in the samples were also gaseous, suggesting that nitrate was also a minor contributor to high PM—b concentrations in the study The concentrations of the particulate phase sulfates and nitrates constituted a small fraction of the 24-hour PM—b standard. reng ng from about 3-12 ug/ In 5 , or 2—8 % of the 24-hour PM—to standard (150 ug/m3). It Is also Important to note that the annular denuder sampling was conducted during a time of the year (December) in which adverse meteorological conditions would be expected in the El Pasolluarez air basin. Further, based on review of the PM—1O monitoring data from both El Paso andjuarez. and of the trajectory analyses. It Is very likely that °mls’ 4 ons from Mexico contribute to the PM—b precursor concentrations in El Paso. Thus, the concentrations referenced above are conservative e 4mst . Based upon the preceding study, PM—b precursors do not appear to uigni r*ntly contribute to high PM— 10 concentrations In El Paso. Texas. and theEPAlsproposlngtogrant the El Paso area the exclusion from control requirements as authorized under section 189(e) of the CAA. 9. EnJbrceabilhty Issues All required measures and other elements In the SIP must be enforceable by the State and the EPA (see sections 172(c)(6), lbO(a)(2liA) and 57 FR 13558). The EPA cuturla adcbessmg the enforceability of SIPs and SIP revisions were stated in a September 23. 1987. memorandum (with attachments) from 1 aig Potter. Assistant Administrator for Air and Radiation, etal. (see 57 FR 13541). The oriterla include, for example: Ensuring that the r..ies contained In the SIP are exp ILL.! in netr applicability to the regulatediouices. ensurIng that compliance dates are clearly specified: ensuring that compliance periods and test methods are dearly noted; ensuring that sdsq’sit. recordkeeplng is required; and u sunn9 that any exemptions or variances use clear In their applicability and in bow they aretriggered. In addition to enforceable requirements. nonattainment axe. plan provlssoe. must contain a program that prov J.s for enforcement of the control and other elements in the SIP section 11O(aXZ)(C)). ------- 52474 Federal Register / Vol. 58, No. 194 / Friday. October 8, 1993 I Proposed Rules The State of Texas has an enforcement proçam that will ensure that certain control measures contained In the El Paso P14-10 SIP (I.e., Regulation I and the City Ordinance) are adequately enforced. The State has also entered into an MOU with the City of El Paso which serves to define the division of responsibility regarding. and the commitments to carry out, the provisions of Regulation I and Chapter 9.38 of the City Code pertaining to control measures for fugitive dust end residential wood combustion devices. RACT for stationary point sources Is enforced by the TACB through federally enforceabl, permit conditions. 10. Sumznasy The Covernor of Texas submitted tbe moderate PM-tO SIP for El Paso to the EPA an November 15. 1991. The El Paso SIP analyzed P14—10 emissions from point and ares sources around the El Paso r gI. .i Using a Cat1t* An Plume Multiple Source Air Quality Algorithm (RAM). the State demonstrated that the El Paso nonatt 4fiment area would attain the PM-b NAAQS both currently and by December 31. 1994. using current and y uJ ted United States (El Paso County) am 1 ons alone. The State also conducted a comprehensive RAQ.f/ RACI’ analysis. Including a RACT analysis for El Paso stationary point sources. The State has adequately addressed RACT for El Paso stationary sources through federally enforceable permits. Further, the State has adopted certain provisions found In Regulation I which Incorporate control measures for fugitive dust. prescribed burning, and residential wood combustion devices that go RAQvI and that the EPA is proposing to apy vv as fnlClHng the requirement for contingency meemnss. The State has also entered Into an 140 ( 1 with the City of El Paso which zv to define the division of responsibility regarding. and the commitments to carry out, the provisions of the TAQ Regulation! and Chapter 9.38 of the City Cod. pertaining to control measures for fugitive dust and residential wood combustion devices. — Action The EPA i. proposing to approve the El Paso, Texas, moderate PM-in SIP. The EPA is also proposing to appwvv the El Paso. Teas, moderate P14-In SIP as meeting the requirements of section 1798 of the CM.. All required SW Items hay, been adequately addressed as discussed In this Federal Register action, end the Stats of Texas has conducted a comprehensive RACM( RACI’ analysis. Based on the above evaluation, the EPA proposes to approve the El Paso. Texas, moderate PM-1O’nonattainmeut SW. Additional requirements, such as the nonattainment new source review program for the area, will be addressed Independent of this action. Request for Public ( ‘.n i. ants The EPA requests comments on all aspects of this proposal including the EPA’. proposal to appruv the P14-10 SIP for El Paso. Texas, as meeting the requirements of section 179B of the CM. regarding Implementation plans and ravIsion for i nternational border areas. As Indicated et the aut nt of thir acth,a. the EPA will o sthr ny comraenta r ,iwrd by 33 days from date of publicatfr .a. Under the Regulatory Flexibility Act. 5U.S.C .6000tseq..theEPAmust prepare. regulatory ftai ,4h4IIty analysis asseaiug the Impact of any proposed or final rule on email entities. 5 USC. 803 and 604. Alternatively, the EPA may certlfythatthorulswlllnothavea dgrl 8 rnns Impact on a substantial number of email entitles. Small entitles Include email businesses, small not.for- profit entprpzlses. end government entities with Jurisdiction over pop .i6Ha .. of lees than 50.000. SIP approvals under section 110 and .ubchapterLpartD.oftheCudonot oreste any new requirements, but simply apprvvv requirements that the State I. abusdy Imposing. Thereforea because the Federil SW-approval does not Impose any uw requirements. I ontify that It doe. not have a %n4fl nt Lmp on any small entitle. affected . Itemover, due tothe nature of the Federal-State relationship under the CAA, preparation of. regulatory fle dbthty analysis would r . n 4 tute Federal inquiry Into the economic ressvm’hleness of State action. The CM forbids the EPA to base Its actimis’ concerning SIPs on such grounds. Union Electric Co.v. U.S. E.P.A.. 427 U.S. 248. 238-08 (S. Ct. 1976 ) ; 42 U.S.C. 74 10(aXZ). V.a,UI1 , Order 12291 The Office of Man*gi.ini.zat and Budget has exempted this nile from the requirements of section 3 of Executive Order 12291. LIdofSuh .ctsIn40C] Riart 52 Air pollution control. Envirnnvnantai protection. Hydrocarbons. ___ !nt. , v. iaental relations, Nitrogen dioxide. Particulate matter. Reporting and recordkeeping requirements. Sulfur dioxide. Volatile organic compounds. Authority: 42 U.S.C. 7401—767 1q. Dated. August 20. 1993. - WJ. Hath.way ActingRegfonalAdmirdstrutw(&4). (PR Doc. 93—24814 Filed 10—7—03:8:45 aml ss coca - DEPARTMENT OF COMMERCE National Ocesac and Atmospheric AdmIrJ, !r3 l cn fle lCFRP art34i Ri.f Fish Fis Iwy of th. Gulf of 4e co; ruhlic Hearing A icv: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA). Wfl0i# Notice of a public hearing. eusmnn , Th. Gulf of Mexico Fishery Management Council (Coundi) will convene a public hearing to receive public teutlmawty one proposed regulatory amendment for an experimental ane.yea? move of the reef flab longlin&buoy gear boundary line from 20 fethoms to 15 fothoms In two regions oft florida. DATU Written 4, mmai%ts on the proposed actions must be received by November 12. 1993. The hearing Is scheduled for Wednesday. October 27, 1993, from 7 p.m.to 10p.m. a 5U Coiniv ’ nts should be addressed to Steven M Atren. Gull of Mexico Fishery Management Council. 5401 West Kennedy Boulevard. suite 331. Tampa. FL 33609. The hearing will beheldattheMede lraBeech City Hall Auditorium. 300 M nlt ’Ipa1 Dnva. Madeiri Beach. Florida (813—391—9951) FOR RD I O At1CN CONTAC Steven 14. Atran, 813—228—2815. SW t ENTARV W RM*’flON This hearing isphyslcally acoassibl. to people with disabilities. Requests for sign language Interpretation or other auxiliary aids should be directed to Beverly Badillo at the above Council address by October 20.1993. Dated . October 4, 1993. a1 -L..d H. D rof Office of Fisheries Coaa nea. and Manageuzen’. National Mono. (PR Doc. 93—24733 PIled 10-s-es. e u en.j uuier com eri ------- 2 32 - Federal Register I Vol. 59, No. 11 / Tuesday, January 18, 1994 / Rules and Regulations 2222) from the requirements of Section 3 of Executive Order 12291 for a period of two years. ‘EPA has submitted a equest for a permanent waiver for Table and Table 3 SEP revisions. 0MB has agreed to continue the waiver until such time as it rules on EPA’s request. This request continues in effect under xecutive Order 12866 which mperseded Executive Order 12291 on September 30. 1993. Nothing in this action should be onstrued as permitting or allowing or establishing a precedent for any future request for revision to any State Implementation plan. Each request for revision to the State implementation plan shall be considered separately in light of specific technical, economic. end environmental factors and in relation to relevant statutory and regulatory requirements. - Under section 307(b)(1) of the Clean Air Act, petitions for ludiclal review of this action must belled in the United States Court of Appeals for the approprinte circuit by March 21. 1994. Filing a petition for reconsideration by’ the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control. Incorporation by reference. Intergovernmental relations. Reporting and recordkeeping requirements. Sulfur oxides. Note: Incorporation by reference of the State Implementation Plan for the State of Connecticut was approved by the Director of the Federal Register on July 1. 1982. Dated: November 24. 1993. Patricia L. Meaney, Acting Regional Administmtor. Region L Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—(AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority 42 U.S.C. 7401—7671q. - Subpart H—Connecticut 2. Section 52.370 is amendedhy adding paragraph (cl(63) to read as follows: 952.370 IdentIfication of plan.- • • * a a a (c) a a (63) Revisions to the State Implementation Plan submitted by the Connecticut Department of Environmental Protection on March 11. 1993. (i) Incorporation by reference. (A) Letter from the Connecticut Department of Environmental Protection dated March 11. 1993 submitting a revision to the Connecticut State Implementation Plan. (B) Connecticut State Order No 7019 dated March 11, 1993, and effective in the State of Connecticut on February 19, 1993. (ii) Additional materials. (A) Air Quality Modeling Analysis to Demonstrate SO 2 CAAQS/NAAQS Compliance at the Hamilton Standard Division of United Technologies Corporation Windsor Locks CF; June 1991. IFR D cc. 94— O63 Filed 1—14-44 :8:45 am) UJ N4 F 4 OCFRPart52 [ TX-14-i-0091; FRL-4825-eJ Approval and Promulgation of Air Quality Implementation Plans; Texas; Revision to the State Implementation Plan (SIP)Addresslng PM.-1O for El AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This action approves a revision to the Texas State Implementation Plan (SIP) for PM—b in El Paso. PM—b is defined as particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers. The EPA is also approving the PM—lu SIP for El Paso. Texas. as meeting the requirements of section 179B of the Clean Air Act (CAA) regarding implementation plans and revisions for international border areas. EFFECTIVE DATE: This action will become effective on February 17, 1994. ADDRESSES: Copies of the documents relevant to this action aze available for public inspection during normal business hours at the following locations. The interested persons wanting to examine these documents hould make an appointment with the appropriate office at least 24 hours before the visiting day. U.S. Environmental Protection Agency. Region 6. AIr Prograutsliranch (6T-A), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202—2733. Mr. Jerry Kurtzweg (6101), U.S Environmental Protection Agency, 401 M Street, SW., Washington. DC 20460. Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin. Texas 78711—3087. FOR FURThER INFORMATION CONTACt: Mr. Mark Sather, Planning Section (6T-AP), Air Programs Branch, U.S. - Environmental Protection Agency (EPA) Region 6.1445 Ross Avenue. Dallas, Texas 75202—2733, telephone (214) - 655—7258. - SUPPLEMENTARY INFORMATION: Background . . El Paso. Texas. was designated nonattainment for PM—1O and classified as moderate under sections 107(d)(4RB) - and 188(a) of the CAA. upon enactment of the Clean Air Ad Amendments (CA.AA) of 1990.’ Please reference 56 Federal Register (FR) 56694 (November 6,1991), and 57 FR 13498 end 13537 (April 16,1992). The air quality - planning requirements for inode ate PM—b nonattainment areas are set out in subparts one and four of part D. title IoftheCAA. The EPAhas issued a “General Preamb1e”desa ibing the EPA’s preliminary views on how the EPA intends to review SIPs and SIP revisions submitted under title I of the CAA. including those state submittals containing moderate PM—b nonattainment area SIP requirements. See generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992). Those moderate PM—b nonattainmenLarea$ designated nonattainment under section 107(d)(4) of the CA.A were to submit SIPs to the EPA by November 15, 1991. The CAA outlined certain required Items to be included in the SIPs. These required items, due November15, 1991, unless otherwise noted, include: (1) A comprehensive, accurate and current inventory of actual emissions from all sources of PM—b in the nonattainment area (section 172(c)(3) of the CAA); (2) a permit program to be submitted by June 30, 1992, which meets the - requirements of sectioii 173 for the construction and operation of new and modified major stationary sources of PM—b (section i89(a)(l)(A)); (3) a demonstration (including air quality modeling) that the plan provides for attainment of the PM—la NAAQS as ‘The 1990 CAAA made significant changes to the air quality planning requirements for areas that do not meet (or that significantly contribute to ambient air quality In a nearby area that does not meet) the PM—tO National Ambient Air Quality Standards (NAAQS) (see Pub. L. No. 101—549, 104 Stat. 2399). References herein are to the CMA. 42 US C 7401e1 seq. - ------- - Federal Register / Vol. 59, No. Ii I Tuesday, January 18, 1994 / Rules and Regulations 2533 expeditiously as practicable but no later than December 31. 1994. or a demonstration that attainment by that date is impracticable (section 189(a)(IIIB)); (4) provisions to assure that Reasonably Available Control Measures (RACM). including Reasonably Available Control Technology (RACT), for control of PM— 10 will be implemented no later than December 10, 1993 (sections 172(c)(1) and 189(a)(1)(C)). For sources emitting insignificant (de minimis) quantities of PM—la. the EPA’s policy is that it would be unreasonable and would not constitute RACM to require tontrols on the source. Please reference 57 FR 13540. Also, when evaluating RAC2VI and RACT, technological and economical feasibility determinations are.to be conducted (57 FR 13540— 13544); (5) quantitative emission reduction milestones which are to be achieved every three years until the area is redesignated attainment and which demonstrate reasonable further piogress (RFP) toward attidning the PM—b NAAQS (section 189(c)); (6) contingency measures due November 15. 1993 (please reference 57 FR 13543), that are to be implemented If the EPA determines that the area has failed to make RFP or to attain the primary standards by the applicable date (section 172(c)(9)) and (7) control requirements for major stationary sources of PM—la precursors, unless the EPA determines inappropriate. The CAA. In section 189(e), states that control requirements applicable to major stationary sources of PM—ia will also be applicable to major stationary sources of PM—lO precursors, except where the Administrator determines that such sources do not significantly contribute to PM—la levels that exceed the PM—b ambient standards in the area. Response to Comments The EPA received one comment letter from Chevron U.S.A. Products Company on its October 8, 1993 (58 FR 52467— 524 74). FR proposal to approve the El Paso moderate nonattainment area PM— 10 SIP, including the proposal to approve the El Paso PM—b SIP as meeting the requirements of section 1798 of the CA.A regarding implementation plans and revisions for international border areas. The letter expressed overall agreement with the EPA’s proposal to approve the El Paso PM—b nonattainment SIP, but also posed one question regarding the three year progress report discussed in the section entitled “Milestones and Reasonable Further Progress” (58 FR 52472). Chevron expressed overall support for the three year PM—la: - progress report requirement. beginning November 15, 1994, but questioned whether the EPA should require as a part of the report an evaluation of any additional controls which may be feasible to reduce exposures and/or bring the area into attainment Chevron stated that since the EPA has found that the El Paso area would not need any additional PM—1O control measures but for transborder PM—la, they did not see how any additional controls could be justified as feasible for El Paso under the CAA. The EPA. in this final rulemaking action, is approving the El Paso PM—laS SIP because it shows timely attainment of the PM-la NAAQS based oli United States (El Paso County) emissions alone. Nevertheless, because the PM-b NAAQS reflects public health and welfare standards, and because PM—la NAAQS exceedanoes are still being monitored In the El Paso nonaP lnment area, the EPA Is encouraging the State of Texas to evaluate the feasibility of further reductions In El Paso County PM—la emissions beyond the amounts accounted for by the control measures put in place by the PM-b SIP being approved in this action. Additional reductions would furtherreduce the - PM—b concentrations to which the El Paso County population Is exposed to by virtue of the additional contribution from international transport. Any additional control measures found to be feasible by the State of Texas would be subject to full public notice and public comment The State of Texas has committed, provided that adequate information becomes available, to develop a contingency-plan for PM—la in the El Paso area. The State also anticipates the continuation of a cooperative effort to study PM-b air quality in the El Paso/Juarez air basin. Final Actioi Section 110(k) of the CAA sets out provisions governing the EPA’s review of SIP submittals (see 57 FR 13565- 13566). In this final action, the EPA is granting approval of the El Paso, Texas, moderate nonattainment area PM—la SIP because it meets all of the applicable requirements of the CAA. This SIP revision was submitted to the EPA by cover letter from the Governor of Texas dated November 5, 1991. OnOctober 8, i993, the EPA announced its proposed approval of the moderate nonattainment area PM—la SIP for El Paso (58 FR 52467—52474). In that rulemaking action, the EPA described in detail its interpretations of title land its rationale for proposing to approve the El Paso PM—la SIP, taking into consideration the specific factual issues ‘presented. The EPA requested public comments on all aspects of the proposal (please_ referenQe 58 FR 52474), and one comment letter was received dun comment period, which ended onNovember 8, 1993. This final action on the El Paso PM-b SIP is unchanged from the October 8. 1993. proposed approval action. The discussion herein provides only a broad overview of the proposed action that the EPA is now finalizing. The public is referred to the Octobet 8, 1993, proposed approval FR action for a full discussion of the action that the EPA is now finali,ing. The EPA finds that the State of Texas’ PM—l0S lPfortheElPaso nonattnlnment area meets the RACMJ RACF requirement The State of Texas Included a listing of RACT, federally enforceable In 8ppzvi ed permits, being used at all major and other stationary sources in the El Paso area. In addition, the EPA views the State’s prescribed burning. fu tive dust, and residential wood combustion control measures In Regulation land the El Paso City Ordinance 9.38, as contingency- measures that go beyond the core RACM control strategy. The EPA Is also approving the memorandum of understanding between the City of El Paso and the Texas Air Control Boc-’ (TACB) (now the Texas Natural Resource Conservation Commi ic which serves to define the thvisioz responsibility for, and the commitments to carry out, the provisions of Regulation land Chapter 9.38 of the City Code (City of El Paso episodic curtailment program regarding wood combustion). The State of Texas referenced section 179B of the CM when presenting their modeling demonstration Tor El Paso. The demonstration showed that the El Paso PM—b moderate nonattainment area would be in attainment of the PM— 10 NAAQS both currently and by December 31,1994, based on dispersion ntodeling of United States (El Paso County) PM—la emissions alone. After review, the EPA found the demonstration to be satisfactory. Details of the EPA’s evaluation were discussed in theOctober 8,1993, proposed approval action and in the EPA’s Technical Support Document Accordingly, the EPA is approving the demonstration as showing that the SIP provides for timely attainment of the PM—b NAAQS but for emissions emanating from Mexico. The EPA is also granting the El Paso PM—la nonattainment area the exclusion from PM—la precursor requirements authorized under se c ------- 2534 Federal Register I Vol. 59. No. Ii / Tuesday, January 18, 1994 / Rules and Regulations 189(e) of the CA/i. Finally, to satisfy section 189(c) of the CAA (regarding antftative milestones and RFP). the te of Texas will report to the EPA ery three years. begLnning on• wember 15,1994, the following Information regarding the El Paso nonattainment area: (1) The status and effectiveness of the existing controls, including quantification of emission reductions achieved relative to those projected in the El Paso PM-ia SIP submittal; (2) significant changes in the Invento!y due to new source growth or other activities (to allow for a inparison with the 1990 base year PM—b emission inventory, and the projected 1994 PM—1O emission Inventory); and (3) an evaluation of any additional controls which may be feasible to reduce exposures and/or bring the area Info atfnlnment Nothing in this action should be constnze&as permitting, allowing, or etablWiirig a precedent far any f atwe request for revision to any SIP. Each request fat revision to the SIP shall be considered separately In light of specific technical, economical, and environmental factors, and in relation to relevant statutory and regulatory requirements. This action mAkm , final the Ion proposed at 58 FR 52467 (October 8, As noted elsewhere in this .ction, the EPA received no adverse ?ublic comment on the proposed action. As a direct result, the Regional Administrator has reclassified this action from table one to table three under the processing procedures established at 54 FR 2214. January 19, 1989, and revised via memorandum from the Assistant Administrator for Air and Radiation to the Regional Administrators datedOctober 4,1993. Miscellaneous Under the Regulatory Flexzbility Act, 5 U.S.C. 600 at seq.. the EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities (5 U.S.C. 603 and 604). Alternatively, the EPA may oertify that the rule will not have a significant impact on a substantial number of small entities. Small entities Include small businesses, small not-for- profit enterprises, and government entities with jurisdiction over populations of less than 50,000. SIP approvals under section 110 and subchapter I, part D, of the CAA do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP.approval does not impose any new requirements. I certify that it does not have a significant impact on any small entities affected. Moreover, due to the nature of the Federal-State relationship under the CA/i, preparation of a regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The C/iA forbids the EPA to base Its a ’ ctions concerning SIPs on such grounds (Union Electric Co. v. U.S. E.P.A.. 427: U.S. 246.256-66(1976); 42 U.S.C. 74 10(aX2)). Under section 307(b)(i) of the C/iA. petitions for judicial review of this action must be filed In the United States Court of Appeals for the appropriate circuit by March 21,1994. 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 o petition for judidal review may be filed, and shall not postpone the effectiveness of such rule or action. This ii4nn may not be challenged later In proceedings to enforce its requirements (see section 307(b)(2)). Executive Order This action has been classified as a table three action by the Regional Administrator under the procedures published In the Federal Register on January 19.1989(54 FR 2214—2225). On January 6. 1989, the Office of Management and Budget (0MB) waived tables two and three SIP revIsions (54 FR 2222) from the requirements of section 3 of Executive Order 12291 for a period of two years. The EPA has submitted a request for a permanent waiver fortabletwoandthree SIP revisions. The 0MB has agreed to continue the waiver until such time as it rules on the EPA’s request. This request continues In effect under Executive Order 12866 which super eded Executive Order 12291 onSeptember 30. 1993. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. Note: Incorporation by reference of the SIP for the State of Texas was approved by the Director of the Federal Reglsteron July 1, 1982. Dated: December 23, 1993. W. B. Hathaway, Acting RegionalAdministrntor(6A). 40 CFR part 52 Is amended as follows: PART 52—jAMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. l 4 Ol— 7 671q. Subpart SS—Texas 2. Section 52.2270 is amended by adding paragraph (c)(79) to read as follows: - § 52.2270 IdentificatIon of pbn. * . * * . (79) A revision to the Texas SIP addressing moderate PM—b nonattainment area requirements for El Paso was submitted by the Governor of Texas by letter dated November 5, 1991. The S W revision Included, as per section 179B of the Clean Air Act, a modeling demonstration providing for timely attalnment of thePM—10 National Ambient Air Quality Standards faa El Paso but for *mkalo emanating from Mexico. (I) Incorporation by reference. (A) Revisions to Texas Mr Control Board (TACB). Regulation I, Section 111.101, “General Prohlbitlon” Section 111.103, “Exceptions to Prohibition of Outdoor Burning” Section 111.105, “General Requirements for Allowable Outdoor Burning” Section ui.1a7, “Responsibility br Consequences of Outdoor Burning” Section 111.143, “Materials Handling:” Section 111.145, “Construction and Demolition,” Subsections 111.145(1), 111.145(2); Section 111.147, “Roads, Streets, and Alleys,” Subsections 111.147(1)(B), 111.147(1)(C), 111.147(1)(D); and Section 111.149. “Parking Lots,” as - adopted by the TACB on June 16, 1089. (B) TACB Order No. 89-03, as adopted by the TACB on June 16,1089. (C) Revisions to TACB. Regulation L Section 111.111, “RequIrements for Specified Sources,” Subsection 111.111(c); Section 111.141, “Geographic Areas of Application and Date of Compliance;” Section 111.145, “Construction end Demolition,” Subsections 11l.145(first paragraph): 111.145(3); and Section 111.147, “Roads, Streets, and Alleys,” Subsections 111.147(first paragraph), 111.147(1)(first paragraph), 111.147(1)(A), 111.147(1)(E), 111.147(1)(F), and 111.147(2), as — adopted by the TACB on October 25. 1991. (I)) TACB Order No. 91-15, as adopted by the TACB on October 25, 1991. (E) City of El Paso, Texas, ordinance, Title 9 (Health and Safety), Chapter 9.38 (Woodburning), Section 9.38.010, S ------- Federal Register / Vol. 59. No. 11 / Tuesday. January 18. 1994 / Rules and Regulations 2535 “Defi.nthons;” Section 9.38.020. “No- Burn Penods;” Section 9.38.030, “Notice Required;” Section 9.38.040. “Exemptions;” Section 9.38.050. “Rebuttable Presumption;” and Section 9.38.060. “Violation Penalty.” as adopted by the City Council of the City ofEl Paso on December11. 1990. (ii) Additional material. (A) November 5. 1991. narrative plan addressing the El Paso moderate PM—b nonattahjiment area, including emission Inventory, modeling analyses, and control measures. (B) A Memorandum of Understanding between the TA( and theCity of El Paso defining the actions required and the responsibilities of each party pursuant to the revisions to the Texas PM—iD SIP for El Paso, passed and approved on November 5. 1991. (C) TACB cortlficetion letter dated July 27. 1989, and signed by Allen Eli Bell, Executive Director, TA( . (D) TA( certification letter dated ober 28.1991. and signed by Steve Spaw, Evacutive Director. TACB. (B) El Paso PM-la SIP narrative from pages 91-92 that reads as follows:”.. provided that adequate Information becomes available, a contingency plan will be developed In con)undlon with future El Paso PM-1O SIP revisions. It Is .ntfr4pated that EPA. TACB;the Oty of El Paso, and SElXJE Will continues cooperative effoet to study the PM—ID air quality In the E lPasofjunreza lr basin. Based on the availability of enhanced emissions end monitoring data, as well as more sophisticated modeling techniques (e.g.. Urban Airshed Model), futwe studies wi U attempt to better defi’ e the relative contributions of El Paso and Juarez to the PM—ID problem in the basin. At that time, a contingency plan can more appropriately be developed in a cooperative effort with Me,dco. (FR Doc. 94-1062 Filed 1—14—94:8:45 sin) mime roes 40 CFR Part 52 [ G*-14-6-6?* FRL-4$SS- Approval and Promulgation of Implementation Planni IIornla Slate Implementation Plan RevisIon; San Joaqule Valley Unified Air Pollution Con ol District AGENCY: Environmental Protection Agency (EPA). ACflOii Final rule. 1992. The revisions concern rules from the San Joaquin Valley Unified Air Pollution Control District (SJVUAPa)) which is comprised of the following eight air pollution control districts (APC)s): Fresno County APU). Kern County APU). Kings County APU). Madera County APQ). Merced County AP(D. San Joaquin County APCD. Stanislaus County APCl). and Tulare County APU). This approval action will incorporate these rules into the federally approved SIP. The intended effect of approving these rules is to regulate emissions of volatile organic compounds (VOCs) in aa ordanco with the requirements of the Clean Air Act, as amended In 1990 (CAA or the Act). The revised rules control VOC emissions from vegetable oil processing and from can and coil coating operations. Thus. EPA Is finalising the approval of these revisions into the California SIP under provisions of the CAA regarding EPA action on SIP submitials. SIPs for national primary and secondary ambient air quality standards and plan requirements for nonatt nment areas. EFFECTIVE DATE This action Is effective on February 17.1994. AOORESSEES Copies of the n i l. revisions and EPA’s evaluation report for each rule are available Ice public Inspection at EPA’s Region IX office during normal business bouts. Copies of the submitted rule revisions are available for Inspection at the following locationm Rulem Hrg Section II (A-5-3). Air and Tonics Division . U.S Eavl . ,’ ’ Protection Agency. P foa D C . 75 Hawthorn. Stre’t Sen Fr ’c1r” CA 94105. Jerry lCurtrwsg ANR—443. Environmental Pi ctIon Agency. 401 M” Street, SW. Wa.hlagton. DC 20460. Calibals Air Resonues Bond. Stationery Serum Division. Ride Rval S 2020 “I. ” Street. Ser smenta . CA 55612. San Josquin Valley Unified Air Pollution Control District. 1745 West Shaw. Suite 104, Presno, CA 93711. FCR FURTHER DIFORMATTON CONTACt Chris Stamos, Rulemaking Section II (A-5-3). Air and Taidca Division. U.& Environmental Protection Agency. Region IX. 75 Hawthorne Street, San Francisco, CA 94105. Telephone (415) 744—1187. SU .E ITaRV uuFO A11ON: Background On September 2. -1992 at 57 FR 40157. EPA proposed to approve the following rules into the California SIP SJVUAPQ) Ride 461.2, Vegetable Oil Pror ing Operations. and SJVUAPQ) Rule 460.4. Can and Coil Coating Operations. Rule 461.2 wan adopted by SJVUAPO) on April 11. 1991; and Rule 460.4 was adopted by SJVUAPCD September 19. 199L The rules were submitted by the California Air Resources Board (CARD) to EPA on May 30. 1991 and January 28. 1992 respectively. The rules were submitted in response to EPA’s 1988 SIP-Call and the CAA section 182(aK2)(A) requirement that nonattainment areas fix their reasonably available control technology (RACIJ rules foe ozone in accordance with EPA guidance that interpreted the requirements of the pro-amendment Act A detailed discussion of the background breach of the above rules and nonattainrnent areas is provided in the NPR cited abovs. EPA has evaluated the above rules Ice consistency with the requirements of the CAA and EPA regulations and EPA Interpretation of these requirements as expressed in the various EPA policy guiiisnre docaimpiwa referenced in the NPR sited above. EPA has found that the rules meet the applicable EPA requirements. A detailed discussion of the rule provisions and evaluations has been provided at 57 FR 40157 and In terhnial supped (TSI)s) available at EPA’ . Region IX office (TSDs fur Rule 461.2 end 460.4 dated April 30, 1992 and March 12, 1992 r esper y ) , Response to Camments A 30 .day public comment period ws provided at 57 FR 40157. EPA received no comments on rule 460.4. EPA received comments on rule 461.2 horn three souro (1) The National Cottonseed Products Aseodatlott (“N(PAl (2) the J.G Boswell Company. (“Bogweil”) and (3) the Institute of Shortening and Edible Oils. Inc (“Institute ”). AU three commented on SJVUAPQVs definition of volatile organic compounds (“VOCs”)—. su89antiog that the definition not Include vegetable oil emissions. In adtlifba 2 , the NQ’A and Institute also recomummended that SJVUAP(D nil. 461.2 specify performance standards or einI ons hinit rather than specific equipment fur RACF amirols. The nn nts are discussed below. I. Definition of 1W Swnmorj’ of ccmraerds.’ Rule 461.2 ‘ses VOC as “any compound at least ens atom of carbon except for the following eiompt compounds.” Vegetable oil Is not listed as an iiainpt aimpound. The merits stated that the rule should exempt vegetable oil horn the definition of VOC be of Its low voletility and hecaust the EPA has determined that vegetable SUMMARY: EPA is finnirring the approval of revisions to the California State Implementation Plan (SIP) proposed In the Federal Register on Septemnber2. ------- 65326 Federal Register / Vol. 58, No. 242 / Monday, December 20, 1993 / Proposed Rules _SIP approvals under sections 110 and dsubchapterl, part D of the CAA aeate any new requirements, but ‘ r’/ approve requirements that the State is already imposing. Therefore, because the Federal SIP-approval does not impose any new requirements, it does not have a significant impact on any small entities affected. Moreover, due to the nature of the Federal-state relationship under the CAA, preparation of a regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The CAA forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 258—66 (S.Ct: 1978): 42 U.S.C. 7410(a)(2).. This action has been classified as a Table 3 action by the Regional Mministrator under the procedures published in the Federal Register on January 19. 1989 (54 FR 2214—2225). On January 6. 1989. the Office of Management and Budget COMB) waived Table 2 and Table 3 SIP revisions (54 FR 2222) from the requirements of section 3 of Executive Order 12291 for a period of two years. EPA has submitted a - request for a permanent waiver for Table pid Table 3 SIP revisions. The 0MB i agreed to continue the waiver until ch time as it rules.on EPA’s request. This request continues in effect under Executive Order 12366 which superseded Executive Order 12291 on September 30. 1993. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control. Hydrocarbons. Intergovernmental relitions, Ozone. Reporting and recordkeeping req iiiements. Authority 42 U.S.C. 7401 .-767 1q. Date& December 5, 1993. Felicia Marcus, Regional ,tdminist rater. (FR Doc. 93—30969 Filed 12—17—93: 8:45 am] BlUiNG COOC 5 550-60-F 40 CFR Part 52 (CO 33-1—5013; FRL-4816-21 Clean Air Act Conditional and Umited Approval and Promulgation of PM 10 Impiementatlon Plan for Colorado AGENCY: U.S. Environmental Protection gency (EPA . . crou: Notice of ? roposed rulemaking . National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM 10 ) in the Denver area, including: control measures:.technical analysis (e.g., emission inventory, and attainment) and other Clean Air Act (Act) SIP requirements. The SIP revisions were submitted to satisfy certain Federal requirements for an approvable moderate nonattainment area PM 1 o SIP for Denver and, among other things, contained enforceable control measures and commitments to adopt additional measures. One commitment remains unfulfilled. EPA is requesting comments on the proposed conditional approval of the SEP revisions. EPA will carefully consider timely comment submissions in determining further conditional approval action. EPA also proppses to approve the control measures submitted to date by Colorado to achieve the PM 10 NAAQS (excluding the unfulfilled commitment) for their strengthening effect EPA is proposing to approve these measures for this limited purpose because making them federally enforceable will advance the Clean Air Act’s (Act) NAAQS- related air quality goals. By this - “limited” approval, EPA is not. proposing that these control measures satisfy the specific Act requirement to Implement reasonably available control measures (RACM) (including reasonably available control technology (RAC’fl) in moderate PM 10 nonattainment areas. DATES: Comments on the conditional- approval action proposed in this notice must be received in writing by February 18,1994, and should be labeled as comments addressing the proposed conditional approval. Comments on the limited approval action proposed in this notice must be received in writing by January 19, 1994, and should be labeled as comments addressing the proposed limited approval. ADDRESSES: Comments should be addressed to: Douglas M. Side, Chief, Air Programs Branch. SIP Section- (8ART—AP). Environmenta] Protection Ageriy, Region VU!. 999 18th Street. Suite 500, Denver, Colorado 80202— 2466. Copies of the State s submittals and other information are available for inspection during normal business hours at the following locations: Environmental Protection Agency. Region VU!. Air Programs Branch. 999 16th Street, 6th Floor. South Tower. Denver. Colorado 80202—2466: and Colorado Air Pollution Control Division. 4300 Cherry Creek Dr. South, Denver. Colorado 80222—1530. FOR FURThER INFORMATION CONTAC-r; Callie Videtich at (303) 293—1754. SUPPI.EMENTARY INFORMATION: 1. Background The Denver, Colorado area was designated nonattainment for PM 10 and classified as moderate under sections 107(d)(4)(B) and 188(a) of the Act, upon enactment of the Clean Air Act Amendments of 1990.1 See 56 FR 56694 (Nov. 6, 1991); amid 40 CFR 81.306 (specifying PM 10 nonattainment designation for the Denver metropolitan area). The air quality planning requirements for moderate PM 10 nonattainment areas are set out in part D, subparts land 4. of Title lof the Act.2 The EPA has issued a “General Preamble” describing EPA’s preliminary views on how EPA intends to review SIPs and SIP revisions submitted under Title I of the Act, including those State subrnittals containing moderate PM 10 nonattainment area SIP requirements (see generally 57 FR 13498 (April 15. 1992) and 57 FR 18070 (April 28, 1992)). Because EPA is describing its interpretations here only in broad terms, the reader should refer to the General Preamble for a more detailed discussion of the.interpretations of Title I advanced in this proposal and the supporting rationale. In the conditional approval and limited approval actions on the Colorado moderate PM 10 SIP for the Denver nonattainment area, EPA is proposing to apply its Interpretations considering the specific factual issues presented. Thus, EPA will consider any timely submitted comments before taking final action on these proposals. Those States containing initial moderate PM 10 nonattainment areas (those areas designated nonattaininent under section 107(d)(411B) of the Act) were required to submit, among other things. the following plan provisions by November 15, 1991: 1. Provisions to assure that RACM (including such reductions in emissions from e dsting sources In the area as may be obtained through the adoption, at a ‘The 1990 Amendments to the Clean Air Act made stgndicant changes to the Act. See Pub. L. No. 101—549.104 Slat. 2399. References herein are to the Clean Air Act. as amended (“the Act . The Clean Air Act is codified. as amended. in the U.S. Code at 42 U.S.C 7401. e( seq. 2Subp I contains provisions applicable to 000attasnment areas generally and Subpart 4 Conta ins provistons specsfically applicable to PM ,o nonauainmeol areas. At times, subpart I and subpart 4 overlap or co ,sOlct. EPA has attempted to clarify the relationship among these provisiotu in the “General Preamble” and. as appropriate. i.’% todays notice and supporting information. iUMMARY: EPA proposes conditional 4pproval of the State implementation ptan (SIP) :evisions ubmitt d by Colorado to achieva attainment of the ------- Federal Register / Vol. 58. No. 242 I Monday, December 20. 1993 I Proposed Rules 66327 minimum. of RACT) shall be implemented no later than December 10, 1993; 2. Either a demonstration (including aix quality modeling) that the plan will provide for attainment as expeditiously as practicable but no later than December 31. 1994 or a demonstration that att inment by that date is impracticable; 3. Quantitative milestones which are to be achieved every 3 years and which demonstrate reasonable further progress (RFP) toward attpinment by December 31, 1994; and 4. Provisions to assure that the control requirements applicable to major stationary sources of PM, 0 also apply to major.stationary sources of PM, 0 precursors except where the Administrator determines that such sources do not contribute significantly to PM 10 levels which exceed the NAAQS In the area. See sections 172(c), 188. and 189 of the Act. Some provisions are due at a later data. States with initial moderate PM , o nonattainment areas were required to submit a permit progam for the construction and operation oi new and modifiad major stationary sources of PM, 3 by June 30, 1992 (see section 189(a)). Such States also must submit contingency measures by November 15, 1993 which become effective without further action by the State or EPA, upon a determination by EPA that the area has failed to achieve RFP c to attain the PM , o NAAQS by the applicable statutory deadline. See sections 172(c)(9) and 57 FR 13510—13512 and 13543—13 544. EPA. will address these requirements, as appropriate. In future - actions. U. This Action SectIon 110(k) of the Act sets out provisions governing EPA’s review of SIP subinittals (see 57 FR 13563—13566). Section 110(k)(4) of the Act authorizes EPA to approve a plan revision based on a commitm nt of the State to adopt- specific enforceable measures by a date certain, but not later than one year after the data of approval of the plan revision. Section 110(k)(4) further provides that any such conditional approval shall be treated as a disapproval if the State fails to comply with such commitment. EPA also has authority under sections 11o(k)(3) and 30 1(a) of the Act to approve, for the limited purpose of strengthening the SIP, provisions that do not meet specific Act requirements. but which nevertheless advance the Act’s overarching air quality protection goals. As desaibed below. EPA is proposing to grant a conditional apDroval of Colorado’s SIP submitted for the Denver moderate PM , o nonattainment area on June 7, 1993 and a limited approval of the control measures contained in that SIP and subsequent subrnittals desaibed below. A. EPA’S Proposed SIP Processing 1. Proposed Conditional Approval EPA is proposing to grant conditional approval of the Denver PM , o SIP as adopted by the C .. ado Air Quality Control Commission (AQCCI on May 24. 1993 and submitted by the Governor of Colorado on June 7, 1993. This submittal contained, among other things, several control measures. commitments to adopt additional specific control measures by.a date. certain, and an attainment demonstration based on the adoption of all control measures, including those that are the subject cf commitments. The State made a submittal dated September 3, 1993 in which it fulfilled two commitments (revising Regulations No.4 and No. 16). In addition, the State submitted information on October 20, 1993 which fulfilled another commitment (revising Ragulatloc No. i). EPA is considering these additional submittals in proposing the conditional approval announced today. The State’s submittal demonstrates attainment of the PM,o NAAQS by December 31. 19943 following the adoption and implementation of the commitmants made by the State. At this time, the State’s remaining commitment is to revise permit limitations at two stationary sources (Purina Mills and Electron Corporation). The State has committed to submit these permit revisions to EPA no later than December 1.1993. The unfulfilled commitment impacts, among other things, whether the control measures will provide for timely attainment of the PM 5 0 NAAQS and whether the RACv( (including RAC1I requirement is met There tore. EPA is proposing to conditionally approve Colorado’s submittal for the Denver area. Once the State fulfills its ‘remaining commitment. EPA will determine whether Colorado’s ‘The Clean Air Act calls for attainment as - expediticurly as practicable but no later than December 31. 1994. Section IaB(cXl). Tb. State s submittal sometimes refers to December 31. 1994 as the attainment date and at other times implies 1993 as the attainment date. EPA Interprets that when the State refers to attainment by 199$ It means att n ,t byjanuaty 1.1995. EPA Is proposing to conditionally approve the States demonsuatlon on the bans of the de mm m ii i differential between the two dates and the ct that, at timnt. It refers to the attainment date as December 31. 1994. The State should promptly inform EPA tI EPA has in any cianner misinterpreted the date by which the Stats is protecting attainment in the Denver Mauopolitan 000attaininent arsa. submittals for the Denver area satisfy the applicable PM, 0 SIP requirementc and are fully approvable. EPA announce such action in the Fe Register and provide an opport public comment and, if appropr.ate, may announce such action as an outgrowth of this notice. If EPA finalize. the conditional approval proposed today and the State fails to fulfill its cotnmiunent. this conditional approval will be converted to a disapproval’ (see section l10(k)(4)). As described in further detail in Part 113.4. below, EPA has concerns about the accuracy of the attainment demonstration. These concerns stem from information, contained in a technical appendix to the SIP. suggesting that the contribution from PM, 0 precursorsS was underestimated in the attainment demonstration. Since - the SIP demonstrated attainment of the 150 g/m3 24-licur PM, 0 standard by projecting that the control measures (including the unfulfilled commitment) would reduce worst.case 24-hour ambient PM, 0 leve’s to 149.9 Mg.’rn 3 , virtually any increase in secondary PM ,o levels would result in predicted violations of the standard. Accordingly. EPA is requesting publit comment on Its proposed condO” approval of the SIP. Such cocax must be submitted by February 1994. and should be labeled as comments addressing the pronosed :conditlonal approval. Through this notice. EPA is also requesting the Ctate to submit timely comments by February 18, 1994, addressing the Issue of the contribution of precursors to the attainment demonstration and any othe! information relevant to the approvability of the attainment demonstration. This Issue. is described in more detail in Part 11.3.4. below and in EPA’s Technical Support Document (TSD) that is available for public review at the EPA address indicated above. EPA will carefully consider timely submissions from the State and public ‘This approval w Il become a disapproval upon EPA notiacatien of the State by letter. EPA subsequently will publish a notice in the IoUces Section” of the Fedenl Register announcing suco action and explaining it, implications. U EPA determines that it cannot Issue a anal conditional approval or if the conditional approval Is coavettet to a disapproval, the sanctions clock under section 1 7 9(a) will begin. This clock will begin at iii. time EPA Issues a anal disapproval or at th. w. EPA notifles the State by letter that a conditional approval has been convened to a disapproval. ‘Primary emissions of sulfur dioxide. r oxides, and volatile organic compound converted La the atmospoere toparticu nitiates. and organin compounds that c PM.. levels. These emissions, called P1 precursors. aie also raferrcd to as secondary emissions in this notice. ------- 56328 Federal Register I Vol. 58. No. 242 I Monday. December 20. 1993 / Proposed Rules determining whether it should alize this proposed conditional proval. l.f necessary. EPA will undertake fu.rther technical analysis of this issue. There are different scenarios that could logically result from this proposed conditional approval. EPA may conclude it is appropriate to finalize the proposed conditional approval. Alternatively, if. for example, the State fulfills its remaining commitment (i.e., submits to EPA the revised emission limits for Purina Mills and Electron Corporation) and EPA concludes that the control measures and attpinment demonstration are sufficiently sound. EPA would consider notifying the public, reopening the public comment period, and proposing full approval of the plan. EPA requests public comment on whether EPA would be required to reopen the public comment period before issuing such a final full approval. Another alternative is that EPA may conclude that the attainment demonstration is inaccurate. If so. EPA would not grant the conditional approval and would take - approoriate action, including working with the State to address the deftciency. . Proposed Limited Approval As described above, the appropriateness of finalizing the proposed conditional approval will depend on, among other things. EPA’s conclusions regarding the accuracy of the attainment demonstration after considering public comments, the State’s views, and other relevant analysis. Nevertheless, the SIP submitted to EPA by letter dated June 7, 1993 and the State’s subsequent submittals fulfilling its commitments contain control measures that will at least make significant progress toward the goal of attaining the PM 10 NAAQS. Accordingly, EPA is proposing to approve these control measures for the limited purpose of strengthening the SIP. A final “limited” approval would not mean that EPA has approved the control measures as satisfying the specific Act requirement for the State to implement RACM (including RACI) in moderate PM 10 nonattainznent areas. $ee sections 172(c)(1) and 189(a)(1XC). Rather, a limited approval of these measures by PA would mean that the emission iitatioas and other control measure requir mentz become part of the aopiicnbie implementation plan and are federnl!y enforcea la b EPA. See, e.g.. sect ocs 3Cl2 o, and 113 t,f the Act. EPA may x : such limited approval undt’r52i.ticn 11O(k)(3) of the Act in haht nf t e gener l authority delegated to EPA under section 301(a) of the Act which allow EPA to take actions necessary to Carry out the purposes of the Act. EPA requests comments within January 19, 1994, on this proposed limited approval of the plan. Comments on the proposed limited approval should be dearly labeled as such and should address whether the control measures strengthen the SIP and advance the PM 10 air quality pmtection goal of the Act, not whether the SIP meets specific Act requirements. After considering any timely public comments, EPA may immediately take final action on the proposed limited approval, perhaps even before the public comment period on the proposed conditional approval closes. EPA Is considering proceeding expeditiously with the limited approval because of the importance of adopting those control measures submitted by the State into the federally-enforceable applicable implementation plan for Denver. 3. Summary of Proposed Actions In sum. EPA is proposing two actions on the SIP submittals described in this document and supporting information— a conditional apprcval and a limited approval. EPA is proposing a conditional approval and requesting public and State comment on the proposed conditional approval within February 18. 1994. EPA Is also proposing to grant a limited approval to the control measures submitted to EPA thus far for Denver and requests public comments within January 19, 1994. on this action, EPA proposes to approve these measures and make them federally enforceable because they will make significant notable progress toward the overarching 9M 10 attainment goal of the Act. In finalizing a limited approval. EPA would not be concluding that the measures fully satisfy the specific Act reauirement to implement RA (including RACT) in moderate PM 10 nonattainrnent areas. Finally, as indicated above, these two proposed actions involve different factual and legal determinations. Therefore. EPA has tailored the time provided for public comment to reflect this. For the same reason, after considering any timely public comments, EPA may very well take final actions on thase different proposals in separate notices. S. Anal vsis cf Scate Submission 1. Procedural Background ThG itct ‘equinis States to observe certain procedurai requirements in daveooicg im le’ner.t3t1ofl plans and plan revisiori for submission to EPA. Section 110(a)(2) of the Act prov des that each implementation olan submitted by a State must 1 e adon ted after reasonable notice and publi hearing.s Section 110(1) of tha Act similarly provides that each evlsion to an imp Iernentaticn plan submitted by a State under the Act must be adopted by such State after reasonable notice and public hearing. The EPA also must determine whether a submittal is complete and therefore warrants further EPA review and action (see section 1i0(kllu) and 57 FR 13565). The EPA’s completeness criteria for SIP su’oinittals are set out at 40 ‘R part 51. appendix V (1992). The EPA attempts to make completeness determinations within 60 days cf receiving a submission. However, a submittal is deemed complete by operation of law if a completeness determination is not made by EPA six months after receipt of the submission. After providing reasonable notice, the State of Colorado held a public hearing on May 20, 1993 to entertain public comment on the implementation plan for Denver. Following the public hearing, the plan was adopted by the Stare. On June 7, 1993 the Governor signed and submitted the proposed SIP revision to EPA. The SIP revision was reviewed by EPA to determine completeness shortly after its submittal, in accordance with the completeness criteria set out at 40 CFR part 51, apper.dix V (1992). The submittal was found to be complete on June 15, 1993 and a letter dated June 15, 1993 was forwarded to the Governor indicating the completeness of the submittal and the next steps to be taken in the review orocess. As previously noted, the submittal contained certain commitments to adopt specific enforceable measures by a date certain in the future. Most of these commitments have been fulfilled and submitted to EPA. After providing reasonable notice, the State of Colorado held public hearings cn August 20. 1992 end June 24, 1993 to entertain public comments on revisions to Regulation No.4 regulating the sale of new woodstoves and the use of certain woodburning appliances during high pollution days. On August 15. 1991 and June 24, 1993 the State heard public comments on the originally adopted. and revisions to, Regulation No. 16 concerning material specifications for. use of and cleanup of street sandin3 materials. On Auust 19, 1993 a public haaring was held to receive comments in aadi cn. secno2 17:(c)(?) of the ?Ict reauires ?at 1 jlan o O i3*O i (or noeauIaii ent area, meet ‘e app ac b!a pro’ILUO!U 01 ecuon I 1O(aJ(2J. ------- Federal Register I VoL 58. No. 242_1_Monday, December 2 , 1993 / Pcpose i R i!es 663: on Regulation No. 1 which contains. emissions limits at three Public Service Company power plants and restricts the use oi oil as a back-up fueL Following the public hearings. Regulations No. 4. No. 16 and No.1 were adopted by the State. On September 3. 1993 the Governor sig red and submitted the revisions for Regulations No.4 and No. 16. On October 20, 1993 the Governor s gned and submittad the Regulation No. I revisions to EPA. On November 15. 1993 EPA informed the Governor that the two submittals. to revise Regulations No.1. No.4 and No.16 were found to be administratively and technically ccmplete. The uni ilfilled commitment involves control measures that bear on whether Colorado’s PM 10 submittals for the Denver area will meet, among other things. the RAO4 (including HACT) requirement and the requirement to provide for timely attainment of the PM 10 NAAQS in the area (or to demonstrate that the moderate area cannot practicably attain by the applicable statutory deadline and therefore should be reclassified as serious). Accordingly. as described in Part IL A. above, EPA proposes to conditionally approve the Colorado PM 10 SIP uhmir 1 ais for Denver pursuant to section .1o(kK4) of the Act and invites public comment on the action.’ Finally, since the Denver PM 10 SIP requirements due November 15, 1S91 were nct submitted by that data, as required by section 189(a)(2)(A) of the Act. EPA made a ending, pursuant to section 179 of the Act, that the State failed to submit the SIP and so notified the Governor in a letter dated December 15. 1991 (see 57 FR 1S9C6(May 8. 1992)). As ncted, the Denver PM 10 SIP was submitted on June 7, 1993. EPA found the subruittalcoinplete pursuant to section 1IC(kll l) oithe Act and notified the G.,vecicr aaordiaglyin a letter dated June 15. 3993. This couraleteness det . ’ rminnHon the &ate’s de&iency (I.e.. its ailtne to submit a SiP for the area) and,. therefore. stopped the sanctions cie under section 179 of the Act 2. Accurate Emissions Inven 3ry Section 172(cl(3) ci the Act requires that nonattainment pla.i include a comnrehensjve. accurate, current inventory of actual emissions from all sources of relevant pollutants in the nonattainmer.t area 5 . The emissions inventory also should. induda a comprehensive. accurate, and current inventory of allowable emissions in the area (sail. e.g., section 110(a)(2)(KD. 2ecausa the submission of such inventories is a necessary adjunct of an area’s etti ir.r’ect demonstration (or demonstration that the area car ’ nt practicably attain), the eirJssions in7entcries must be received with the SIP revision cont th ’ing the demonstration (see 57 FR 13539). Colorado submitted an emissions inventory for base year 1989 (based on actual emissions) and an emissions inventorj forats inmeut year 1995’ (based on allowable emissions). The winter 1989 inventory is intended to recresent all souras of primary PM 10 . as wall as all SCu r cas of the PM 10 precursors (citro:en osidas and sulfur dioside (NOx an 5O j). The ;recurscr emimi one are imoortarim because filter - analyses erfcred in conjunction with chemical mass halance modeling indicatad that a si ’t i,ortian (33%) of the PM 10 monitored consisted oisecmidary ammoni sulfate and nitrate. The winter time 1989 base year inventor7 identified reentrained road dust (44 E), wood burning (18%) and street sanding (8.5%) as the prinripal contributors to pthnary PM 10 . Other primary PMio sources include unpaved road dust contributing 7% and pcint sources contributing 4% oi the total k M 10 . The secnnr i y emissions, 35% of total PM 10 . are divided between NO,c and SOS. For NOx. the stationary sources contribute 44% of the total. with vehicle exhaust at 35% and natural gas from residential and commercial usages at 13.5%. The prime sources of SO 2 include stationary sources with 93% of the total SO ernissiansand vehicle exhaust with 5%. For further details see the TSD which is available for public review at the address indicated at the beginning, of this notice. 3. RAQV( (inchthing RACE) and Control JaR. ’.55 noted, the initial moderate PM 10 nocattRinn’ect areas must submit provisions to assure that P .AC 4 (including RACT) are implemented no later than December 10. 1993 (see sections 172(cl(1} and 189(a)(1)(Cfl. The General Preamble contains a detailad discussion of EPA’s icteroretation of RACA (including RACT) (see 57 FR 13539—13545 and 13560—13561). Four source categories were identified as the major contributors to the PM 10 nonattainment problem in Denver. The followrng Table identifies these scurces) source categories, their respective control measures and associated emissions reductions expemad to be achieved in the Central Business District (CBD). and the . ifective dates of these measures. Mazy of the cuntrol measures implemented in the CED are also implemented area-wide as indlca’ed in the TSD. Gaaei’ally. the CBD is where excaadances ci the standard have occurred an& therefore. an. important focus for the imDlementation of some oz the control meajures. Note that comparing the 1989 base year q emissions inventory to the 1 3I a 2i”n63t year allowable emis L , inventory rtha entire ncnatti .in nent area there is actually an increase in PM 1 o ‘ ions. This is due to the fact that the suburban area of Denver has grown over the past several years. Nevertheless, the State demonstrates timely a T1ment area-wide, ncm r ing adoption of the unfulfilled rnmrn tmer To show timely et ainment of the standar& woodburzixig and affective street sanding and sweeping controls had to be develoced. As a result. of the controls, as well as the other contro [ strategies (described further in the TS] the CBD shows a reduction in P M 1 0 emissions from base year 1989 to the aWth1TT ent year 1995, as well as demonstrates timely athi nm nt of the standard. DENVER CENTRAL BUSINESS DISTRICT (CBD) PM 10 Sip Control Strategies Scurce C nhroI PMT, Ø flI I Eifectt Reiiden Wooc* Burning. (These centzcf rnmsures Htçti po on day wood burning res icticn program .._._ E*ssflc ore imptemented area-wtde.). (and revtsIons). ( I3t ‘A.i deac bed pr , ’iouslv, EPA aho ç?oeoaea a ! ited ac .. .-. . ,ioi the ?M,oco ,iuol me w su uad to date (or Deever tci as U atoa pi rpoa. of stren thsnuig the SIP. ‘The L Is ed nIdaDcw on PV-t0e iiutcns lo s &ort nor t (Os ol the Cow Air Act A n o ,ii au i the Ictm ci the 198 PM-;O SIP DeVeJCF Oant provided to this docueo aopear3 w ce coi rev ,,ed Act. ‘See Eco ots 3. ------- GS330 Federal Register / Vol. 58. No. 242 / Monday, December 20, 1993 / Proposed Rules DENvER CENTRAL BUSINESS DIsTRICT (CBD) PM 10 Sip Control Strategies—Continued Source PM 10 emissions reduc on (tons/yr) E Jtec we date Street Sandir.g and Sweeping of Paved Streets. (Most of these control measures are implemented area- Requirements that new or remodoled construc on use a new dewier wood burning approach. Conversion program from exiseng wood burning to cleaner burning technology. New stove and llreplaca Insert cer flcatlon .......__....— Matenai spedicatlons for street sanding matenal ...... .. . . . .. . ..._.. ....-..-....._. . .. 111193. Fall 1S92. 111193. 8I91. ....... . . . ...... . . .. . ... 146.7 ._.. . ... ....... wide.). - . t.ocal management plans. Enhanced street sanding and sweeping In Central Denver and the 1-25 Corridor. ...._.... ._..._ 1111/93. Stationary Scurcas Mobile Sources. (fl.ese control measures are lmple- merited area-wide.). Ifror point sources.. ..._. _. . Rasmcmnsonoduse’ . _.. ...... . .......... . ._.___... . ... Regulation limits for preoursor emissions ....._..__.. Ught duty vehicle, light duty tiucic NO 1 standards...... 129.1 0 (b) (D) ..... . .. . ....... . 12I1I93. 1111193. 111l95c. 12(10193. . Urban bus particulate standards . Diesel fuel sulfur Ilniftaeons . MAC light rail rme Exjress bus service from Denver to new Denver International Airport CommuterCheck program • . ECOPass CU Student bus pass Total reducticn - .. . .. _ — +6O 173.6’ t is with the RACM (in uding RACT) provisions of the SIP, these control measuras are dascnbed further In the TSD. .n order to prevent growth in regional scale precursor emissions (NO 1 and EOi) from ottsemr.g the benefits of gmisslon reduction measures in the C3D. allowable emission rates for stationary source PMis preairsor emissions will be limited through fegtsatorv c li use restrictions and precursor flmtta cns at three power plants. These measures are discussed In Part It. 3.5.. arid In greater detail in me T O to mis cocument. cCcritrols become enforceable measures on October 30, 1933. However, the controls are being implemented for maintenance of the NMOS. and wili become eftecave on January 1. 1995. dEmissions from mobile sources Increase from 1989 to 139$. However, If the mcblle source controls tmplew.enled as a result of the SIP had not been made the projected Increases would have been significantly hlghar ‘The “Total Reducton” shown toes riot equal me emissicn reductions and Increases for the SiP ’s credited control strategies depIcted In the Table above. The “Total Reducticns indudes emission Increases and deceases Irom a total di 18 source categories not all of which are rep- resented In the SiP’s control strategies decicted in the Table aeove. The total percent reduceon from eli 1119 sources within the caD, including SIP reduction strategies. Is 6.1% (173.6 (onstyear) from the 1989 (actuals) base year to the 1335 (allowaoles) attainment year. A more detailed discussion of ‘the individual source contributions and their associated control measures (including available control technology) can be found in the TSD. As indicated. the State is in the process of revising emission limits for two sources and has committed to submit those revisions to EPA no later than Deceniber 1.1993. EPA has reviewed the State’s documentation and proposes to conclude that it adequately justifies the control measures that will be implemented. Therefore, by this document. E’rt s proposing to conditionally approve the Denver PM 10 plan as meeting the RAC4 (including CT) requirement. Sea sec.ion D(k)(4) of the Act. Howtr.rer, EPA has ne concerns about hather the nLrol neeswes containod in and co.nznitted to in the !P will provide for rneiy ‘inemment ee Pert IL B. 4.. below). W i:la EP.Vs cu nt judgernent is to propose to ceterx ne that implementation of Colorado’s PM 10 nonatt inrnent plan for Denver, Including the unfulfilled commitment. will result in the att*in ant of the PM 10 NAAQS by December 31. 1994, EPA will give careful cânsideration to any comments bearing on this proposed determination. In addition, as desaibed Pert IL A. 2. above. EPA is proposing a limited approval of the control measures submitted.by the State of Colorado. excluding the outstanding revisions of the permit limits at the two stationary sources. EPA is proposing to grant a limited rpproval to the submitted ccntrol inaasures (with the above- mentioned exclusions) because they szrangthea the evisting SIP and epresant a significant t.nprovement over what is cu.rrec tiy in tho SIP. As indicated above. EPA is not proposing to fully ap?rove these coc ol measures under sect ion liOikWl) s atisfying the speciflc requirement to implement RACM (including RACT) in moderate PM 1 e nonattainment areas. 4. Demonstration As noted, the initial moderate PM, o nonattRinrnent areas must submit a demonstration (including air ouality modeling) showing that the plan will provide for att nment as exueditiously as practicable but no later than December 31, 1994 (see section 189(a)(1)(B) of the Act). Alternatively, the State must show that attainment by December 31, 1994 is impracticable. Colorado conducted an attainment demonstration using dispersion inoduling for primary PM 10 end proportional rollback modeling analysis for secondary particulate concentrations for tn t , Denver area. This demonstration iniflcates that the NAAQS far PM 1 0 will be azza ned in enver by D c*rinber 31. 1994 at a modeled conceatr tion of .49.9 :..g!mi a.sd ‘viii be matntained in future vegrs. Durmn; review or t”cbiical tnformi.tion suppcrticg the SIP. EPA ------- Federal Resister I Vol. 5a, No. 242 / ivforidau, December 20. 1993 I Popasçd Ru!es 6633i examined information e}aiingta the contribution of PM 10 p usors to overall P%f, concentrations which caused concern about the accuracy of the SIP’s attainment demonstration. See the information presented later in this Part for further information about this issue. ) The 24-hour PM 10 NAAQS is 150 cnicaograms/ctzbic meter (pg/m3). and the standard is attained when the expected number of days per calendar year with a 24-hour average concentration above 150 pg/rn) is equal to or less than one (see 40 CFR 50.6). The EPA recognizes that the margin between the attainment demonstration (149.9 jrghn3} end the 24-hour standard (150 pg/rn)) is narrow. The standard will be achieved only if the State adheres strictly to the impleixzentation of u l measures required by the SIP. EPA’s concern about this narrow cta.-gin is underscored by information potentially bearing on the accuracy of the artainment demonstration. During review of the technical support documentation of the SIP, EPA examined information contained in Volume 14. ApvendixB which caused concern about the accuracy of the SIPS 149.9 pg/rn) attainment demonstration. The information includes an analysis of filter data and the conclusions presented regarding those data. The filter data were collected during 6 days of PM 10 concentrations ahove 220 pg/rn) (six of the nine samples exceeded the 24-hour 250 pg’m3 standard). The filters were collected in February 1986, December1981, December1992 and January 1993. The State conducted an analysis o(the filters, known as a chemical mass balance analysis. which involves ex miT rTg and estimating, from the monitoring filters, the contribution of various sources with respect to the recorded PM 10 levels. Statistical analysis of the filter data. presented in Volume 14. appendix B. suggests that the contribution from PM 10 “precursors” (ie.. nitrogen a,ddes and sulfur dioxides) l x x the base year winter season may be 5.2 jig/rn 3 greater than onginaily calculated. When this value is proportioned to the atr inn,ent year. the value of the precursor contribution to total PM , o is calculated as 9 pg/rn) greater than the precursor contribution in the attainment demonstratf on. Since the attainment demonstration provided with the SIP is 249.9 pg/rn). virtually any increase in prec’.n ’sor PM ,o levels would result in predicted violations of the standard. The methods that should be employed to analyze the filter data and how to consider such information in light of other available data involve complex technical judgments. Because of this. the EPA. in this notice, is encouraging the State to submit timely comments addressing the issue of the precursor contnbution to the atmicment demonstration. and any other information relevant to the accuracy of the attainment demonstration. As indicated in Part Ii. A. above, EPA will determine whether to finalize the proposed conditional apuroval or take alternative action after cons dering. among other things. the information that the State and public submit relating to the precursor issue and the accuracy of the attainment demonstration. Finally, because there have been no exceedances of the annual average PMio standard in the Denver metro area, an attainment analysis of the anunal standard was not performed. EPA proposes to find that the controls adopted to protect the 24-hour standard are su c1ent to maintain the annual standard. Th control strategy used to achieve the 24-hour standard is suznmarxzed in the part above titled “RAC f (including RACE) and Other Control Measures.” For a more detailed desaiction of the attaimant demonstration and the control strategy. see the TSD acccmpmying this document 5. PM 10 Precursors The control requirements which are applicable to major stationary sources of PM , o, also apply to major stationary sources of PM , e precursors unless EPA determines such sources do not contribute significantly to P M , o levels in excess of the NAAQS in that area (see section 189(e) of the Act). The General Preamble contains guidance addressing how EPA intends to Implement section 189(e) (57 FR 13539—13540 and 13541— 13542). An analysis of air quality and emissions data for the Denver nonattainment area demonstrates that exceedances of the PM ,o NAAQS are attributable both to direct particulate matter emissions from wood burning. street sanding. street sweeping. and other mobile sources, and to precursor emissions from stationary sources. Further, the dispersion and chemical mass balance modeling for base year 1989 identified precursor emissions of NO, and SO as contributing 35% to the ambient PM ,o concentration. (Percentage contribution from reconciliation results of the two models on the highest monitored day. December 17, 1987. at the Welby site.) Consequently. major stationary sources of these precursors are required to cemply with all control requirements of the PM, 0 nonattainment area plan which apply to major stationary sources of FM , o (i.e. RACT or iaderata areas. best availaole control tech.aology (BACI7 far serious areas, and Ne Source Review C’ISRI permitting requirements). Mzndicatad above, EPA propo condicionaily approve the State’s submittal as meeting RAC’ f (including RACt). EPA’s proposed conditicaal approval of RACI’ extends to those control recui.-ements apoicable to the major stationary sources of PM , o precursors. Specificaily, EPA proposes to find that the emission limits and commitments mentioned above are reasonable and conditionally approvable because they provide for timely attainment of the PM , o NAAQS. Additionally, these measures help ensure maintenance of the NAAQS. The State is currently in the process of developing a NSR program for new and modified major stationary sources of PM , o precursors. This requirement was due independently of the specific PM, o requirements addressed in this document EPA will act on the NSR requirement in a separate notice. Furthardiscussion of the data and analyses addressing the contribution of precursor sources in this area is contained in the TSD accompanying this document. 6. Quantitative Milestones and Reasonable Further Progress (RE The PM 1 ,, nonattainmexit area pieu revisions demonstrating attainment must contain quantitative milestones which are to be achieved every three years until the area is redesignated attainment and which demonstrate RFP, as defined in section 171( 1), toward attainment by December 31. 1994 (see section 189(c) of the Act). RFP Is defined In section 171(1) as such annual incremental reductions in emissions of the relevant air pollutant as are required by part D ormay reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date. In considering the quantitative milestones and RFP provisions for this initial moderate area, EPA has reviewed the act3inment demonstration for the area to determine the nature of any milestones necessary to ensure timely att iinment and whether annual incremental reductions should be required in order to ensure at? nment of the P 1 4 , 0 NAAQS by December 31. 1994 (see section 171(1) of the Act). EPA is proposing to conditionally approve the PM, 3 SIP for the Denver — nonat? fnment area as demonsti at?2lninent by December 31. 19E is also proposing to condidonaliy approve the submittal as satisfying the ------- E6332 Federal Re ster_I Vol. 58, No. 242 / Monday. December 20. 1993 1 Proposed Rules ial quantitative niilestone uirernentto and proposes to ditiocally find that the emissions reductions prolected meet RFP. Further, to demonstrate continued maintenance of the standard, the State has adopted new allowable emission limitations for three Public Service Company sources—Cherokee. Arapahoe and Valmont. (In the original June 7, 1993 SIP submittal, the Governor committed to adopt and submit these limits by October 30. 1993. The adopted limits ware submitted to EPA on October 20, 1993.) The effective date of the new limits is January 1. 1995. These limits will further reduce precursor emissions in order to assure on-going maintenance of the NAAQS through 1997. The assurance that the initial milestone and reasonable further progress will be achieved is based upon the State adopting and Implementing the particular control measures contained in the SIP which are addressed in Part 11.8.3. “RACM (including RACT) and Other Control Measures” of this document. However. this includes consideration of a iminitment which has not yet been et or submitted to EPA as enforceable ission limits through permits or gu.lation revisions (i.e.. permit limits at Purina Mills and Electron Corporation). Conseçiently, EPA is conditionally approving these control measures as meeting RAQvf (including RACI’) and thus is also proposing to conditionally approve the SIP as meeting the initial milestone and reasonable further progress. 7. Enforceability Issues All measures and other eleni nts in the SIP must be enforceable by the State and EPA (see sections 172(cX6) and l10(a (2)(A) of the Act and 57 FR 13556). The EPA iteria addressing the enforceability of SIPs and SIP revisions vere stated in a September 23. 1987 memorandum (with attachments) from J. Craig Potter, Assistant Ariminictrator for Air and Radiation, et aL (see 57 FR 13541). Nonattainmont area plAn provisions must also contain a program that provides for enforcement of the control measures and other elements in the SIP (see section 110(a)(2)(C ) of the Act). The State of Colorado has a program I iat will ensure that the measures .aTh. e iuic reduction proçeoi made pnorto e aitaic a u date 01 Dcceiber :1. i594 (only 46 W3 beyond the NaF WinZ 5. 1994 1S3tO0O CaiJi will lausfy the fint aes n. req . uemant (57 F 133391. Tha di jm Ls Uznin diff.rent .1 cuk s i adinutrativ ,v mmc uc .iUe to reqwre separal. r.L1 .3to0 . end al a nmo t datnousi,auoca. contained in the SIP are adequately enforced. In addition to the specific authority cited under desciprions of the control measures, the State’s ALtorney General has provided an opinion citing the authorities contained in the Colorado Air Pollution Prevention and Control Act which provide the State with the authority to enforce state air regulations against local entities. and enforce local air poilution requirements when local entities fail to do so. This is consistent with section 110(a)(2)(E) of the Act. The Air Pollution Control Division (APW) has the authority to implement and enforce all emission limitations and control measures adopted by the AQCC. as provided for in C.B.S. 25-7-111. In addition. C.R.S. 25—7—115 provides that the APCD shall enforce compliance with the emission control regulations of the AQCC, the requirements of the SIP, and the requirements of any permit Civil penalties of up to S15,000 per day per violation are provided for in C.B.S. 25— 7—122 for any person in violation of these requirements, and aixninal penalties are provided for in C.B.S. 25— 7—122.1. Thus, the APCD has adequate enforcement capabilities to ensure compliance with the Denver PM o SIP and the State-wide regulations. The particular control measures contained in the SIP submittals apply to the types of activities identified in Part U. 8.3. and the discussion following. including: residential wood burning; sanding and sweeping of paved roads; mobile sources; and reductions of secondary particulates from major stationary sources. As explained in the following discussion, the con ol measures appear to be adequately enforceable. Accordingly. EPA is proposing to conditionally approve the control measures and also grant limited approval of the measures to strengthen the federally approt ed SIP. However. EPA will form a judgment about the enforceability of the control measures to be submitted in fulfillment of the State’s commi ent when EPA receives and reviews those measures. The TSD contains further information about enforceability requirements. including a discussion of the personnel and funding intended to support effective implementation of the control measures. a. Residentioi Wood Burning Cont.-ols. 1. High Pollution Day Wood Burning Resthctzcns: Regulation No.4 .equizes the APCI) to implement rnd enforce wood burr.tng restrictions in areas without existing local enforceable ordinances. To ensure proper enforcement, the AP contracts with local health departments to execute the en orcerncat provisions oi the Regulation. In communities where local ordinances regulating wood burning were in place prior to January 1. 1990. the local government is responsible for enforcement of its ordinance, induding issuing fines, penalties, warnings, and conducting inspections. (Local ordinances cover approximately 85% of the Denver metro area.) The State has authority to enforce local ordinances, in place prior to January 1. 1990. if local governments fail to do so. 2. Clean Wood Burning Technology for New or Réincdeled Construction: Beginning on January 1. 1993 state law requires that new or remodeled fireplaces in new or remodeled structures must be gas appliances. electric devices, or low emissions fireplace inserts meeting the EPA Phase U New Source Performance Standard (NSPS) or State adopted Phase III - requirements. (EPA’s Phase U and Colorado’s Phase 111 requirements are equivalent.) Under the law, the fireplace restrictions must be adopted as building code revisions by each local government and be enforced through the normal code enforcement programs of each community. This requirement became effective on January 1. 1993. 3. Encourage Conversion of Existing Wood Burning Units to Cleaner Burning Technology: Legislation passed in 1992 required that the lead air quality planning organization (the Regional Aix Quality Council) develop and implement a flnan&! Incentive program to provide subsidies toward the purchase of new cleaner technologies. Additionally, retailers must report the number of purchases of certified stoves or inserts, and gas or electric fireplaces to the Colorado Department of Revenue and submit a SI fee (or each certification of conversion. Under the program, the Department of Revenue is responsible for tracking conversions to cleazer technologies, reported by retailers, and reporting the status of the conversion program to the AQCC. 4. New Stove and Fireplace Insert Certification: State law prohibits the resale and/or installation of any uncertified wood burning device in the metro Denver area after January 1. 1993. The law is enforced through the building code provisions of the various local governments within the Den er ares. b. Street Sanding and Cleaning Controls. 1, Material Specifications for Street Sanding Materiali Regulation No. 6 sets specifications for fines and durability of new and recycled sanding materials, and reauires that sand providers and users conduct testir.g and recort the quality of sanding materials and amounts used during the winter ------- Federal Register I Vol. 58. No. 242 / Monday, December 20, 1993 / Proposed Rules 65333 season to the APCD. The Regulation is enforced through authority provided to the State by statute. 2. Local Management Plans: Regulation No. 16 requires State and local agencies that apply Street sand to develop and submit a plan for reducng their use of sand by 20% from 1989 base year levels. The agencies are required to adopt ordinances or resolutions to support the plans, to submit the plans by September 30. 1993. and to implement the plans by November 1. 1993. The agencies are also required to submit annual reports to the AP documenting the reductions in sand use achieved through implementation of the plans. The Regulation is enforced through authority provided to the State by statute. 3. Enhanced Street Sanding and Sweeping Practices in Central Denver and the Interstate 25 Corridor Regulation No. 16 requires Denver to implement a management plan providing for a 30% reduction in sand use. In addition, the SIP requires Denver to sweep all streets in the CBD within four days of a sanding event. Because of modeled violations of the NAAQS in the 1—25 corridor south of the CBD, the SIP requires the Colorado Department of Transportation (CDOT) to sweep 1—25 and its ramps within four days of a sanding event. The Regulation is enforced through authority provided to the State by statute. c. Other Mobile Source Emission Reduction Measures. The SIP contains a varety of mobile source control measures included in the 1990 Clean Air Act Amendments in addition to the Street sanding and swee , ing controls. These mobile source measures include the new light.duty vehicle, light.duty truck NO standards, urban bus particulate standards, and diesel fuel sulfur limitations. Particulate emission reductions are also incoroorated for two existing State programs, the diesel inspection and maintenance program and the oxygenated fuels program (Regulations 12 and 13). These programs were developed independently from the PM 10 SIP but are included because of their particulate matter reduction beneflt. The Act required programs are enforced by the federal government while the State regulations are enforced by the APCD. The SIP also includes a number of transportation control measures to slow growth in vehicle miles travelled. These are not measures that were developed specifically for the SIP, but measures that are already planned or underway in the Denver area and accounted for in the mobile source modeling for the attainment year. These measures axe assumed to be implemented by 1995 and have been included in the transportation modeling supporung the attainment and maintenance demonstrations. The Regional Transportation District (RTD) is imolementing these measures through its Transit Development Plan which has been adopted by the RTD Board of Directors. - The measures for which the SIP takes credit within th ’e transportation modeling include the MAC Light Rail Line and additional express bus service to the new Denver International Airport. Also, several programs aimed at - attracting new ridership are being implemented. These new programs include the CommutetCheck program. ECOPass, and the CU Student Pass Program. Through the Implementation of these and other marketing programs. transit ridership is expected to increase by 20% between 1989 and 1995. A complete desa-iption of the measures included In the SIP Is found In Section VIII of the SIP. The Act requires that all federally funded tra isportaUon measures be included in a conforming Regional Transportation Plan and Transportation Improvement Program (TIP). Because the implementation of these measures must conform to the SW. any changes to the federally funded measures included in the attainment demonstration must go through a coniorznity analysis before they can be implemented. The e dsting TIP has been found to conform with the SIP. Currently, the local metropolitan pl rnning organization is revising its Regional Transportation Plan as required by the Intermodel Surface Transportation Efficiency Act. The conforming transportation plan was adopted in October 1993. d. Stationaiy Source Measures. To control emissions from stationary sources. Colorado (APCD) enforces 1oth permit limitations and regulations. through authority provided under State statute. The June 7, 1993 SIP submittal contains commitments for the State to revise permit limitations at two stationary sources and to revise Regulation No. I to control emissions at stationary sources. The Governor submitted the revisions to Regulation No. 1 on October 20, 1993. The commitment to revise permit limitations at two stationary sources must still be fulfilled. The State is scheduled to fulfill the commitment by December 1. 1993. See the discussion under Part II. D. contained i the TSD for more information on the permit and regulation revisions at stationary sources. 8. Contingency Measures’ /‘s provided in section 172(c)(g) of the Act, all moderate nonattainment area SiPs that demonstrate attainment include contingency measures (sec generally 57 FR 13510—13512 and 13543—13544). These measures must be submitted by November 15, 2993 for the initial moderate nonattainment areas. Contingency measures should consist of other available measures that are not part of the area’s control strategy. These measures must take effect without further action by the State or EPA, upon a determination by EPA that the area has failed to make RFP or attain the PM 10 NAAQS by the applicable statutory deadline. Colorado chose to submit the contingency measures separate from the PM 10 SIP requirements addressed in this document. EPA will take separate action on the contingency measures when they are submitted by the State or as otherwise appropriate. III. Request for Public Comments The EPA is requesting comments on all aspects of this proposal. As indicated elsewhere in this document, EPA will consider any comments received by February 18, 1994. on the appropriateness of the proposed conditional approval action. in additj -— EPA will consider any comments received by January 19, 1994. on proposed limited approval of the c measures. Comments should be lab vu in a manner clearly indicating whether they address the conditional approval proposed, limited approval proposed or both proposals. Any combined comments addressing both proposed actions must be received by January 19. 1994, (i.e., the close of the comment period on the proposed limited approval). IV. Executive Order 12866 The 0MB has exempted this rule from the requirements of section 6 of Executive Order 12866. V. Regulatory Flexibility Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq.. EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 u.s.c 603 and 604. Alternatively. EPA may certify that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not for- profit enterprises, and government entities with jurisdiction over ponulations of less than 50,000. lP approvals under sections 1 301, and subchapter!, part D of the cz ------- “ 66334 Federal Register / Vol 58. No. 242 I Monday, December 20 , 1993 I Proposed Rules :onditional SIP approvals wider n 110 and subchapter I. part D of LCt do not eate any new ...4ulrements. but simply approve requirements that the State is already imoosing. Therefore, because the Federal SIP-approval does not impose any new requirements, I certify that it does not have a significant impact on small entities affected. Moreover due to the nature of the Act, preparation of a regulatorj flexibility analysis would constitute federal inquiry into the economic r asocableness of stare action. The Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. E.P.A.. 427 U.s. 246,256—66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2). If the conditional approval is converted to a disapproval under section 110(k)(4). the disapproval will not affect any existing state requirements applicable to small. entities. Federal disapproval of the State submittal does not affect its state- enforceability. Moreover, EPA’s disapproval of the submittal does not impose a new federal requirement Therefore, EPA certifies that such .a approval action would not have a Lficant impact on a substantial ber of small entitles because it - Jd not remove existing state requirements nor substitute a new federal requirement. List of Subjects in 40 CFR Part 52 Environmental protection. Air pollution control, Hydrocarbons, ergovemmental relations. Nitrogen dioxide. Particulate matter, Reporting a d recordkeeping requirements. Sulfur thoxide, and Volatile organic compounds. Authority: 42 U.S.C. 7401-7671q. Dated: December 2, 1993. Jack W.McGraw, . ‘tcnng Regional Administrator. (FR Dcc. 93—30970 Filed 12—17—93; 8:45 arel nw c coca eso-so-p ‘a CFR Parts 52 and 81 (CHOG-1-GCSS, OHO1-t—5C48, 0H32—1— 5775; FRL-4813-43 Approval of Maintenance Plan and Daslgnatk.n of Areas for Air Cuality Planning Purposes; Ohio ‘Icy; United States Environmental ection Agency (USEPA). o;i: Proposed rule. ‘J lIAP•I: ThiZ action respouds to a r . cuc•st from the State of Ohio to :edesigna:e Columbiana. Jaiferscn and Preble Counties. Ohio to attainment for ozone based on supporting monitoring data the State has submitted. Under the Clean Air Act (CAA). area designations can be changed if sufficient data is available to warrant such change. USEPA is proposing to disapprove the redesignation requests for these areas as revisions to Ohio’s State Implementation Plan (SIP) for ozone. The redesignations are being disapproved because the areas lack maintenance plans and adequate demonstrations that the improvement in air quality was due to permanent and enforceable emissions reductions. [ a addfflon USEPA must approve corrections of the enforceability deficiencies in the volatile organic compound (VOC) reasonably available control technology (RACT) rules before these areas can be redesignated to attainment for ozone. DATES; Comments on this requested’ redesignation and SIP revision, and on the proposed USEPA action must be received by January 19, 1994. ACDRESSES: Written comments should be sent to: William I.. MacDowell, Chief. Regulation Development Section. Air Enforcement Branch (AE—17J3, U.S. Environmental Protection Agency. 77 West Jackson Boulevard. Chicago, Illinois. 60604. U.S. Environmental Protection Agency, Region 5. Air and Radiation Division. 77 West Jackson Boulevard. Chicago. illinois, 60604. FOR FURThER INFORMATION CONTACT’. Angela Lee, Regulation Development Section,Air Enforcement Branch (AE- 17J), U.S. Environmental Protection Agency. 77 West Jackson Boulevard, Region 5, Chicago, Illinois, 60604,’ (312) 353—5142. SUPPLEMENTARY DIPORMATTON: Under section 107(d) of the pre.amended Clean Air Act (CAA), the United States Environmental Protection Agency (USEPA) promulgated the ozone attainment status for each area of every State. For Ohio. USEPA designated Columbiana, Jefferson and Preble Counties as nonattainment areas for ozone. See 43 FR 8962 March 3, 1973), and 43 FR’ 45993 (October 5, 1978). O November 15. 1990. the Clean Air Act Amendments of 1990 (CAAA) were enacted. Public Law No. 101—549, 104 Stat. 2399. codified at 42 U.S C 7401- 767lq. Pursuant to section 107(dX4)(A) of the amended Act, the Preble County Area. Steubenvi ie Area. and Columbiana County Ama in Ohio retained their .esignacions of r.onat:ainmect for ozo:e as a result of monitored violatior.s of the ozcne National Ambient Air Quality Stancard (NAAQS) dunn 3 1988 and 1989. The Steubenville Area ccns;sts of Jefferson County which is a trns;tjoual nonat?airlment area for ozone. Preble’ County is also a transitional nonattainment area for ozone. Columbiana County is an incomplete data nonattainment area for ozone. See 56 FR 56694 (November 6. 1991). The Ohio Environmental Protection Agency (OEPA) requested that Preble County be redesignated to attainment in a letter to USEPA dated May 23. 1986. The CEPA requested the redesignation of Jefferson and Columbiana Counties to attainment in a letter to USEPA dated July 14. 1986. USEPA has provided guidance on the redesignation process as set forth in section 107(d)(33(E) of the amended Act in two memoranda. The first, dated September 4, 1992, was issued by John Calcagni. Director. Air Quality Management Division, Sub ject Procedures for Processing Requests to Redesignate Areas to Attainment (Redesignstioa Memorandum). The second, dated September 17. 1993. was signed by Michael Shapiro, Acting Assistant Adminictrator for Air and Radiation, Subject State’ Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or after November15, 1992. These guidance memoranda were used in the evaluation of Ohio’s submittaL’ After careful review of the request and supporting data, USEPA has concLuded that Ohio has not demonsuated that its request meets all of the requirements for redesignatlon pursuant to CAA section 107(d)(3)(E). Section 107(d)(3)(E) requires that USEPA make the determination that certain criteria have been met before redesignating a nonattainment. area to attainment The reaui.red criteria are discussed In the- following sections. Section 107(d)(3)(EJ(i). USEPA Must Determine That the Area Has Attained the National Ambient Air Quality Standard (NAAQS) Consistent with the requirements of 40 CFR 50.9. the most recent three years of ozone air quality monitoring date. 1990—1992, for Preble. Jefferson and Stark Counties do not show any violations of the czone NAAQS during that period. Since there are no monitors in Coluir.biana County. the mo itoring data for Stark County. which is located upwir.d of Columbiana County. is used in the eva!uation of the air quality in Co uinbiana County. ------- 11998 Federal Register I Vol. 59, No. 157 I Tuesday. August 16, 1994 / Proposed Rules A 1 ’ A review of the environmental effect of the proposed measurement rule changes concludes that the proposed change W I 1 1 not have a significatit effect on the quality of the human environment. An environmental impact statement is not required under the National Environmental Policy Act of 1969. Finally, the Administrator of the Panama Canal Commission certifies that these proposed regulations meet the applicable standards provided in sections 2(a) and 2(b)(2) of Executive Order No. 12778. List of Subjects In 35 Pail 303 Advance reservations. Booking system. Order of transit. Panama Canal. Vessels. reasonable fee may be chai ed for copying. SUPPLEMENTARY INFORMATION: Table olContents I. Introduction II. Designations and Classilicat ions A. Designations B. Classifications - C. Reclassifications D. Appendix K and Waivers RI. International Border Areas A. Statutory Requirement B. Policy N. Serious Area SIP Requirements V. Waivers for Certain PM—to Nonattainmerit Areas’ A. Historical Perspectives B. Waiver Provisions C. Application of Waiver Provisions D. Waiver Policy Description VI. Best Available Control Measures (BACi4I A. Requirement for BACM B. EPA ’s Historical Interpretation of Control Technology Terminology C. BAf2aI for Serious PM-1O Nonapainhteent 0. Procedures for Determining BAQVI E. Selection of BA 4 for Area Sources F. SeI ’ ’ of Best Available Control TeiwiI gy (BACI’) for Point Sources Vfl. Contingency Measures. VIII. Quantitative Milestones and Reasonable A. General Discussion - B. Reasonable Further Progress - C. Quantitative Milestones I X. Other Requirements - . - A. Executive Order 12866 -‘:. B. Regulatory Flexibility Act ,’-’, :.. In aceordanne with I R 5.9(c), thIs document is published in the proposed.... rules ctegoly.- . . ...... I. IntrtIduciioii” . Issues are discussed in thfs bcument. - regarding policy and guidance that.wlli be applicable to areas that have been designated nonattrdnsnent Tor PM40.. and recleedfied as seriousiz a . Thts ‘ document also discusses issue ’, . regarding policy and guidance on attainment date waivers potentially:’ applicable to all areas that have been designated nonattaisunent for.PM—10, . well as policy and guidance on waivers of certain other requirements applicable to PM-b serious nonattainment areas: and requirements for international border areas in PM—lU nonattainment areas. Initially. all areas designated as nonattainment for PM—b are classified as moderate areas (see section 188(a) of..’: the Clean Air.Act (Act)).’ Subsequently. ‘The 1990 Amendments to the Clean Air Ad made significant changes to the air quality planning requirements for siess that do not meet (or that significantly contribute to ambient .ir quality In a, nearby area that does not meet) the PM—tO national ambient air quality standards (see Pub. I .. No. lOt- S49. tot Stat. 2399). References herein are to the Clean Air Act, as amended. 42 U.S C. 7403. ci sat. ENVIRONMENTAL PROTECTiON AGENCY 40 CFR Part 52 (FRL-6052--2] State Implementation Plans for Serious PM-b Nonattainment Areas, and AttaInment Date Waivers for PM—b Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title 101 the Clean Air Act Amendments 011990 AGENCY: Environmental Protection Agency (EPA). ACTiON: Addendum to General Preamble for f iture proposed rulemakings . SUMMARY: This addendum to the General Preamble for the Accordingly. for the easons set forth Implementation of Title I of the Clean above, it is proposed that 35 CFR part Air Act Amendments of 1990 103 be amended as follows: principally describes EPA’s preliminary views on how the Agency should PART 103.-GENERAL PROVISIONS interpret various provisions of title I GOVERNING VESSELS with regard to requirements for PM-b (particles with an aerodynamic diameter 1.,Tbe authority citatfon for part 103 less than or equal to a nominal 10 is revised to read as followç - micrometers) serious nona ninInent Authouityt 22 U.S.C 3791. E.O. 12215.45 -. area StateLmplementation plans (SIP’s). FR 6O43. 3 O’R, 1981 Comp.. p.257. -. This document also addresses policy and guidance on attsinment date 2. Paragraph (e) of § 103.8 is revised waivers potentially applicable to all to read as follows:. . ‘ that have been designated § 1 .8 P ssence In the transit schedule; aonat inment for PM—b, waivers of order of tiassl8nq ,veu,BM - certain requfzei%emtii applicable to PM— • a a • 10 serious nonnttninment areas, and requirements for international border (e) Booking Fees. (1) For vessels - - areas an PM—to uonatteinment a eas. measured in aecordance with Although the guidance Includes various § 135.13(a) of this chapter. the fee for’ statements that States must take certain booking shaIll* $0.26 per PCIUMS Net these statements are made Ton. ‘. : ‘ ‘ - - ‘ - pursuant to EPAs prellminmy. (2) For vessils subject to the .‘. ‘ ‘.. ‘ interpretations, end thus do not bind transitional relief measures of § 135.31”.: Stales and the public as a matter of law. of this chapter and measured in - This addendum is an advance notice of accordance with §l35.13(b)ofthis ‘how EPA generally intends to take - chapter. the fee for booking shall be .‘ action on SIP submissions and to $0.23 per Panthna Canal Gross Ton as - interpret various PM-ID related title I specified on the last certificate issued by provisions. - . - the Panama Canal Commission between FOR FURThER INFORMATION CONTACT: March 23.1976 and September 30. Charlene E. Spells. Air Quality 3994. inclusive. - Manage t Division; Mail Drop 15. (3) The minfinum booking fee for any Office of Air Quality Planning and vessel is $1,500. - ‘ Standards. U.S. EPA. Research Triangle • * a a • Park. North Carolina 27711. (919) 541— - - 5255. - , - (Existing collections of information are - ____ approved under Office of Management ADOPc S! References cited herein are and Budget (0MB) control number - aVailable from the Public Docket No. A- 3207-0001. Modifications are being 92—23. The docket is located at the Air submitted to 0MB for approval.) and Radiation Docket and Information Center. Room M—1500, Waterside Mall. Dated: August10. ‘ MaIL Code6b02, 401 M Street SW., Gilbesto Guardia F., - - Washington. DC.20460. The docket may Administrvtor. Panama Canal Commission. be inspected from 8:30 a.m. to 12noon (FR Doc. 94—20049 Filed 8—15-94:8:45 aml and from 1:30 p.m. to 3:30 p.m. on BILUJ4G coos se-o-oi-p . weekdays.. except for legal holidays. A ------- Federal Register I Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules 41999 in accordance with section 188(b) of the Act, “The Administrator may redassify as a serious PM—b nonauainment area a any area that the Administrator determines cannot practicably attain the national ambient air quality standard for PM—b by the attninment date (as prescribed in subsection (c)) for moderate areas” or any area that fails to timely attain. The EPA took final action on January 8, 1993 to reclassify 5 moderate areas that were initially designated as nonattainment for PM—b upon enactment of the 1990 Amendments (see 58 FR 3334). The EPA is considering reclassifying additional areas from moderate to serous. This guidance document is being • published as an addendum to the — General Preamble for the ‘-Implementation of Thle I of the Clean - . Ijj Act Amendments of 1990 (General Pibamble) published April 16, 1992 (57. ,,FR 13498)2 Among other things , this PM—b nnnnffehm eht area guidance describes EPA’s preliminary views on how EPA should interpret. ‘various provisions of title I with regard jo requirements for PM—b serious area,. SIP’s. Although the guidance includes -various statements that States must take’ certain ct1oua these statements mu made pursuant to EPA’s preliminary. Interpretations, and thus do not bind the States end the public as a matter of law. Of course, the use of prescriptive language Is appropriate in those instances where the policy is simply reiterating statutory manflates which provide that States must ke certain actions. Possible approer]ie, to implementing the provisions In section 179B applicable to international borderireas, general SIP requirements of section 172(c), the pec1flc .requlrements In subpait4ofpartDoftltlellu serious PM—b nonattainment areas, the issues involved and the means of resolving thsei iumaredisrnseedinthe - following sections. The topics discussed include SIP requirements such - provisions to assure that best available control measures (BAQwI) are implemented; waivers for areas impacted by nonanthropogenic sources; treatment of international border areas;. requirements for quantitative milestones, reasonable further progress (RFP) and contingency measures. 2 A auppL m..MaI notice .ses published at 57 FR 18070, April 25.1907. which provides certain appendices to the April16. 1992 General Ptesmbl.. Subsequent references in this notice to the General Preamble are Inclusiv, of both documents. c. Reciassijkotions 1. General Conditions A moderate area can subsequently be retIii i9ed ala serious nonattainment area under two general conditions. First, EPA has general discretion under section 188(b)(1) to rerlascify a moderate area as a serious area at any time the Administrator determines the area cannot practicably attain the NAAQS by the statutory attainmeflt date for moderate areas.’ Second, under section 188(b)(2) a moderate area is rerleccified as serous, by operation of law after the statutory attainment date has passed if the Administrator finds that the area has not attained the NAAQS. The EPA must. publish a Federal Register notice.. identifying the areas that have failed to attain and were reclassified, within 6 The ‘A’e interpretation of the r ’ ’ 1 provisions In section le8lbX l) isdIr”— In detail in section IILC.i(b) of the General Preemble (57 FR at 13537—38). 0. Designations and Classifications months following the attainment date (see section 188(b)(2)(B)). ’ 2. Reclassification of Initial PM-it) Nonattainment Areas - A. Designations - Section 107(d) of the Act provides generally for the designation of areas of each State as attainment, nonattainment Section 188(b)(1)(A) provides an or unclassifiable for each’pollutant for accelerated schedule by which EPA i which there is a national ambient air reclassify appropriate initial PM—b’ quality standard (NAAQS). Certain nonattninment areas. The EPA proposed meeting the qualifications of section 011 November 21.1991 (56 FR 58656) to 107(d)(4)(B) of the Act were designated reIaSSlfYb4 of the 70 initial moderate nonattainment for PM—b by operation areas as serious. The 14 areas EPA of law upon enactment of the 1990 proposed to reclassify were identified Amendments (Ülithi PM—b . largely based on the magnitude and nonattainment areas). A Federal frequency of ambient PM—bO Register notice announcing all of the measurements above the 24-hour.’ areas designated nonattainment for PM- NAAQS’of 150 microgramsjr cubic - 10 at enactment and classified as meter ( ig1 jn 3 ) during calen years. moderate was published on Mardi 15, 1988—1990. The EPA took final action 1991 (56 FR 11101). ‘A follow-up notice ° 8, 1993 (58 FR 3334) to correcting some of these reclassify 5 of the 14 areas. The final designations was published August 8,’ decisiOn to rerlaccifY the 5 areas was 1991 (56 FR 37654). The nonattainment based on the criteria utilized in the. areas were formally codified In 40 G R proposal, comments received in’ part 81. effectIve January 6,199Z (56 response to the proposal and on EMs & 56694, November 6,1991). All those,:, preliminary review of the ,SIFs for thern areas of the country not designated . areas. nonattainmeut for PM-b at n ctment’. In were designated undanalfiahie (see -. decision to irI cc 4 fy an 10 nonattainment area before section 107(dR4)(B)(W) of Ict). - ‘ the attainment date will be based on B.aa s sifruons.; ”.: :. ..:’ •‘ ____ monst ialingthatth eNAAQScam iot; - • Oncean aiea is designated :.- , be attahied in the ares by -. nonattainmeat, sectIon 188 of the Act - outlines the process for classification of December 31,1994 (the statutory the area and establishes at t nlnment date specified In section attainment date. In a n1ance with. . 188(c)(1) for Initial PM—b section 188(a), all PM—b nonattamment nonattainment areas). areas are Initially dassifled as màderate 3. Roe 4 a ’tSifiCalion of Future PM-b by operation of law ta ti eir . Nonattainment Areas designation as nwiattainment. - , Section 188(b)(IXB) rovides a timeframe within wbIc EPA Is reclassify appropriate areas decigTinL . nonattaininient PM—b subsequent to ena ent of the 1990 Amendments. ____ Appropriate areas are to be redneaffied as serious withIn 18 months after the required date for the State’s submission of a moderate area PM—b SIP. 1 l ’he statute requires that these moderate area PM—b SFs be submitted within 18 months after the area is designated nonattainment (see section 189(aliz)(BD. Taking these provisions together. the statute thus requires that EPA reclassify appropriate PM—b moderate areas designated nonatlaixunent after 1990 as serious within 3 years of such designation. - Because the moderate area SIP’s are dtsi’before this reclassification deadline, EPA anticipates that any determination that such areas should be reclassified • will be based upon facts contained In ThIs directive does not rcs*gidn’Asgsnen -’ authority. but simply aperiflea ihet It Is to be exeeclsed.es appropriate, In accordance with certan dates. ------- 42000 Federal Register I Vol. 59. No. 157 / Tuesday. August 16. igo.i I Proposed Rules the moderate area SIP demonstrating Appendix K and accompanying that the NAAQS cannot practicably be gui nr (both preceding the 1990 attained by the statutory deadline. The Amendments to the Act) provide in part EPA may also consider reclassifying that measured exceedances of the PM- moderate areas For which a SIP has not 10 NAAQS which are believed to be been submitted whenever itbecomes influenced by upcontrollable events apparent (e.g:. because of an extensive caused by natural sources of particulate delay in submitting the SIP) that an area matter or by events that are not expected cannot practicably attain the standards to recur at a given location are flagged by the applicable attainment date. The and excluded from decisions as to EPAmayalsodeterminethatanarea whetherornottheareashouldbe cannot practicably attain the standards designated nonattainment.e Therefore, if . ythe applicable date when the State it is established that exceedancas are submits an incomplete or otherwise caused by natural sources, a State may inadequate SIP for the area (i.e.. a SIP be permitted to avoid designating the which would not assure timely area as nonattaixtment, even though the attainment) and the State does not act exceedances are expected to recur. - expeditiously to correct such The savings provision of section 193 deficiencies, of the amended Act provides, among The EPA does not believe that other things, that regulations and generally reclassifying moderate areas as guidance promulgated or issued by the serious rewards areas which delay Administrator prior to enactment of the development and implementation of 1990 Amendments are to remain in PM—b control measures. Rather, EPA effect according to their terms except to believes its policy aeates an incentive . th. extent that they are inconsistent for the timely submittal and effective . with any provision of the amended Act. impleen tMion of moderate area SIP SectIon 188(1) of the amended Act requirements and facilitates the PM-b pmv4d EPA with the discretionary attaJomimi objective. For example, if an. authority to waive a specific date of area that fails tosubmit a timely. attainni nt . for a PM—to nonatthinntent area SINs rerbtanffied. ‘ .area where it Is detanniniid that. does not obviate the requirement that . nonanthropogenic sources contribute the area pihinit end Implement the - significantly to the violation of the moderate area SiP r q i1rements.. ‘ -‘ j aii j to waive - Accordingly. In addition to reclassifying certain nonattainment area sip such areas, EPA would allo determine :. requirements where the Ailininistrator that the State had failed to submit a - determines that anthropogenlc ’souices PM-b SiP andthe areàcould be of PM-1O do not contribute significantly to sanctions undar sections 110(m) end - to the violation of the standard In the 179 f lts delay. As provided under. area. These provisions take as a- section l7 (a) of the Act, States - ‘.; .... fi arental premisethat areas containing areas for which EPA has experiencing violations of the NAAQ.S made such determinatlbns have up tO 18 due to nonanthropogenic sources are to months from EPA’s determination to - be designated as nonattainment. If areas submit a complete plan or plan revision- : - werepern ilted to avoid bein before EPA Is required to Impose either d nated as nonattainmentLuse the highway fowling sanction or the• - -. their violations are caused In whole or reqwrement to provide two.to-one new, part by iuicontrollable natural events.- source offsets descnbed In Section then this statutory provision would 179(b). lithe deficiency baa not been have tobe read as having no legal effect corrected 6 montbsafter the first ‘--k - or significance. However, this would sanction applies, then the second - .. canons of statutory construction sanction must apply? The EPA’s - which direct that statutory language not determination also triggers a - . be ted as mere surplusage. requirement for EPA to impose a .. Consequently, although appendix K Fede al implementation plan under . appears to be preserved in part by section l10(c)(l) of the Act. In - section 193, the provision permitting conjunction with the possible - - the treatment of “uncontrollable events imposition of sanctions. EPA may issue caused by natural sources’ as a determination to reclassify the area to exceptional events, and therefore - - - serious. -. - * . -. excludable from nonattainment D. Appendix Kand Waivers decisions, is inconsistent with the provisions of section 188(f) and should Appendix K to 40 CFR part 50 . therefore be regarded as no longer provides guidance on the interpretation ________ of ambient air quality data to determine 2.4 of appendix K of 40 (YR pert the air quality status of an area.. - 5o and Guideline on the Identifimtion and Use of Air Quality Data Affected by Exceptibi al 5 5ee58 FR 51270 (October 1. 1993). Events. EPA—45014.-86-OOT. July 1986. having legal effect. Similarly, any EPA guidance permitting such exclusion of these events is inconsistent with the amended Act. For this reason, exceedances which are attributable to uncontrollable nonanthropogenic events may not be discounted or deweighted in any manner, but must be Fully considered in determining whether violations of the NAAQS have occurred - and whether designation as nonattainment is wairanted.. Future determinations relevant to exceptional events should therefore focus on the remaining type of exceptional event - identified under section 2.4 of 40 CFR part 50, appendix K, namely whether the events—anthropogenicor nonanuiropogenic—are likely to i ur at the same location. The EPA plans to make perfunctory modifications to section 2.4 of 40 CFR part 50. appendix K. In addition, -. guidance on the Interpretation of air quality data believed to be influenced byspecialeventsandoonditlonswillbe addressed in a separate publication that. will replace the 1986 Exceptional ‘- Events Guideline. :. . -. ilL International Border Areas - A. Statutory Requirement . - .. Section 818 of the 1990 Amendments added a new section, 179B . to subpart 1. partDof titleL Section 179B applies to areas that could.attaln the relevant NAAQS by the statutory attainment date”. but for emkslons emanating from .. ,. -. outside the United States (U.S.). Fór , . PM—b non teahiTnent areas, sectioj, . -c bl9B(a) provides that EPAmust approie themoderateàreaS lPif(1)theSIP :. meets all the applicable requirements.- under the Act other than a requirement that such plan or evIsion demonstrate - attainment and maintenance of the PM—- 10 NAAQS by the applicable attainment: - date, and (2) the State demonstrates to - EPA’S satisfaction that the SIP would be adequate to attain and maintain the PM— 10 NAAQS by the attainment date but for emissions emanating from outside • the U.S. In addition, section 1798(d) - provides that if a State demonstrates that an area would havetimely attained the PM—b NAAQS but for emissions emanating from outside the U.S.. the T areamustnotbesubjecttothe - - reclassification provisions of section -. - 188(b)(2) Section,188(b)(2) provides - that any moderate PM—la - - nonattainment area that EPA. determines is not in attainment after the applicable attainment date shall be reclassified to- serious by operation of law. Therefore. - - the statute provides that areas that could - attain but for emissions emanating from outside the U.S. must not be reclassified ------- Federal Register / Vol. 59, No. 157 / Tuesday. August16, 1994 I Proposed Rules 42001 as serious after failing to attain by the. - 10 concentrations with a change in the - clearly wanted to avoid penalizing applicable date. 7 . ‘- predominant.wind direction.— ’ - . States containing such areas by not 2. Comprehensively inventory PM—b making them responsible for control of B POlICY . -. emissions within the U.S. in the vicinity, emissions emanating from a foreign Assumng that a plan or revision ‘- oIthe nonattainment area and - over which they have no - meets all applicable requirements, the demonstrate that the impact of thOse jurisdiction. Moreover, by excludi ig I State must show that an area is eligible sources on the nonattainment area after area from reclassification, Congress ai to have its SIP approved, and not be application of reasonably available elected to avoid subjecting such areas reclassified as serious under section controls does not cause the NAAQS to . the more stringent control measuies 179B by evaluating the impact of . be exceeded. This analysis must include applicable in serious PM—ia areas. In emissions emanating from outside the an influx of background PM-to in the - - addition. as set forth In section-’ U.S and demonstrating that the SIP- area. Background PM—b levels could 179B(a)(2), the second con’djtiorfwbfch’ would bring about attpinment but for - based, for example, on concentrations must bernet before ‘E pA may approve a those emissions. Several types of ‘. measured in a similar nearby ’area not -‘ moderate -area plan showmg attainment’ information may be used to evaluate the influenced by emissions from outside. . but for foi eigii ëmlisions;b3? its plain • impact of emissions emanating from - the U.S.” .‘) ‘ . ten ,Tequires theStateto àtablish’ outside the U.S. The EPA will consider 3. AnalyZe ambient sample filters for only that th pIan submitted would be the information presented by the State . SPeCifIC types of - ‘adequate” to timely ‘attain nd ‘ - - - for individual nonattPlnment areas on a from across the border (although not maintain the NAAQS, but for emissions -ease-by-case basis in determining .. ; ‘ required, characteristics of emissions outside the U.S. Nothing In section whether an area may qualify for •‘ -, from foreign sources may be helpful). -. 179B relieves the State from meetiirg all treatment under section 17gB. Five-- - 4. Inventory the sources on both sides its applicê1il m derate ’axea ’PM—iO SIP examplespf such information are listed ’ ofthe borderandcnmpaze the below in Increasing order of ‘- , . -: magnitude of PM-la ,, requirements, includin the reqüIiem nt ‘sophistication (the State may.use one or’ originating within the u.s:totiiose -: . to lñrplement RAC LNonethelese iL In emanating from out id he U.S. . . dOfli SO, States t, nf Iithtg s’ith-an area “more âf these types of Information Or- - 5 Perform air dispersion and/or. , ..Wer5 lso. u1redbecause.of - gôn’their ____ ,to evaluate -. receptor modeling to quantify the . a ’-.’. contnbutions’to PM-lO violations ___ caused b , for 1gn.mkclons t shoulder” i rnnr.niing relative Impacts on the 1 onaffninjrnent , e oinic’ - the US. on the nonanjnnment., - area of sources located Within the u:s: burdenthan States flot similarly affected- efirat tèeXaIDplOSdoflot. :edU0 81 leqithe the &àteb, - “ ‘ons (this ap rcacltamibines : ‘ ri jmp lemntnl ’ measuze,ah lth a foreign country - --. , . , information a)llected from the .- -. :: .go,well,,b,yond those whIt h ihó SIP - lLlVOflthI7 “. ‘dern tn* ieawotIld oiher dse be,. iPlace several ambient PM—TO ‘- -- meteorological o niblánt ...- ‘ad.quate.to tlmelvaãali and-maintain ..iirànitors aid a meteorological station.’ — ,zneaEurkg wind spied and direction, monitoring network, and nalyais of’ • the PM -1ONAA S) su alequkeneni. filters). - ‘.. .-‘ ‘ : Would nnf*f ny pswuilis StateS , . -., iI US. nonatthirnnént area neir the In addition to demonstrating that the - gintemational border areas iiteziraftonai border! Evaluate and IP for the area would boadequate to “and effectlvly undermine the purpon quantify any changes In rnoliit red PM’- timely attain and maintain the NAAQS ‘ of section 17gB. Indeed, to the extent a... - ________ - but for ienoniAmim .itinE âutslde the affected State can satisfacjorily - - ‘As DOted, seetfon iraBid) etate t1 us.. the SIP must,conlinue to meet all - demonstrate that Implementation of • .t _ 1um4rstlIe of the standards, bti for . . “. .i..eman.tlng frcm uts e itie U.S.. -. applicable mdderate area IP ‘ - such measures dearly would not not b.subleet t i 1e. (bp (2) u . . . requirements in order to qualify for the: advance the ot iWsment date, EPA-could for fousi’ tosttaI4 By analagy to this provision special S W approval under section- - Conclude they are unreasonable and .hd.pplylugcanona,ofststutcly construetlon. EPA. 179B. Among other thinge , the SIP must hence do not constitute RAQ’A. will Dot i -l. . ..Ify before the applicable i . 1 . - provide for the implementation of. Notwithstanding the above, In light of, etantiards, but for emissions emanating hem reasonably available control measures the overall health and clean air - outside thet IS. (see section iaS(bXl)). Tint. (RACM), including reasonably available objectives of the Ant, EPA does section 17OB evinces a general congressional Intent’ control technology (RACT) ( e 57 FR encourage affected States to reduce not to penalize areas where etnlssions emanating - ______ front outside the country sic the but4 use of the 13540)- In international border’areas, - em ss oiis beyond the minimum ‘PM-b nonatteinment problems. Further. UEPA .RAQ ilRACr must be implemented to necessai y to satisfy the “but for” test in were to isdassify such areas before the applicabl, the extent necessary to demonstrate order to reduce the PM-to attainment date, EPA. In effect, would be resdizig attainment by the applicable attainment concentrations to which their -. section 1798(d) out of the statute. Specifically. - date if emissions emanating from populations are exposed.- EPA proceeded to r. ratfy, before the appllàble attainment dats, those areas qualifying for tregtment outside the U-S. were not included in - ,The SIP for an international border - under se ion blOB, an area would never be subject the analysis. The EPA believes that this area must also include contingency to the provision in sectiçn 1798(d) which prohibits interpretation of the degree of RACM measures as required under section EPA from reclassifying such areas aftar the applicable atIAi..” . .nt 4ate. Cenons of statutory the State Is required to implement in 172(c)(9) of the Act. Under section construction counsel against interpreting the law moderate PM-la areas affected by ‘ 179B(a)(1), such SIFs must meet . . - such that language is rendered mere surplusage. ‘ emissions emanating from outside the’ the.requirementiapplicable to it under Finally, note that section 1798(d) contains a clearly u.s. is consistent with the purpose of - the Act” except that they may erroneous reference to carbon monoxide instead of PM-io. and that tliis ection contains section 179B. By directing EPA, under - 4emonatrate timely attainment by errors (see. e.g. section 1198(c) referince to section section 17gB, to approve the plan or ‘ - discounting emissions emanating from b86(b )(9). which does not exist). . -. plan revision of a moderate PM-b area outside the US: Contingency measures S e 40 O R pert SBbor guidance on locating which shows it would attain the ‘ are additional measures included In the PM-to monitors and “On-site Meteorological - NAAQS but for foreign emissions and - SIP that can be undertaken to reduce Prog ani Guidance for Rcgulatoty Modeling,’ ‘Applications,” EPA-45Ol4 47-O13, 1967 for ‘by excluding such an area from - - emissions if the area fails to make RF guidance on locating mclcor,loglcsl stations. ‘ reclassification to serious, Congress or to attain the primary NAAQS by ti ------- 42002 Federal Register I Vol. 59. No. 157 / Tuesday, August 16. 1994 / Proposed Rules applicable *ltiiinment date. In the area is requited undersection be implemented in the area. The EPA international border areas. EPA will not 189(b). This revision must, among other intends to issue guidance in the future. require the contingency measures for things. include provisions to assure that as appropriate, on applying for an PM—la to be implemented after the area BAQ4 (including BACT) will be . extension of the serious area attainment fails to attain if EPA determines that the implemented in the area (see section date. area would have attained the NAAQS, 189(b)(l)(S)). In addition, a lEa serious area fails to attain by the but for emissions emanating from. demonstration lincluding air quality applicable atteinment date (which may outside the U.& However, the EPA will modeling) must be submitted showing be an extended attainment date). require contingency measures to be that the pLan will attain the NAAQS another SIP revision is required within implemented if it determines that the - either by the applicable attAinment date 12 months that provides br attsinment area failed to make RFP in achieving the or. if an extension is granted under and until then for annual reductions in required reductions in PM—b emissions section 188(e). by the most expeditious PM—b or PM—1O precursor emissions from sources within the U.S.. or if the alternative date practicable (see section - within the area of not less than 5 area does not, in fact, obtain the 189(b)( IIIA)). percent of the amount of such emissions emission reductions that were necessary. The SIP revisions to require the as reported in the most recent emission. to demonstrate timely atthinn ent of the implementation of BACM must be inventory for the area (see section NAAQS. but far emissions emanating submitted to EPA within 18 months 189(d)). from outside the U.S.. after an area is reclassified as serious In addition to the specific PM-la SIP (see section i89(b)(2)). The BAavt are to requirements contained in subpart 4 of iv. &re. SIP Requirements be implemented no later than 4 years part D. title 1. States con Aining serious The Act requires States to submit after an area is reclassified (see section must meet all of the applicable several SIP revisions, as necessary. 189(b)(1)(Bll. The EPA’s policies general SIP requirements set forth in - providing for Implementation of regarding the requirement to implement section 110(a)(2) and the nonatt&nmmit increasingly stringent control measures - BAQwI in serious areas are disr, , ced in - area SIP requirements set forth in . - and demonstrating When those control section VI of this document. . subpart 1 of part D, title I, to the eatent measures will bing about attainment or The serious area attainm mt : are not otherwise the PM-b HMQS. The first SIP demonstration required under section subsumed by. or Integrally related to revision was due .Novembct15, 1991 for 189(b)(1)(A) mint be submitted to EPk the more specific PM-to .. - the Inlti l moderate PM—ID • within 4 years after an 3 5iS The general SiP nonattainment areas. For . re’ 4 ed based on a determination by. applicable to all. redesignated nonattainment for PM-b EPA that the area practicably ntthl’un,.’t areas are disc imed In in the fu ture under -section bO7(d)(3). attaIn the NAAQS by the statutory - the General Preamble at 57 FR. 13556- theflrstSlPrevlsioñ*illbeduewithin deadlineformoderateareas.ftlsdue’ 13557. 18 months aftefthierea Is redesignated- within 18 months after an area in The iemaots spe icaUy (see section 189(aX2)). him SIP revision reclassified for actually having failed to. applicable to serious areas under must, among other Iting provide.foi attain the NAAQS by the moderate area P’ ma ilY in section implementation of RAQ4 on sources In att ment dat (see section 189(bX2)). ‘ige Those requirements include: .‘ -. the area (see sediorih’189(a)(1)(C) an4 . The new aU ’ ent date for Initial a. Currentactual and allowable i72(c)(1fl. ’AU iailible tecbno1ogIcally .PM-?10 nonattainment areas that are seniwiona inventories that meet EPA.., and economically fàsible control: • - - redEs eiAed as serious Into hO AS ‘ guidelines” (sb section VI.D. below). measures would expeditious as pr esiile b. SubnilsLclon of a SIP, nndnr section and therefore reasàè*able Tor adop lon.’ .t than December31. 2001. For 8Z AS that • 189(b)(1)(A), that includes a - for areas that cannot attain the NAAQS ‘are designated manIt nmieai fee PM-tO demonstration that the plan provides for by’the applicable attainment date: in the future and subsequently become ettait t by the applicable attatnesent (December 3 l994 for Initial moderate: serious, the attainment date is lobe as - ; data (December31, 2001 for the areas PM-1Onon ttä nment areasi(see 57p expeditious as prarikehle but no later ‘ initially dielgnated nonattaininont for thantheendóftheteathcalendaryear PM_iObyoperationof lawltindRr . - U EPA datennines that atubdetate j j after the area’s designation as section iol(d )ta) and no later than the area cannôtpia .dieaI ly ittain the - 4 nonattntnment (see section i88(c)(2)). • end of the tenth year beglnningaftertho - NAAQS by the applicable attainme t ;.: . If the State demonstrates to the • area’s indesignation for areas -. date (or determines the area has failed . . . satisfaction of EPA that attainment by subsequently redesignated to attain) and reclassifies the area as a , the statutory deadline for serious areas nonattainment). or a demonstration that serious nonattainment area under ‘- - (as set forth in section 188(c) of the Act) attainment by the above date is not section 188(b).a second SIP revision for is impracticable, the State must -. pi cable and that the plan provides - — - -. - - demonstrate that the SIP provides for - “ . for attainment by the most expeditions •Plote that if , iih . attainment by the most expeditious . -. alternative date practicable.” • unreasonable because emissions from the ,ourom - alternative date practicable. The State ‘- - affected eta Inslgniflcant or do minimia, such may apply to EPA for a single extension 57 l3538(A Il . 1992k measures maybe eiduded from misideretlon as • of the serious area attainment date, •. they would na represent RAQ t for that area (see ____ ____ 57 Fit i .i o in lct te.ui a • under section 188(e) of the Act, not to p wg - oc. U .S. Euvko’ ’ t Proi-”—n areas. measwas which go beyond those which the exceed 5 years beyond the serious area - - Agency. Research Triangle Park. NC. i993 SIP demoastiates would be adequate to attain and • attainment date. A State requesting an., Subsequant toadopthig requirements for BAQ* maintain the standard, but for emissions emanating , extension under section 188(e) for an shmxtly aftet the nonattainmant area is reclassiliad from outside the U.S.. would not beatnaidseed • as serious. it may be oscessamy for the State to ada * ‘remiably”auiabha-and therefore ndd be area must, among other things, - additional conuol meesuins in order to denwostaate requited by RACM—aiace they would not advance demonstrate that the plan for the area that the SIP provides for attainment of the PM-tO the attainment date (although States may elect to includes the most stringent measures NAAQS in accordance with section iaa(blD)(Mtfl. If the State demonstrates, in accordance with iniplement such measures in otder to reduce the that are included in the implementation. - section 189(bl(i)(A)(iiL that attainment by die public’s seposure to P 54-10) (seeduscussion wider.’ International Border Areas olthisguldance - -. . ‘plan of any State or are achieved a - - appUcal . serious area attainment date is document). .. - - .. -‘ . practice in any State. and can feasibly .. impracticable sod teaks an extension oltha ------- 42003 Federal Register I Vol. 59, No. 157 1 Tuesday, August 16, 1q94 / Proposed Rules c. provisions, under sectic.1 : -- - Office of Air Quality Planning and The EPA’s policy focus shifted away 1 8g(b)U)(B),toassurethatBACM -. - S*andardstotheDirectorsoLEPA - from thetype and location of the (including BACT) will be implemented Regional Air Divisions on March 4,- - emission sources (i.e., tradjtional or no later than 4 years after the area is 199l.’ That supplementary policy is nontraditional sour , urban or rural - reclassified as serious. : not applicable to serious area SIP locations) to the size of the particles ci. A requirement, under section demonstrations. . - - emitted when the indicator for the -. i89(b)(3). that the terms ‘major source” . fu; Certain PM—b . ‘. NAAQS was chanted in 1987 from to and “major stationary source,” used in Nonattalament Areas . . -. suspended particulate matter to PM—lu. implementing a new source permitting - . While revisions to the rural fugitive dust program under section 173 :and control A. Historical Perspectives ‘ - policy were being considered, the policy of PM-b precursors under section - The EPA in the pat icued muf was ontihuedduflng the initial phases 189(e), indude any stationary source or- its air pollution control efforts - -- of implementing the PM—jo NAAQS on group of stationary sources located - - industrial point source emissions and,.’ an Interim ba 1s.’ However, EPA -. within a contiguous area and under other traditional sources of air -believes that.the 1990 Amendments common control that emits, or has the pollution.’ 3 For instãnce, EPA’s 197? ptovide a statutory altethathO ihit potential to emit, at least 70 tons per -. - guidance on SIP development gave - wholly supplants the runi fugitive dus year of PM-la.- •. - - -. - ‘ priority to control of urban fugitive dust policy (see sections 107(d)(4)(B) and e. Contingency measures’ 3 (see: . after control of traditional sources, but 188(1) of thésniended Act; 56 FR 37659, section VI I. below).’-.- . -. in preference to r iral fugitive dust,’on... (August 8.1991)). z f. Quantitative milestones, (applicable the groun4s that (i) urban soil was - ‘. - - Va Prcvisions ,.. f ‘ ‘... - . - C a.— . — —. to both moderate and serious area SIP’s . believed to be con? initnated and, . - under section 189(c)).: which 5 to be .therefore, potentially more - 1 e Act ns ame ded iñNov er achiévedevery3yearsuntiltbearea’is thenativeson lniuu’areas;.(2) the i99O;wasdesignedtoassi rothat” redesignated atthlnment, and which otentlal for rg ificant’ opu1àtibñ : aitalnment end miiñten iu ofJhè PM demonstrate R1 P toward attainment byt. (p $ ssi I eclant health effects- ’ 0 5 afld 5 the applicable date. P - was li great i eni includes arequizement4oi periodic ‘ resources ati as ‘ the reports-demonstrating whether ‘the Z- --- : milestones have been’inet (see section - .‘ -. , ,. - . .. - - .- g. Plan revisionswbidi pro nde foi * at1 1nmnrt.of the PM-IC NAAQS d nnuaLreducsofnotiessihan 5”-t ’ emi inn in b .. - . panixul.of Inventoried PM-IC nd PM-. co fo1 f - ,,. The i ConPM—lO 10 precursor emissions wflhln the area, so in dontristcont öl . Ighot adequate to under section’189(d), if the s rfous arec.. ret uuremenfi foritiral asêe-far fails to attain the stand mrdsr -. - - less ambitious.’ focussing on the ‘conirál’ ,attaln the NMQS.’subseqient revisit 11. As applicable, RACr-level, SACT -. àf major - — - must provide for implementation of level, and new source review control of ‘attention given to ñaturai or ‘. additional, more stringent control - PM-b pracussors from major stationary nonindustrial emlssldns. This jteflbcy of’ measures unfit the NAAQS are au fned. sources of precursors in the airshed - giving a lower priority to controlling . — - Cón res .riccgnized that there may be areas where the NAAQS may never be (applicable to both moderate and. “‘ nonindustrial emissions in serious area SIP’S under section 189(e)).. rural areas be ame kno*n as the “.Rurêl - attained because of PM—b emissions — The demonstration required under Fugitive Dust Policy.” . -. -.. -. - from “noninthzvpogenlc sources,” section 189(b)(1)(A) should follow the . ‘ - - ‘ - ‘ , — - and that the Imposition In such areas of eilstlng modeling guidelines addressing sn I flfl - certain State planning requlrenienis. as PM—b (e.g., “PM—ba SIP Development io, Init i al i tode ate iJo ttalnsnent Areas,” -.desaibod in the previous section, may Guideline” Uune 1987); “Cuideline on memorandum (rum John Calcagmu and William not be justified. Therefore, under Air Quality. Modelst’ (Revised)’ - Laxton to Director. Air Division. EPA Re 5suna sectiqn 188(f) of the Act, Congress. * Pslarcb4 , 1991. memorandum from Joseph Tikvart and EPA distingu hetween”tradlUonal” provided a moms for EPA to waive a Robert Bauman dated July 5. 1990) and. and”nona-adit lonal” -. ... specific date for attainment and certain any applicable regulatory requireme’nts.: “ot tjaditicnsl source” first appeared in official ‘ control aid planning requirements A supplementary attainment - - - 1” °’ in 1976 in EPA’s “National Assessment of the -‘ when certain conditions are met.In the Urb , Panlc ilate Problem,” EPA-45013-76-024, - demonstration policy applicable to - July tom, and as coined as a CatCh-eli to refer nonattaiñment area. ‘ 1, initial moderate PM—jo nonattainment.- - - thosg sources not treditionelfrconsidered In air - Section188(I) provides two types of. areas facing special circumstances was IollutiOn control strategies, including con i, tio .waivers. First, the Administrator m y, - issued in a memorandum from EPA’s and demolition, tailpipe emissions, tire wear, e d .on a case-by.case basis, waive any - - various sources of lugitive dusL Since liter., the use requirement under subpart 4 applicable. of the term has expended to include such source attainment data pursuant to section ISSue), the Stale’ as prescnbed aajicullural and silviculturat b bIg. to any serious nonattainment area where must demonstrate to the best of Its ability that lbs open burning. and residential wood combustion. EPA determines that anthriopogenic - plan far the area includes the most stringent ‘°“Guidnnce on SIP Development slid New - sources o(PM—10 do not contribute measures that are included In the Implementation ‘ Source Review in Areas Impacted y Fu 0 tive plan of any.State or are achieved in practice in any Oust,” Sdward F. Tuerk, Acting Assistant, significantly to the violation of the State, and can be feasibly implemented in the area.. Administrator for Mi-and Waste Msnagement,lo’, “Contingency measures are other available -. Regional Administrators. - - . “See 52 FR 24116 Uuly 1.1987). - - control measures, In addition to thou in the control “See. e.g.. “Model Letter Regerding State - .. “Il)C legislative history of the 1990 Amendments strategy to eltain the NAAQS. that can be - Designation of Attainment Status.” David H. indicates that Congress intended that the term implemented if EPA detertnlnes the area fails to - Hawkins, Assistant Administrator for Air and Waste “nonAntbropogenicv sourcesbfPM-10’referfo make reasonable further progress or to attain the Management, to Regional Admlnistrstørs. Octobár - actlvltleswhere the bumSu role In the cause of NAFtOS by the app1icable attainment dale Isee 7. 1077; soc also, “Fugitive Oust Polic r: SIP’s and s emissions is highly attenuated (see WR, Rep. N New Source Review” (Augt 1 st 1CM). -‘ 490, 101st Cong., 2d Sass. 265 (1990)). mctio; 172(c1 19) ), ------- 42004 Federal Register I Vol. 59, No. 157 / Tuesday, August 16, 1994 1 Proposed Rules standard in the area. Second, the The Act does not define the term area’s practicable abilities. These Administrator may waive a specific date “contribute significantly” as it is used principles are discussed below in for attainment of the standard where in section 188(f), nor does the legislative connection with each of the two waiver EPA determines that nonanthropogenic history provide any useful giiJd e. 2 I tests. sources of PM—b contribute - Where a statute is silent or ambiguous In selecting an appropriate significantly to the violation of the with respect to the meaning of a “significance” contribution from standard in the area. statutory term, a reasonable agency anthropogenic sources (for the purposes Section 188(f) contains two different interpretation of the term must be given of deciding whether serious area legal tests. The first test applies to a deference by a reviewing court (see requirements should be waived), £PA waiver of the erious area requirements Chevron U.S.A.. Inc. v. Natural has elected to rely on the test of and requ sos that EPA determine that Resources Defense Council, Inc.. 467 significance that is applied under new anthropogenic sources do not contiibute U.S. 837,842-845(1984)). The EPA source peimitting programs. Under the significantly before EPA grants such a thus believes it has the authority to new source review (NSR) permit waives. The second test applies to a select reasonable criteria by which to program, the EPA requires State waiver of an area’s att inmeat date and determine when nonanthropcgenic/ permitting programs to consider new requires that EPA determine that anthropogenic sources in an area do/do major sources or major modifications as nonanthropogenic sources contribute not “contribute significantly” to levels - causing or contributing to a violation of significantly before waiving the of pollution which exceed the NAAQS. the PM-ia NAAQS when the source attainment date. The first test is more as well as to consider for this purpose, would add, at a mininaum, over 5 hg/rn 3 stringent than the second. criteria utilized In other statutory to the 24-hour average or aver I pg/rn” contexts. In light of the different legal to the annual average PM—b C. Application of the Waiver Provisions tests set forth In section 188(1). the EPA concentrations In an area that does net Several quedfrm’ must be answered believes that diffarent indicators of or would not meet the PM—1O NAAQS before the waiver provisions can be s ficance are needed to serve thi (see 40 CPA 51.165(b)). Given that the applied. Each of these questions statutory purpose of encouraging’ purpose of new source permitting’ discussed In the subsections that follow protection of public health and welfare orograms is also to protect air quality hr 1. What types Of sources should be while avoiding unreasonable centrol both attainmPiit and fl ttIiliim unt considered anthropôgenic and actions. The criteria which EPA believes areas, EPA generally believes that the nonanthrogogenic?.. . -. provide a reasonable approach to test of ItlgnIfir ut contribution to .me legisiative history of the 1990.. mnHng such a determination, as well as violations under that program abould andmenta caties that Congress a discussi n of the basis for selerting also be appIi h1a what determining Intended that th e term these criteria, ate set forth below. significant contributions of ‘nonimtI vopogenic” souzuss of PM40 Generally, where a nonattainmeni anthropogenic sources uni section refer to activities where the human role .- ‘area’s anthropogenic sources contrIbute 188(f) of the Ad. ft should also be noted. in the cause of such emissions is highly. r very littleto violations, It Is likely that : , that, In detsrmiidng t ” th ce ” for attenuated (see ,aR. Rep. Ne. 490 at - -controlling those m i ons to the extent purposes of section 188ffl,.th. 265). Naturally ocourring events sui h - feasible for the area wilibe Inauffident terms of that provision and its.- -. .wfldflres volcanic eruptions, unusually,, to attain the NAAQS. Iniuch cases, it’-, underlying purpose dictate that EPA’ .hlghpollepcounts.audhigbwinds , .b...wouldbeunxeasouabletorèquhethe thderthelmpactofthe : .y . . .. : \vhlch gáarate dust to implement more stringent and - anthrepogenic sources as a whole. - ;land are cicamplel of lonanthropogenic more ,cpensive controls on -• ‘consequently, where emissions from all sources that EPA believes meet the;: : . ces ios the rwOuld - anthiop genlc sources as a whole’-’ InteOt ofConress.. , . ‘contribute little to attehtmentorto conthbute less than or equal to-S pg/rn . Mithropogonlc sçuzces of PM—b..: reducing the publici exposure ti.- ‘. “ to 24-hour average design : .... .,.. eanlesions ate those zàultlng from. ; .. . : yairqua1it In iw Ier . concentrs* is and less than or equal to human activities. SemO of the t ’whero nimrnthrópogenlc Prnleclon - I pg/ma to annual mean dacfgii -;“ -‘ traditional nd nontraditional’ . ‘ .. • ‘: . contributions are great, even afthe the ‘ ‘concentrations in a nonattainment area. :anthropo enlcbsources generally :, .•; . area h s taken seasonable stops to - - after all RAQI have been “ - - considered In PM-jO SIP’s are - uce them, at some point it may not itnpleznented. EPA qjJj gu 1 fly commemial; Institutional, and -s - ‘ — -be feasible for the area to reduce ‘.. regard such contributions as’ residential fuel contbusdon fossil fuel- ñonanthropogenic (or anthropogenic) - - insignificatit for purposes of waiving fired elecfriC power plants; industrial emissions sufficiently to effect any real requirements applicable to serious PM- - pmcesses vehicular traffic on paved change in ambient concentrations. - - 10 nonattainment areas pursuant to -and unpaved road ConstructiOn - - - - Consequently, It would be unreasonable section 188( 1 ). activities; agricultural activities; and - t require the area to continue to pursue Generally. if an area meeting this test other sources of fugitive dzst which are - control measures that are beyond the - has not yet been redassifled as serious diiu tly traceable to human activities . and the area would qualify under this - and which are reasonably foreseeable - . 2 ft that the term ‘contribute test for a waiver of certain serious area incidents of such activities.ra - -. ‘ - . significantly” (or variatiotis of that tans) has bees requirements as deemed appropriate by 2. What criteria should be used in ini. ..t.d differently oughout the An e & in EPA (see discussion below), then EPA determining when nonanthropogenic ‘ OZO IcaIbOD monoxide prc amo (see section 107(dX4UA)(ivl and (vfl , the new souico review will not require reclassiflcation.since sources contribute significantly and in .pminc ptovlslonstfthe ‘ that action would have no practical when anthropogenic sources do not -- n stut e .suctf o n slio(axa)wklxi lend contribute significantly to violation of - 126(ah(l) (b). An agency Is permitted, but not the NAAQS in the area’ - ox1%IIr (0 a similar m..mngtosimllat (onus - - Implemontation of RAcu (utciuding RACTI is - - which appear in difierent pans of a statute. Thus. required in all moderate PM-TO nouau.inment - ‘ - - ‘ although EPA is not bound to adopt the - areas and that requirement is not waived under the ‘Pb4-lOSlP iop tGu Ine.” EPA- - . in retationgiven the team”amtribute - - - provfsicxxs of section 188(fl . Therefore, the Issue is 450/2-86.002, U.S. Environmental Protection .. - significantly” in other parts 01 the stature. It is whether anthropogenic mutter still rnniribãte - “s ° i Research Triangle Park. NC, 1987. p.5-5. likewise not precluded froor acoorduig this one of significantly to violations of the NAAQS In an area. Table 5.1. - - - - similar language some interpretive weight after implementing RACM. - ------- Li U uI c51 &cf I ua. , . i i iuesuay, August Ib, 1Y94 I k’ropoSed Z Uit s 42U$i5 effect. Generally, if the contribution of - significantly to violation of the PM—la showing that nonanthropogenic anthropogel].ic emissions to the 24-hour NAAQS in a moderate area and whether emissions contribute significantly to the design concentration exceeds 5 ig/m 3. such area therefore qualifies for an nonauainment problem. - or if the contribution to the annual attainment date waiver. - - - As part of its policy, EPA will require design coilcentration exceeds I pg/rn 3, The significant disparity between the that areas receiving waivers be revisited even after the application of all RACM, legal tests set out in section 188(0, as periodically to reevaluate source then the area should be reclassified as discussed above, may lead to an absurd contributions, to ensure that source serious, and serious area requirements, result. In particular, if a moderate area emissions growth is reasonably including BACM, should be . met the less stringent attainment date controlled, and to determine whether implemented. The EPA will consider waiver test and the attainment date for additional controls to reduce the exercising its authority to waive serious the wC was actually waived, the 81 public’s exposure to high concentration area requirements on a case-by-case would never be reclassified. 3 The result of PM-la are available (see also the basis where the anthropogenic source would be that a moderate area would be discussion under question 5). contribution exceeds these levels, and it effectively relieved from the serious area 4. What happens if an area cannot can be persuasively demonstrated that requirements without having met the meet the general criteria described - because of unique circumstances, more stringent test that Congress . above? .... . - anthropogenic sources do not contribute expressly required be met asa If evidence in a given nonattainment significantly to violations of the PM—la prerequisite to a waiver of such - area suggests that nonanthropogenic NAAQS in the area. requirements. In such an event, the emissions may co tzibute significantly The EPA will consider - more stringent test for determining to violations but are not greater than 150 nonanthropogenic sources to contribute - whether to waive serious area — pg/rn 3 and/or anthropogenic souzra - significantly (and hence grant an requirements would be.rendered contributions are relatively small but - attainment date waiver) only if, after the meaningless. Moderate areas wo ild - ... not less than 5 pg/rn 3 , then EPA will , , - - application of RAGA to - - -. -. quaiify for the attainmentdate waiver,.: review the situation on a case-by-case . - vionanthropogenic sowons, their : be effectively relieved of all serious area.. .basis taithig Into aecount relevant contribution to the 24-hour average . -requ1rements and never haveto meet.. Information sudi as the relative Z —: design concentration exceeds 150 pg/ ---‘ the required test for such waiver. : contribution of nonanthropogenic—;..,.: in 3, or their contribution to the annual - To avoid this absurd result and only emiailons/antbzopogenlc emissions and mean design concentration exceeds 50 - grant a waver of the serious area - the effects of applying additional pg/rn . Bemuse the basic purpose of - requirements consistent with the legal .controls to both types of sources.. - -- title I is to protect public health and - - standard set out in the Act, EPA has i-.. For moderate areas, If pPelinhiflafy, - welfare through attainrnpnt and. ‘-c: . construed section 188(1) In the following data ( amianfri Inventory, filter analysis. - maintenance of the NAAQS, EPA - “ “ er. A moderate area may cel etc.) persuasively Indicate that • - .- - believes that before it may 3enerally ’ -‘ - qualify loran attainment date waiver if. opogen lc.senleslons may be- ‘: presume a serious area’s - .. It also qualifies for a waiver of th- - innignJfr nt and that nonanthropogenic - nonanthropogenlc emissions ‘ serious area requirements. Theiefote, ‘ sn si ions may be aignificant In an area, contribution to be significant, tha i -. EPA must determine that antbropogénic but such dita are not decisive, then EPA contribution should by itself prevent the sources In the area do not contribute wall consider grantin .a temporary or -. area from attaining the NAAQS after significantly to the violation of the PM-.- conditional waiver of the moderate area’ reasonable steps have been taken to . 10 NA.AQS, and the serious area - attainment date for no more than 3 years reduce or minlmi e their impacts. Areas requirements should be-waived before to allow further evaluation of the -. which do not meet the above criteria, EPA can grant an attainment date - situation. Prior to granting a temporary and other situations for which the waiver for a moderate area. If such a waiver, EPA and the State must agree on general presumption is rebutted, will be - determination Is made, then the a protocol forevahiating the impacts of reviewed ona case-by case basis (see attainment date may be waived and the anthropogenic and nnnnnflropogenic question 4 below), - area would not be rerlamified. These emissions. The protocol must include a Information derived from chemical special considerations would not be schedule with Interim milestones by. and optical analyses of ambient filter relevant where EPA Is determining - which the StaId will complete its catches, area emission inventories, and whether to waive the attainment date for analyses. The schedule should consider dispersion modeling to determine a serious area since waiving the date in the need for the area to adopt and na,dmum source impacts can be used to such circumstances would not asa implement BACM so as to meet the avaluate the impact of anthropogenic matter of course have the effect of applicable serious area attainment date and nonanthropogenic sources. Analysis ‘ relieving the area of the serious area (as expeditiously as practicable and, for of filters collected with a network of requirements. An area already those areas designated nonattainment monitors over a tong period (1 or more reclassified as serious could qualify for under section 107(d)(4)(B), no later than years) should reveal the portions of - an attainment date waiver solely by December 31, 2001) in the event the normal area PM—b concentrations _________ evaluation demonstrates that attributable to background, - 23 II EPA waives a specific attainment date fore nonanthropogenic emissions do not conanthropogenic, and anthropogenic moderate area censistent with its authority *indei contribute significantly to violations in sources, respectively. -. - - the area. If the evaluation conclusively 3. Under what conditions will the be subject to reclassification under section 18a(b) demonstrates that nonanthropogenic attainment date for a moderate area be because there simply would be no attainment date emissions are significant, then a waiver waived? that the ales Cannot practicably meat or that of the serious area attainment date may ‘i’l. ST I - - 1. - area fails to meet. However, since section 18 5 (l) ue eiiect o waiving we attainment authorizes waiving only the attainment date, the be granted. - date for a moderate area is to relieve it moderate area would still be subject to all the If it is shown for any moderate of the serious area requirements. remaining moderate area SIP requirements. no attainnje t area thet,-although Therefore, special considerations apply ‘ ° r nonanthropogenic emissions mag be to the determination of whether must. among other requirements, centinue significant, the application of controls rionanthropogenic sources contribute pmvide for implementation of RAQVI. on anthroDoQenic sources would 1 ------- Federal Register / Vol. 59. No. 157 I Tuesday, August 16. 1994 / Proposed Rules ippreciat iv reduce PM—jo . NAAQS at some time in the future 6. What requirements applicable to :oncentrations in the area, then the area through available means. While EPA serious nonattainment areas under vould not be granted a waiver of the does not expect States to exhaust their subpart 40! part D should be waived? noderate area attainment date, but resources to meet standards that may be The individual subpart vould be reclassified as serious. The unattainable, it does expect them to requirements (see section IV. abovel will irea would then be required to continue efforts to minimi7P exposures be waived only after considering all roplement BACM on non-de mini mis to unhealthy air, relevant circumstances on a case-by. anthropogenic source categories (see Even thougji a specific attainment case basis for serious areas where liscussion in section VI). However, date and serious area requirements may anthropogenic sources do not contribute subsequent to such reclassification, the be waived indefinitely for an area significantly and where R,ACM have area may later apply for a waiver of the where, respectively, nonanthropogenic been implemented. Currently. the serious area attainment date if it can sources contribute significantly to section 189(b)(3) requirement to modify demonstrate that even after - violations and anthropogenic sources do the definitions of “major source:’ and Implementing BACM (and after not, the State should review theslatus “major stationary source” is the only considering the extended attainment of anthropogenic and nonanthropogenic serious area requirement that will not be and post-attainment provisions of , source contributions in the area every 3 waived. sections 188 and 189 of the Act), years. Such a review would entail nonanthropogenic emissions will determining whether nonanthropogenic L i Waiver Policy Description prevent the area from attaining the sources still contribute significantly and Consistent with the discussion above. NAAQS. anthropogenic sources do not contribute the EPA intends to implement its 5. For what period may a specific significantly to violation of the PM .40 authority to grant waivers under section attainment date be waived? NAAQS in the area. Since emissions 188(f) in a manner described by the When nonanthropogenic sources have from anthrepogenic sources increase dis rem presented in Figure 1. It is been determined to contribute - with population growth and the location important to note that this diagram is significantly to violations in an area that of new sources to the area, the provided for illustative purposes only has been reclassified to serious, in contribution of anthropogenic sources t and should not be Interpreted contrary acI nr with the above criteria, ‘ ‘ ioIatlons can become significant over to the policy as it Is described In this: those sources may permanently prevent time. Therefore, the need for reinstating notice. The figure presents six dethion the area from attlliTling the standards. a specific attainment date and/or, questions. A SIP submitted for a .- Therefore the attainment date for such previoüsiy waived se rous moderate nonattainment area seeking a areas coáld be waived indefinitely. requirements shpt ld be recnsidered - waiver Is expected to address “However, the phrase waive a speciflc - poriedically. ‘ ‘ - . -‘ - tiaree questions:.- .. -. date” does not require that the ‘‘ ‘ The EPA has theauthority under 1. Can the area attain the NAAQS bj, attlinmant date be waived indefinitely’ section -172(c)(3) to require periodic the applicable statutory attainment date (see’footnote23 on the effect of waiving’ updates of a nonattlinment area’s the moderate area attainment data), nor emissions Inventory to assure that the (December 31. 1994 for the initial ‘:,‘,, nonattainmeni areas) after- . . does it lessen the State’s obligation tO . , requirements of part D are met. The EPA, imp1em en g RAQvI (including RACT).’ strive to expeditiously attain the,.. ‘ plans t o use’thls authority to for-contributing anthropogenic and-’ perioditifly review the waiverstatus àf. ‘ln osee where it Is feasible to Implement .,. -. areas, as described above. A nopantbmpogenlc sources? -‘ m aauzes that will SdUC IUtWS atteinment date and applicable. If the moderate area SIP demonstratess OPO SfltC$O 5 (l 5 P n34ndIgreOus requirements should be relrthtated lIit ‘ that the area can attain with RACM’ vs etatloa Cr . .i.lt.M. U windbreaks), A baa ____ the suthoilty under ssctlo t88(e) to extend the.. -determined that nonanthrqpogenic ‘ (including RACF) by the attlinment’ analimient date k s serious area for up to S yesa ‘sources no longer contribute ‘‘ - date.Then the answer to this question Is beond met if it Is possible that the NAAQS could - si nificantiy or anthropogenac “yes” and the waiver pmvision ’are not -‘ - . be attained In the future. Such uzea should be coeaiddbySa reseekngwIv1oftbe0flthIs8 t Y.t0:. ,,app l i e. . . ‘ -‘.. .-: : ettainmstddatb, .,..-. .. . -- - ., - - vioLations i*i the area. “ - ‘ ILLIIO COOS I 5IS’lO ’P :,:, •- • - -.‘ .‘‘- :-. -. , - = ‘ - - .. •“. .‘ “ - - - - — - - - ‘ S_’b ------- FIGURE 1. WAIV ER .P LIcY,DIAGRAM - ‘ . . ..k 2 2 I- * U s - ’. • -, . • . •• - - . : • _- • . . .2Anththpe - ’; ________ after RACM (>5u i(m3) ? 1. Canarca • attalnwfth RACM? ‘ - •.: •Yes No waivers • - .. •• • . • ‘. i • • - •2 • I • .1 3. Nonanthr. pogOnIo: . soUrces. slgnfflcant? ’ (>‘ 18O’igfm3) C “ - , I , — , ‘1 - , ‘ . ‘ • • . LI • -, •2 • • .L’( . .t •••‘‘. ••. , I I O ‘ •. , •. S — . • - —. •I’ •, 1. I I . — •: . •:#ç -, .. — •. . ,. •I . •, —. •‘.• I I’ — • S - t .• •.. •.• •. L • j .. ‘ — ?. - • . . . • - •_¼ S •,.•• . • • ._ ij I .. IF ) I_’ .gy1 . _ I I — — ‘ 2 .2 • — — . ,, . ‘_:‘ -‘ -•‘ . •.; I, 1. - - ‘. 4NO: ,• ••‘• :‘ • — 2 . I I . • •• • • -• ‘ I - . - . 1 - • I c 5.Canareaattalfl’ ••, with an extension ••. - - of the attainment date’? 1 j No’ .4;L( L. 1. .. .1) No waivers •1 I I Reclassify area as serious 1. 12:. •I!• (Walve attainment -. •/ I - ‘ Grant an extension w/annualréduät loni •of eàdssbn ? I’ •‘ .• I. 0 0 S.- ’ ------- 42008 Federal Register / Vol. 59. No. 157 / Tuesday , August 16. 1994 I Proposed Rules - ‘Tho EPA may want a g e extension of the attammeet date for serious erees of no more than 5 years under the axtditiona of section 1 58(e) of the Act. Guidanc, on demonstrating that a State qualifies for an attainment data extension will be issued in the future. Z7 f an area Fails to attain the NAAQS by the end of the extension period, then the State must plan to achieve annual reductions of not less than 5 percent ot PM—iO and PM—tO precursor emissions within the area, as reported ut the most recent inventory (see section 189(d )). contribute to violations, to attain the NAAQS at any time in the future, a specific attainment date would not be waived. I ather, as discussed previously. the State would be expected to follow the provisions in sections 188 and 189 for attainment date extensions and continued emission reductions until the NAAQS are attained. However, if emissions from anthropogenic sources are reduced to the point that it is no longer technologically àr economically feasible to reduce those emissions furthei, and the area still cannot attain the NAAQS, ’thOn EPA may consider waiving the serious area’attainmènt date and appropriate serious area requirements.. V i. Best Available Control Measures A. Requirement for BACM There are two circumstances, as discussed earlier, under which a moderate PM—b nonattainment area may be reclassified as serious. I bst, an area may be reclassified whenever EPA determiea that the PM—ID MAAQS cannot practicably be attáthe4 by the’ statutory attainment date?’ Such a” determination may be madèbefdre the attainment date If a’revlew of the SIP for an area shows that RAQ 4,’ Including RACr, will not practicably bring the area Into attainment or If delays in adopting, submIttiii g. and Implementing SIP requ1re neths forinabasis for & to conclude that añerea cannot “ practicably Miali the NAAQS bj ’the statutory attainment 4ate. The second . circumstanà Is henithè area s, - reclassified by operation of law upon a determination by EPA that the,area has failed to attain the NAAQS oq schedule (seesectionl88(b)7 ’ ., Section b8 (b) estabjisbá di Ion I control requfrexni ats for PM-bO . nonãttaininent areas that are eclàssified as serious by.EPA Under sectionf. • 189(b)(1)(B); States must submit SIP.. revisions which provide for: .- . implementation ofthO BACM for PM—1O - emissions in thiCh areas. These SIP revisions must be êubmltted to EPA within 18thobth fifteranarea1j reclassified and must assure that the - measures are implemented no later than 4 yeaiu after the area is reclassified as serious (see section 189(b) ( ) and (2)). The EPA believes the requirement to implement BACM in serious PM-b nonattainment areas should, in one lespect, be interpreted similarly to the comparable req,uirement to implement RACM in moderate PM—b - The statutory attainment date for the initial group of areas designated nonattainment by operation of law upon enactment’of the 1990 Amen.Inw..,t’ under section 1O7 (d)(4), is December 31. 1994. If an area cannot attain by the Case #3 statutory deadline, then questions 2 and If anthropogenic sources contribute 3 on the waiver policy diagram must be signiricantlyto violations, but. addressed, and several cases may exist, nonanthropogenic sources conthbute 2. Do anthropogenic sources of PM—b less than 150 pglm3. then waivers will as a whole contribute signiflca4tly to - be granted on a case-by-case basis as violations in the area? discussed above in subsection C., 3. Do nonanthropogenic sources of’ question 4. The eligibility for and timing PM—to as a whole contribute - of serious area attainment date waivers significantly to violations in the area? • would depend upon the answers to the - last three questions on he waiver policy Case #1 . . — - diagram. - . . - 4. Can the serious area attain by the if anthropogenic sources no longer - statutory deadline after implementing contribute significantly to violations in the serious area control strategy (i.e.. the area after the implementation of - BACM, (including BACT)), for - RACM. then by default, significant anthropogenic sources? nonanthropogenic sources must If the State can demonstrate that it is contribute s ign ificantly.ZS In this case, possible to attain the NAAQS by the the moderate area attainment date may statutory deadline for serious areas be waived. The practical effect of’ the implementation of BACM, waiving the attainment date fo a then a waiver is not appropriate. If moderate area Is to relieve it from attainment by the deadline is not reclassification aS serious and, therefozer. possible, then question 5 must be to relieve it from certain serious addressed. , - requirements. Therefore, a moderate 5. C the area attain with an area may only qualify for an alfainment •extensloa of up to 5 years’of the date waiver If it alsó qualifies for a’ waiver of the serious attainment date? - • To answer this question, the State (sea section V.C.. quOstion 3). The ‘ must determine if an extension of time’: should reevaluat the impact of’ ‘ willmakeLttethno1ogicaI1yand anthropcgeiilc sources on the area -:. - -:economina1ly feasible to implement ; periodically to déterminb whóther or. . adthlional control measures that will -. not they contribute significantly to; violations.- . . ... - - - - • bring the area into attainment. Agam3f . - l itisàib1OfoattaintheN QS,then •-Caseii , . .: : :- . . a’ Ivertsnotippropr iate.If at’ainment is not possible even with’the -. If anthropogenic sources still .. -• extension of the attalnmenf - contribute significantly to violations In j allowed under section 188(e). then ” the area after the Implementation of ‘ —-questIonS must be addressed. RACM (Le., contribute OVOZ 5 pghn3 tO • . 6. Can the area attain at any time after PM-to concentrations),, then the 5r 5 ion deadline if emissions would be reclassified as serious. •‘, within the area axe reduced annually ’by Consequently, the serious area “ .• • - nt less than 5 percent? • ... . requirements discusseddn section w;’ ‘ To answer this question, the State obove. would have’to b Implemented’ . ‘ u detionnine if the implementation of in the afea. .These ré4uirements include. - additional control measures, annually. among other things, the application of “ would eventually bring the area into BACM (Includiuig BAC J on SOUrCe , attainment. Sufficient additional control categories that are still contributing’ measures would need to be significantly to violations (see the implemented to achieve at least 5 discussion ofBACMinkection VI and percent annual reductions in the ‘ - • footnote 33). - -• - inventory of PM—to emissions from Subsequently, the area may qualify for anthropogenic sources. - - a waiver of the serious area attainment If EPA believes that it is practicable -. date if it is demonstrated that - for an’area, where both anthropogenic nonanthropogenic source contributions and nonanthropogenic sources — (i.e., contributions greater than 150 ig/ m3) would prevent the area from attaining the NAAQS. - - -. lt is likely that Congress intended all areas— even those eligible For waivers—to implement whatever measures were reasonably available. Therefore, EPA believes the best reading of the statute requires that the emission reductions attributable to RACM (including RACT) should be considered before evaluating the signilicence of anlhropogenk contributions. ------- Federal Register / Vol. 59, No. 157 I Tuesday, August 16. 1994 / Proposed Rules nonattainment areas. Section 172(c)(l), word ..b ” and the overall sthjctijre environmental. and eco [ 0mm impacts which applies to all iionattainment and purpose of title I of the statute. - and other costs, determines is :- ‘ . - areas, states that partD RACM shall. B EPA’S Historical i i ,r . achievable for such faâihty through’ ‘ include “such reductions iii emissions Con ,1 Technology Ten tinology.-’ - applicatioa of production processçs and from existing sources in the area as may available methods, systems, and be obtained through the adoption, at a The Act uses several terms to refer to techniques * afor cäiitio’I of each ” minimum, of reasonably available different levels of emission control such pollu(ant.”Thus. BAd ’ is to be control technology a * a” Thus, technology required for existing or new determined for the PSD program ‘on a moderate PM—la nonattainment sources: “reasonable (RACT),” “best. . ca by se basis taking into account RACM plans, which are submitted to (BACT).” and lowest achievable - - the energy, ehvironmental, md meet the requirements of section . emission rate (LAER). It is helpful to economic iñi iac(s añdother c sis ’ ‘ i89(a)(1)(C), must include provisions.’- consider EPA’s past and current”-. section 169(3 ’also requir s’tbai BACT ensuring the adoption of pJ rJ ’ ( 57 . Interpretation anthmplementatlon of - be at least as fring t as ’anj FR 13540, column 1). -. - - these various control levels in - -- ‘ ;•‘ corresponding new sourcepeifian.i ’ Fdr moderate PM—b areas -. determinifig the control level ‘r standaid (NSPS) ’ör atlonal e flissIoh - reclnc cified as serious, the . . appropriate for BACM for serious PM t. t dard forh dous jjj • .eonatt*inment control requirements 10 noiiattainment areas. - -. • . -. .. “ - ‘ - - \ . . (i.e., RACM) are carried over and - The term “reasonably available” was - - -Under the PSD program,, BACF ’ .:ir elevated to a higher level of stringency applied to control measures and control applies thrOugh tructioli permits : (i.e., BACM). So, by analogy, t as - technology required to be implemented... issued to major new and jfl • ” RAQ’vl includes RACF, in the same , at existing sources in nonatfAinment s . lifie&iti ’areaswheró the air 4uahitji BAQYI includes BACFP Thus, just as - areas by the 1977 Clean Air Act ; Is better than ”ihe NAAQS (sèdtlou ;Y - - moderate PM—b SIP revisions when Amendments (1977 Amendments) (42, , ;e 165(a)(4) of th ’Act.42 us:c ’ Implementing RAQ 1 under section- . :- U.S.C. 7502(c)(1)). At that time, EPA 7475(a)(4))ljj broad àve vIii BAC1’ \ ‘ ‘ 489(a)(IXC) must provide for the.,-. . defined RACras thel west rnia ’ on-- deteiinined 1 adoption of RACr, cirnibirly, PM-1OSIP limitation that a paiticular-source-ja : : s. tethnolog revisions under seclionl89(b)(1)(B), -,. capable of meeting by the application of , , - implementing BAQf in oni us PM-b technology that is reasonably available control I nonattninmenareaè, must include considering technological and en ic 1 provisions ensuring the adoption of .. feasibility.3’ Control measures were. ;; ‘ , JiACF. This punt wa explicitly -: :. . determiized to be reasonable addressed I n the HouieC”nunittee ‘- considering their en gy the tecbnology. ’aud oi -, Repor&’ Seriouiixeas n ust Iñclud in . ‘ environmental raps d.thfr . their 6tII nI uiOfl provlsjons to require’. .. ann’ielf ed capital and operallngscst& ‘ l p1tal Bd 1 dà :‘ ,thatthe best available c mt nl 1 .Jn EPA’s view, the cod olusihg -ç4. i farth’e frcIlitWIlre a s1a ofâ or ’ for the control o.f PM-W n ions are. control measure is rimauLwed - * major äw facility or iaajor - Implemented no later than 4 years after re sönable if those same cods are borne., -niodlflcatioI of an existing rijt :: the area is rlacvffied or reclassified as by other comparable facilities. Sinca. .-- .: abould be considered as a portion of th e serious. Such pro 4 iisions must include . - Congress In the 1990 Amendments, did : overall costiof the new-facility ‘ “ the application of the b availahie . - not’niodify EPA’s Interpretations ci the. The term LAER refere t’othe level f 4 - control tecitnology-to existing stat onary RAQ4 and RACE In the earlier 19Z L . . control required t. keauj’i- sources” (H.R. Rep, No. 490,101st. - Amendments, it can be presumed to ‘- ‘- - preconstruction permit to’major new or Cong., 2nd Sass. 266-67 (•)) - have given some end .weennitt toEPA’s. - major modified facilities In areas wbsre ‘Although section 189(b)(IXB) requires definition of the term. - - - - - , ,. the air quality Is worse than the NAAQS’ BACM (including BAd) to be - . Congress defined thet n “best ,: - . (i.e., nonattainment areas) (se oi . -‘ - implemented in serious PM—b .- - available control tecbnolcsj” in section 173(a)(2) of the Act. 42 U.S.C. - nonatb% nment areas, the Act does no - 169(3) of the 1977 Amendments for Use - 7503(a)(2)). In broad terms, LAER is -. define either RAQ f / ‘ for p _ In implementing the requirement to - defined at section 171(3) of the Ad 10 nonattainment purposes. Where a prevent significant deterioration (PSD) the more stringent ami 1on rate based statutels silent orambiguouswith ofairquahity underpartC,tltle 1, of that oneither themost tringentState - respect to the meaning of a statutory’ Act. This definition was modified by -- emission limit’or the most stringent’’ term, the agency is authorized to adopt SOCtlOfl 403(d) of the 1990 Amendments. cpiisiion limit a hieved in pradiàe by’ an interpretation reasonably The BACI is cm ently defined for the’ - ‘ such class or category’ of source. Like - accommodated to the purpose of the - - PSD progTSifl as an PTnlscinn limitation : ‘BACr, the -LAER level of control must statutory provisions. 30 In considering based on the niaximumi degree of - beat least as stringent as the NSPS - iow to interpret the provisions - - reduction of each pollutant ‘a:. - - applicable to the source. Unlike RACF -. requiring BACM (including BACT) for emitted from or which results from any and BACr, the LAER requirement does - serious PM—b nonattainment major emitting facility. which the - not consider energy or cost factors. In EPA has looked at several factors: The permitting authority, on acase-by’.case general, the costs of achieving LAERm - way in whIch timikr terms have been basis, taking into aaount energy, - ‘ a nonattainanent area must be historically interprete I in other sections _______ - ‘ - - considered as a portion of the overall or titles of the Act, the ordinary “See. for example, 44 FR 53761-63762:. - cost of investing ins major new or grammatical usage associated with the major modified facility, as they are with - - - (Si FR 43514 (December 4, ga j BACT in attainment areas. The EPA nEven without the RAQ4 analogy, the best - RACr r quirements may be satisfied by echie,äng believes that t is reasonable to banclude available technological control measures by their “RACr equivalent ” eneission ctioiia In the that in selectina the term “best” to - plain terms ale a subset of the universe of best aggregate hem the full set of *wi i,ig - ,rnnl. , sr t ’nn f ,1PM b0 ‘- available control messuzes - - sources subject to those requiremenis (see also . ‘ - . - °Chevron, U . S.A.. Inc. v, Nctumlftesouxces EPA’s proposed economic incentives rule,58 FR senous nonattninment areas; Congress D ’fcnse Council, Inc,, 467 U.S. 837,843-44( 1984 ). 11110,11123 Webuary is. resin. - likely considered how thetermhas bee 42009 ------- 42010 Federal Register I Vol. 59, No. 157 / Tuesday, August 16, 1994 I Proposed Rules interpreted in other sections and titles. the reasons stated above, EPA believes reasonable to accord some interpretive of the Act. Several other factors - it is reasonable to conclude that . weight to this use of similar langu e.32 (discussed below) support such a Congress intended a greater level of Therefore, EPA’s interpretation ot conclusion, stringency to apply in areas that are BACM for serious PM—ID nonatthinment C. BACM for Serious PM-IC required to implement “best available’ areas will generally be simihw to the. Nonattainment - controls than in those required only to definition of BACF for the PSD program. implement controls that are “reasonably The BAQ4I is the maximum degree of A plain P.ngli h interpretation of the available.” - emissions reduction of PM—ID and PM— term “besV’ implies a generally higher As noted earlier, an array of different 10 precursors from a source (except as standard of performanrn than one that control measures is applicable under provided in subsection C. 3) which is may be considered “reasonable.” In various title I NAAQS.related programs. determined on a case-by-case basis. addition, the structural scheme A key factor, among others, In taking into a unt enelvj, throughout title I of the Act is to require determining the level of control environmental, and economic impacts the implementation of increasing ly appropriate for a given area from among and other costs, to be achievable for- stringent control measures in areas with the different emission control measures such source through application of- more serious pollution problems, vhile and technologies referred to throughout production processes and available providing such areas a longer time to title I is the severity of the air pollution methods, systems, and techniques for attain the apulicable standards. This problem In that area. In addition to the control of each such pollutant. For PM- structural wLme reflects a basic general categorization of areas as 10, BACM must be applied to existing underlying premise of title I. The ‘attainment,” “nonattainment,” and source categories in nonattaimTzent areas premise is (1) That more stringent “unclassifiable,” the Act charact& that cannot practicably attain (or fail to control measures are needed in cases - the severity of an area’s air pollution attain) within the moderate area when the current confrol requirements problem by classifying the area. for timeframe and axe rer -iotcifiedas - will be insufficient to bring a particular ex mplo, as “marginal,” ‘moderate,” serious .. . “.. -. - area into attainmant ; and (2) that the . -“serious,” and so on. As discussed As noted above, EPA will Interprat mole serious the air qualityprcblem, above, the different control measures are PSD BACF and PM—b BAQ’ 4 as - -, the more reser h1e it Is to require required tobe Imolemented as.follows: generally because,despito the States to lmpimnmiit control measures of For new (or modibed) sources, BACT iTnil ity In terminology, certain key. greater strI ncy despite the greater. . applies In PM—ID iiiw4it ffinMn and differences e,dd between control ... . measures are likely to attainnient areas under the PS1) . - measures applicable In the PSDand -. rnn The Ad stob iLmrn the program, while LA applie. In . PM-b serious $tntm,.nnt area greater bu*len Imposed In those areas - moderate and serious PM-ID - . . programs. The BACr under the PSD - wham inor. 1 s controls are. nonattainnient areas under the - program applies only In aloes alrády by the State nonatrainment NSR prcgram for - meeting the NAAQ , while PM—tO- al time to Implement them. existing sources,.RAQ4 (lndudIngf BAQ’vl applies In areas whlchare For example. under section 188(e) r RACF) applfà in moderate PM-to.’ r - seriously violating the NAAQS. This # EPA Is gI e ai thozky tb .. : nonattafnmdnt areas, while BAQA ‘ . di enco In p olIcy goals, rguably;-. -; dat for a serf ous PM-1O (IncludlngBACfl applies lit serfous- - . .. suggests that the PM-ID RAQ4 control- nonanalnmnna a e be ond -: PM-b nonatlajnmentareaa. In eith standard ahouldbé more strilgent than specified vicied .- case, the m&e serious the polIuUon: ’ - that foe PSI) BACr. (In the oth&hand certain ’ conditions are met OEoof thäsa problam, the more stringent thtcentrnl’ ‘the burdeu of Installing efficient ‘- . riwlitTtm* Is that the State must - -standard i%quired. - - - -. controls during construction of a - demoáratstô EP A’s .atisfartion that ; It is app&ent that-In requiring the. - source or source modification is - -‘ the)lan for that area Includesth mo application of BAO.1 to e dst1rag sources generally less onerous than retrofitting ‘stifirgónt measures that ire Ini4rnlad In :. In serloua PM-ID areas, Congress r an existing PM-ID sourci with t4mut p the Impleniantatlci p’an of any Stite or : Implied that these sóurced should be -- controls. If one compares both programs &eàchleved In a tice h any State, ‘ - subject toa moxe’stdngent level of’ - -. In tezmd of these iffe and can fericlhty be implnmnmtsd in the :.; control than the application of RAO -.4 regulatory and emnomic burdens and - ares.”.Thus unllsw this s ection, the Ad - required for existing sources in . the different policy purposes tend to provides such areas an opportunity to - moderate PM-b nonattaiñment areas,. - offset each other. Nevertheless, EPA :recefve additlonil time to attain the but not as stringent as the application of - . - - ‘- . - -. - NAAQ&Th. consequence of receiving LAER required for new or modified - - - nUnde, a . 1 I d dplesofstatutosy - -. additional time, however, is that the - sources in moderate and serious - lntefPZetatIon. sfpillarteiras l a statute r ” ’ ’ t , ___ .auggestaMmilar nIngendenag s ucyIs - - State must demonstrate that its PM-to . nonatrainment areas (or the degree at -. _ cot requirat. to give asimitir implementation plan contains the “most, control required to secure an extension m ningto similar terws which appnir Jo dllTzient ‘. stringent measures” that can feasibly be’ undersection 188(e)). - - ‘ - - paste of a statute. - - - -. ‘Tba term “coons categarici? In, which BAGS implemented In the relevant area front . - . - - win be required, refers to s1 . 5 , . oIarea-wld. - among those which are either included - in any other SIP or have been achieved In view of the preceding discussion, - - SOllIrm large individual stationary sourersof --PM—IOor PM—lO prec or cuuselcm that may be - in uractice b any othel stats. - - EPA believes that as a starting point in reguiatsâ un Iera .peci cruie, generic emission gimiLirly, the Act requires the - - interpreting BACM for PM-ID - limit, or.” ' ’d of performance ore specific application of control measures that are nonattainment purposes, it is reasonable - control Ice SIP. For assinpie. the SIP may, “reasonable” In moderate PM-b - - to consider the term BACF as applied in reguIate”” '° ’” from unpaved made. construction a ities,resldeiitial wood -nonattainment areas (RACM) and -. the PSD program under sectIon 169(3) aspizait concrete batch plante. etc., as - control measures that are “best” an analogue. Because PSD BACF and source categories. Notethat, in some Lnstsnmu. an (BACM) whenever a moderate en ” - ,. PM-ID BACM (which Includes BACT) - entire sourca category may coo of one large - -. -- g EPA believes it .-1ndividuaI stationery source that- Is regulated - - - • can_not “ iracticably’? attain or fails to— - - are simi!ar term, ..separately under the SIP such as acing!. iron and -. attain tho-NAAQ and is therefore - - -- - - . -- - - - - - -- : ‘- -- -‘ . the various - - xéclassiffed as serious Accordingly. for - - proemses therein. - ------- Federal Register I Vol. 59, No. 157 I Tuesday, August 16, 1994 / Proposed Rules 42011 believes that the differences in policy goals—i.e.. preventing further pollution under the PSD program and t-educing serious area source categories. Even if contribute significantly to a violation of the statute on its face were interpreted the 24-hour NAAQS if its PM—b impact to require States to impose BACM on all at the location of the expected violation existing pollution under the PM—il) nonattain nent program—counsel against adopting the interpretation and implementation of PSD BACT in its entirety for PM—b nonattainment purposes. Rathir, EPA considers it reasonable to use the approach adopted in the PSD BACF program as defined in section l69( ) of the Act as an analogue for determining appropriate PM—b nonattainment control measures in serious areas, while at the sanie time retaining the disaetion to depart from that approach on a case-by-case basis as particular circumstances warrant. source categories in serious PM—1O would exceed 5 pgfm 3 . Likewise, a- areas, the Agency believes, based on the - source category will be presumed to - decision in Alabama Power Co. v. contribute significantly to a violation of Cosde, that it has the authority to the annual NAAQS if its PM—Il ) impact exempt from regulation those source at the time and location of the expected categories in the area which contribute violation would exceed I g(m 3 . only negligibly to ambient Procedures for identifying source concentrations which exceed the - - categories that continue to significantly NAAQS. The EPA believes the court’s a t the air quality of a serious area test for invoking the de nIinimiic (even after RACM (including RACT) are exemption authority would be satisfied - implemented) and procedures for in circumstances where a State identifying the appropriate mix of - demonstrates condusively that, beciuse control measures applicable to those of the small contribution of the source source categories are disci issed below in category’s emissions to the - subsection E. 2. Preventive Measures . - . fbnat mmt problem, the imposition of additional controls, such as BACM, 4. BACM Analy is Independent of -- The EPA considere measures that on a particular source category in the . Atthinment Mialysis prevent PM-tO emissions over the long area would not contribute cignificanfly The overall structure and nurnn 1 of term (e.g., req ring gas logs in new . ‘t the Act’s purpose of achieving -.. title I of the amended Act, tl s ndard flreplacds) to 7 eferab1e to those atthinmm’t of the N4AQS “as.. . suggested by the.word “beât/’ and the- measures that only temporaruy expeditiously icablo ” The EPA. , differences In the statute between :. ___ of . will have to detnrmine i the recoul requirements for BAC ,f as a)mnaredio wood stove use uunng air pouutlon .. with respect to particular serious. those for RACM, lead EPA to b feve. -- epU flL I?i ! . M . area PM—tO source caegcries.which - - that, nnlflr . ØAQVI B Q.f am SourceS Waw i. &w . - contribute to mt. dons In j S of the established generally Independent of an; r nIve , an iys1softhe ’n’ needs of the ; - fewer f* eluan ‘ — - lngnl çant .. 1 . - . enfo ment, and a’tmn stratlon, ’’ - ) . , / 5 noted earlier In this aectlou.Ihe. - - ) .imnA. , .. lna e4 ’ . ’ n,1 t?’Y on overall stmuctu al 4u!ne throughout -‘ O r new soiu . . preventfoio ermitigatfonismdre- btleLoftheAeq th yiu t - ’ likely 10 bèbothómicaUyei d ‘ iiiiplamenta1ion environmentally benefidal over the stringent control measures In areas with . . .- .- - -- - -Un.4 proble ,whil :: -. ’ .. - ,. .. , . .. -. ateasadd1U.onaIthneto.A . 3.1rni c t ‘ ____ The BACM are reqüJrod for all Lv -. toughes measures arerdessued ne’ ’y categories of lourves In serious aie1S ., WO S 5 W 7 Ufl V! OU5CO in.eases where It ppeaI that leea . unless the State adequately ‘ • - pe mI r!ms.. - ill be b fOalimi to - .. demonstrates that a partlcular ’source. ; . , WPJV I WU? I! reduce nIcn onain an area to the level categorydoes not contribute:. ..- : _____ - of the NAAQS.-As described aboW, the.::: significantly to nonas* inmarrt of the - - ! . ‘ ! ! °‘ -°c ’ ot that the-Ad requires the applicaIloui - NAAQS. While EPA i gards the BACM of control measures that are ”-f J standard appiloablO InPM -1O serious pra . iM uIJr UAULW1 1 17 “ af le ” m tePM.-iO ames areas as more stringent control : UdW C iQ iOO and control measures that re best” - . - standard which calls-for a greater:de ree mat It usa anmu tO attain uy WsI ustO whenever It Is det rminnd that a of emissions control for the ource’ . The evidence whether modeled ° moderate area cannot praèticably’ - .. - categories to which Itipplies. EPAali m 1c?ie u? t attain or actually failito attain the-- . believes that it has the authority to limit. - ° “ / ,“7 “ Y! - - ..-. NAAQS and is therefore reclassified as theapplicabilityófBACMtothose. - Miuwelo On? e .p nw wiOr rserious;sronglysuggeststhatBAQ t1s- source categories’whlch ‘contributO ‘ °‘ mofore, u1 intendediobe a more stringent standard - significantly” to violations of the . P ! c3 caiesorvjs ‘ ‘than RACM. ThUS, it is reasonable tO- - NAAQS.TheAct leavesu nreso lvedthe - ooioe3 ,wmunpreSUflR u 0. - interpretthestatuteasrequlrlnga question of whether BACM is Intended ... - . . - . . - . -.-. different analysis for detiwmlning. to bean all-inclusive requirement - .. ___ : - BACM from the practice of analyzing applicable to every P14-10 serious area .tatuta -. . .-. . .d u h.ldI : - RAQvI according to what is ieasnn hle source category. It should be noted that whersaoncyia .in,ok1ng.do ’;nIm . - - - . in light of the overaWattah nw’nt needs In section 189(b)(b)(B), which contains -:- of the area.Moreover . wl en comparing: - the requirement that-serious area PM—i c ) bug yIeld. of .T .. e... the terms “reasonable’ and “best” as --. - SIPs provide fox- the implementation of - v Jue” (Alabama PbwerCo. v. Caetle, 636 F.2d 323. applied to control measures, the word BACM, Congress has not used the word 360-61 IDC. Or. 1979D. -, - -. - - . - . - ‘ best ’ strongly implies that there - .. -. -. - “all” in conjunction with BACM. - . - tlouolsnaficant - - should be a greater émpha Is on the J Congress has also not stated anywhere ___ . - merits of the measure or technology . - . - in the relevant law or legislative history-- o I miCulèncs NoabooLPN i&s - :alone amid less flexibility In considering that BACM must be applied to all - eO-12-1€ oo7. - . . . other factors. ------- 42012 Federal Register / Vol. 59. No. 157 / Tuesday. August 16, 1994 / Proposed Rules Additionally, for PM—la areas conditions of sections 108(e) and a. Major point sources (i.e., sources reclassified as serious before the 189(bXIIIA)(ii) have been mel with the potential to emit at least 70 moderate area attsiinmánt date, States I,. du for Determining Best tons per year of PM—lu (or PM—ID have up to 4 years. under SectiOn Available Control Measures as required in sections 189(b)(2J, in which to ubmit their 189(b)(3) and .189(e) of the Act). serious area attainment demonstration. 1. Inventory Sources of PM-Ia and PM- b. Minor point source categories. However, under section 189(b)(2), States 10 Precursors c. Area source categories such as fugitive dust from anthropogenic have only 18 months after The flAQ 4 (including BACF) - sources (e.g.. construction activities. reclassification from moderate to senous applicable in a nonattainment area must paved and unpaved roads, agricultural to submit their plans requiring the use be determined on a case-bY-case basis activities, etc.), residential wood of BACM for those same areas. Thus, for since the nature and extent of a combustion, prescribed burning, and such areas, Congress provided a nonattainment problem may vary within commercialllnstitutjonaj fuel - difference of as much as 2½ y s the area and from one area to another. combustion. between the required date for Nonattainment problems range from d. Nonanthropogenic sources. submitting BACM plans and the date by reasonably well-defined areas of which to submit a now attainment violation caused by a specific source or 2. Evaluate Source Category Impact demonstration satisfying the group of sources to violations over The second step in determining • requirements of section 189(b)(1)(A).. relatively broad geographical areas due BACM for an area is to identify those This pronounced difference in timing - predoimnandyto large numbers of source categories having a greater than for the serious area submittals described small sources widely-distributed over de Ininimt impact on PM-1O aboveis to be contrasted with the timing the area. The SAGA are required for all concentrations. The potential maximum for submittal of niInr provisions for source categories for whI b the State impact of various source categories may moderate areas. Under section 189(aX2). - cannot conclusively demonstrate that have been d prninnd with .receptcror both the RAQ4I plans and the •. -. their impact lads TflinhnI M d • dispersion modeling performed for the Rttninmant demonstration for moderete ab ve, the EPA will generally presume attainment demonstration submitted PM-.lo areas must as a general matter be the contribution to nonattainment with thein.oderate area SIP. In addition.. ••j at the same time.The -.-. any uce iybb.de mfnbnic if the Impact of some source categories. that the Act requires BAQ4I to be .. - the source catago y causes a PM-lu n y be avi t1 11t from ax alyals of Imp 1 sne by an -. unpact In the area of less than 5 pg/rn 3 ambient sampling filters from’days • appreciable tlme),efore the idtainmm t - fore 24-hour uvma and less than lpgl when the standards are exceeded. If demoi stratIon Is required, for areas thai - m 3 annual moan concentration. The modeling was not performed durlng are rei fled before th. moderate area - starting point for making a Ma v• development of the moderate area SIP, - ansInin Int date, suggests that Congress- deteTrelnaffim would bets reevaluate-- receptor modeling saeening modeling Intended th t BAQVI determinations be 1. the emission Inventory submitted wlth- or. nreferably refined j _• based more on the feasibility of . - - -. the moderate era SIP. Section 172(cX3) moäeling will generafly be ne e eryat- • . ce l ia for all - . . this tune to Ideal fy key source _____ & -. r ”categor les. -...:- -. ‘- .... -. : - of the azea. ’ Therefore, the steps .-: LaCairate end minent 1 ° - Y’ - ‘- 3. Evaluate AlteinaUve Control - .dthedbeluwforningaBAGA inventorfáa dprovldesforeuth -‘“ : - dte atlifli are Intinwind tobe carried peslodlêrevfsf one as mai be ne’ . - In developing a folly adequate SAGA - out Independently from the analysts to :‘ to assure thatth. nonathilnenent deten- 1 ns - planning requlrenrá’nts we met If there- SIP, the Slate Is expected to evaluate the wduld be nâi, eeary to#tain tho - have been any ilgulficaitchangas hi technological and economic feasibility - . - _____ of the control measuies discussed In the -• NAAQS by the sI tnt . y ia i if the ?PM-IO soui In the area since - . BACM WgiLiTlnO documenters and olher - aftá4nnient demonstrathm inventory i áfirdw ,lled(lA, ’ relevant materials for all source. - subsequezitljshows that -: sources p...rnrn ntly ’shut down çr new •bring the wee Into attainment before the or modified sources óonstrrü ted) or if categories impacting the nonattainment area except those with a domfrrimie _____th the plan •: .the Invàtcry íó not adequate to suppoit unpact miciering amianion rermnratons - provldes for expediliousattainmentof . the more r1 uwus analysis required for -: achieved riIh RACM. •the NAAQS. However; If the BAGA are --serious area S W demonstrations, it - and ávironrnental iirpactspf. not adequate to provide for attainment - should be revised. All anthropogenic the control measures and the cost of. of the standards, then’ the State must sources of PM- i D amfe cions and PM-IG control should be cm c ,1aved in submit additlonalmeasuzes with the . ‘pmoUTSOIS(ffappliCabIe) and. - determining BACM. Iii genexul, for the - attainment demonstration that vill - - nonanthropogenic sources in a reasons stated above, the test of result in alt*,.ment of the standard by nonattainment area must be Included in economic and technologiial feasibility the statutory deadline or appiy for an the ennianion inventory. “- be highsv for source categories in - extension of the attainment date by -. - • Because of its importance in - - - serious areas than for source categories dexiionstrating that the specific . - idea Y 6 anthropogenic in moderate areas because of the greater - - .‘- -, . - - . - nonanthropogenic sources and the -- - — - - - , . - applicabilityof BACM requirements, the raThe EPA beftereath nierpratadon of the breakdown of sources to consider when - WcoáC mtireaflon Brat Available ii asea I L as toar which am - - classified Is the future as earmorm FM-lU ‘-- -. • compiling an emisslon% inventory ire as Control Meaamea.’ -45WZ-92-OO2 Ssptonber areaeb.cauie ibs.r,as have -. follows - - . - - - - l9 Preonlbed Bunung Bacigmend raI - - to attain, the data BAQd must be eubmitred. - - -. - - . - T , ’1n I lafunnailon Document flrrBeM Available -and the data the .erfous area attainment - - ________ . . - -- - Control Men A—45OI292-eO3 September - demonstration Is du. shoud ,eurtoonindde. - - filter analysis and inventory ‘ . .1992; and. “Fugitive DrrstBeckgro ,md Document There is no rational brat, IcrlaterpretiegBAQ.4 - - informatfoa nay have been presented in certain and Technical inf ation Document he Bed - - d1ffez n2Iyr dapendiug merely on when an extra - - moderate area SIP to indicate the Insignificance of Available Control Measuies. ” EPA—45012-92-OO4. happens to be reclassified. - - - — - serendary particles (see 57 FR U541-42J. - ‘September1992. ------- Federal Register / Vol. 59.. No. 157 I Tuesday,.August 16.. 1994 / Proposed Rules 42013 need for emission reductions to attain The technological feasibility of funding aniLinciease the priority for use the NAAQS. As noted earlier, this applying an emission reduction method of existing funds. interpretation is consistent with the to a particular point source should The capital costs. annn I(’ d costs, - overall statutory scheme- which requires consider the source’s process and. . and cost effectiveness of an. em oa that as an area’s air çiality worsens, operating procedures, raw materials.. reduction. technology hontd iu siny)y stringent control measures physical plant layout, energy considered indeterniining its economic aie to be adopted in con junction with requirements, and any collateral - feasibility. The “OAQPS Control Cost the area receiving more time to attain environmental impacts (e.g., water Manual, Fourth Edition,” EPA—45013-- the NAAQS. Thus, measures.that were pollution and waste disposalJ The . 90-006..Lanuasy 1990., describes not considered reasonable to implement process. operating procedures, and raw procedures for determining these costs. by the moderate area attainment date materials used by a source can affect the The above costs should be detennined maybe BACM for serious areas because feasibility of iniplwwuting process for all technologicaliy4easible emission of the additional time available for changes that reduce u iu s and the. r ”stion option - .. - inrplementingthean and because of selection of add-on emission u ttol E SeJ ’ecti ‘HACM” the higher degree of stringency implied equipmentThe operation and longevity . Ofluj jOF wrk OUrC5S by the statutory scheme and the term of control equipment can be . Once the srgniffcant PM-IG area “best.” Therefore, BAQ f could include, significantly inihienced by the raw so ice c ories have been identified, though it is net limited to,. expanded use materials used and th P1oC SSto the State should select area source of some of the same types of control. . it is applied. The feasibility of control measures from the candidate. measures as those incrucied.as RACM in modifying pr sses or applying control BACM listed in the technical. the moderate area SIP. equipment is also influenced by thor. information documents for fugitive dust., physical layout of the particular plant. . residential wood combustion uwci... LI flui uu uy appear LI . . ob” distinct fin The space availablormo which to pi uucu uurnrng, or any ., i i mplin t thai y limit the’ t 9 n tfnfn1,n2tfofl dornnwmt issued “ Z’ ° 7 . chseces and fl)’ the . by. A (See footnote 38) This gnid’ nrn conwuuw yto wi r -1O air . - is based on EPA’S analysis f fT hta q p a - . . . 1 z - control alternatives for the fdentlfied of areas to warrant issuing national 4. EValuate Costa o Co ol - source categozi s. While the gufJanre guitI. on best air .i i -. . Frnnninfr feasibility intend d to be arrnprehensfve,: It is by ransportation . Ai 4meemreskr ‘ ‘- (Z of md ming enifedmis fl u a:.; no ana exhaustive. Conseuuiitly, tbe . 10 midas —‘ t’-. i I9Orcf the AcL -‘ partiml& .. . ceteg y aridooste State is mn ajed to f er dbea Howeva ,. hi these erase where reobsie - hetJm u’ sources âf Information and Is not. to implemented ..I .if ’uidiw’& as:. precluded fiemaeJectfn thea measures PM-b v hcni , the State must, at a with RAC1 ‘ ls .— ’. .-. and BAC I and deuronsfiathig to-the pithlicüd- .aild,ese t pozt a t lc La hioth .. ’e y . . .EA thatthey’óoiistftuto BAQ L- ’ .’ aiea was listed In. section 10 1U conteatA i Fwther nyamn ol measure thaf a5 ’ : to A such rneonues are BAQA p u - . . ...sb4t1sI ... .-- lekr a.;: (düz1ngth oubffc ’ achievable in the area amsaderiiig, - cimltar séniem tobeer .1niih ,p ants of : fez & give& eney.nivkoflreentaland eceuomrc ‘ - . -- . - - Impacts end esbai’aists. -. - - :- - _________ Thi edthotcgica} fea Th t ’of . . eamew lity -- LI? ,m,.,glOflS fime area sources rishn th,gil sou i s - depends on theebflityto altar the particular source to.’a r to reduaa. .. whetherthe a ia1lab!e inessurâ charactesiatfer that —- .. lfçl a Ievab!e thø f’ -: -:. fron i the su OtheswIse laai - . IT 5 iniglif.,. . .enèrgynvIimentalideconomla- • have to d6 with the sizer or extent àf thi . be! zded fee the impacts and oco : j ___ hemp asesi in beer lower en .. - Asstated earlier,, EPA considers and the op tLe 5 u . dtu & . Reducing-- reduction costs. lnstee&ocanw.u - t1mtpx i’ utPM-1O emissionS: ___ - . fe liyfeeP)4boBAC 1 p uhl4lecs . over the- long term fohe preferable to -. construction activities, for example. ‘- shoulel feces upon evMit,w* that the- . : short-term qntathpont measures. could reqsthethe ñost effective - ‘ - C0 3t O t”th oLcgyl1 q iiesdon has .: Thdefore,-when. se lecthg BACM for, combination of reducing the sxmof the- previously been implin enh .dat other ‘area sounns..a State should first . -. sources (Le, acres cleared at one rime or sources in a -. . consider pollutfoit preventive measures vehicle miles traveled ounpaved without on e k4 •. and measures that provide for long.term surfaces7, changing thorphysicat. • impacts. . - . - - - . - .:. ... -. .. tamed progr toward ut in iadensfxon (i.e., Silt loadIng on travel Where the economiclaasibthl3rofa. -preference to quick, tempoimy controL: surfaces or moisture content of materials measure (e.g... road paving) depends on •- For example, a Stats should t mii iiic . handled). andlor changing the operating PU C funding. EPA wil klei past . requiring the replacement, over tim of. practices (i a, luwe r vehicle i funding of dniil activities as well an old wood stoves witke’h .an r-burning surface area èxposOd to the wind, - availability of funding sources to ‘ - wood stoves or alternatha fuels. &rcb... treating or paving travel des in’ whether a good faith effort is . programs would complement apd.. - - being made to expeditiously implement reduce dep nt1 re on woo burning The sfatutory auai meat ate For the available control measures. mother -, curtailment programs adoptedas RACtI. - msierate pt,c-io m Ilainment a grecla ,sified . - words, if 20 miles of unpaved roads are for the moderate area SIP. However,. - 03 s ioui will be 0.’.’ ” ’ — 31, oL Foe oes typically paved each year. then the. .. EP? reccgeizes that wh - de gnatednonattarnmentsubeequent to enacreent BACM fugitive dust program should • - measures may entail significant lead. - nent data or 7 7 include paving more than 28 miles per . • time and that temporary measures like. - Year bea nn [ ng afle, the e, ’ - year of existing roads and shrndd offer wood-burning curtailments may need to - flOflaflajn nt (see sec ou 1881c)). evidence of ambitious efforts to increase be continued in serious aleas; at . - ------- 42014 Federal Register I Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules minimum, to provide interim health BACM examples to complement the representative range of available protection. RACM prog ram: 4 ° - controls (including the most stringent. Once the list of available measures for i. Pave 10 miles of the most heavily- those capable of meeting standards of an area source has been identified, the traveled, unpaved county roads, performance under 40 CFR part 60 or State must evaluate the technological 2. Treat 10 miles of unpaved county 61, and those identified by commenters and economic feasibility of roads with chemical dust suppressants during the public comment period).. implementing the controls. The State once per month. . Selection of a particular control system may refer to the technical information 3. Pave 25 unpaved couniy roads as BACI’ must be justified by a documents for procedures to determine within 500 feet of their intersections comparison of the candidate control feasibility. ‘ with paved roads. systems considering energy, ‘ - When evaluating economic feasibility. 4. Chemically treat or pave both environmental, and economic impacts, States should not restrict their analysis shoulders of 30 miles of State highways and other costs, and be supported by the to simple acceptance/rejection decisions within thó county. record. - - based on whether full application of a, 5. Pave all parking lots within tile ‘ In addition, if the reviewing authority’ measure to all sources in a particular . - - ‘ .‘ determines that there is no - category is feasible. Rather, a State 6: Revise the specifications for winter economically-reasonable or - - ‘ - should consider implementing a control anti-skid materials to reqwre cleaner, technologically-feasible way to measuie on a more limited basis, e.&, hem friaj,le materials, and reduce the accurately measure the emissions, and for a percentage of the sources in a quanffly used per lane-mile.’ hence to impose an enforceable category If It Is determined that 100, 7. Require aop rotations on highly emissions standard, it may require the percent implementation of the measure erodible lands. source to use design, alternative is infeasable..This would means fot ‘ . 8. 1rb highly erodible sedions of equipmeat work practice, or.’ ‘, example, that an area should consider fer jand and n t indiapnous operational standards to reduce the feasibility of paving 75 percent of: vegetation as cover ins ead of leaving emissions of the pollutant to the the unpaved roadways even though, land fallow -‘ maximum extent feasible ( jiy : paving all of the &eads may be- ‘9. Plant aops and windbteaks across °8Y ’ 4GCFR 2.21(b)(t h 40 R:’ infeasible, Alternatively, the State -‘ “ wind direcii ji n hi hi’ ‘ 51.166(b)(12fl - .‘ • shouldcousjderwhethermeasures’ ep elande . -. 0 O• ,Altemativeappretháto educj g...... which cennot feasibly be’unplemanted - SIAIO’IIIUi d t one of partlcula a matter-. .InTheIX enthety priorlo the atutoiy ‘ so BACM h. , ‘ ‘inchiding’PM—io are discussed In 4 adl fozBAG4 emUñ— j’ ‘ntr g mó t ” ä lihbfe : :‘.• - rQmrról.Technb ues for Pa ktd -. ’ se mrn1m dFheconfrol OlUin &-450F3 70O5al and be defined to thanga DVOL time from a. ,’ mea ür se1acted sliouM pi efeiablj Volume I I 50I3- 1-005b) s - . more hlqiite set,of measures at,the ‘ - ti t ,ai • .., September1982. The deeigncoperation ,: initial Jtnplom ntaciou date.to a.. - L Th 4i amLmaintenance of general part1celate ’v ’ p o es&vely’$ghte*.orinori ambitious d floi =to e 0f er san pacts an The collectiol efficiency of ea em - BAQ 1 after the area is rerI sjfled as, F. Selection of &4CT for Point Sources ,, size Information Is also p.nt d ser4ou .Assumejhat the followiug, ... ‘- .The ‘viewl g authàrity determines regardingenergy and envirimmental ontivl measures were adopted as , . . a ,. .. .- . - consldern’iqns and proceduru fo -.... .RACM ’..’ .- . . , ,‘• “desTIbedabow frAwould i’m” the - matingcostsofpar(iciilatamatt 4 1. Reduce thQ’sj aedlin lt n uiipaved reviewim, aiithoitv to’select control equipment The m t sion countv’roads,,to 25 miles per hour..- ’ :.,. - ‘“° ‘that fl d the :. - characteristics and control echinolcgies. - 2..freat all unpaved county roads, I WTIISOD re Iuction ’ applicable to specific source cat gorfes 1 monthly, withthemicai dust , f . h . aedisais ed’i Vo1umefl. .i. rj . suppiessanis eitljIn 500 feé(of h!fr.’, Pl.l0pr ), enxironmental unpect are also -intersections with paved roads.’ . . . ,: ..‘ • .-‘. - - .;.-•... ‘- discussed, - - , .,, -- - , . .,,. 3. Treat 1O’miles of the most heavily-. - taking into account energy. :‘.r.. •‘ -: : - The BACr/LAER Clearinghouse , the. iraveled unpaved county roads - environmenias, and ea)flOIfllC impacts EPA Control Technology Center, and - - chemical dust supprassant once. per and other costs, that it de rmij es -. past BAC analyses for new and’ — - - - ‘ ‘- - . • . -- ashievabl 1br such facility. . monw. - - - — - - - —-.. rn major sources Un , - 4. Pave 4 miles of a e I ity . program may be used to assI t In’ streets. ‘ - - BACI anu its statutory . it is , s - iden available control options • 5. Tteat unpaved paiking lots in the policy that BACT be deiermine4 ‘-and maximum achievable rnimion city with chemica’I dust suj jress nts he analytical methodology estabhshed reductions. The EPA wilfloutinuétâ” once per month. - - ‘ - in the reviewing authonty scurrentPSD - evaluate the need for additional ‘ -. - 6. Clean anti-skid materials from 50’ program to the extent that it .-- guidance and will produce additiona] miles of city streets within 48 houis ‘consistent with guidance coi ! ned ‘n’ ‘mate as qipropriate. after snow melt begins - - this notice. The analytical zneuiodology , - - The same area, her being reclassified used should, at a minimum, consider a VIL Contingency Measured - - as señous, may adopt the following ‘ ‘ . •. - . - . -: - - Section 172(c)(9) requires that SIP’s -‘ ‘ °Adoptiin of these types of measures 101 )’ ‘ nmvide for the imnlementation of equIecoodinst1onwithotherIo lgovsxnmt,juul r - . r L entities cb the De ns of jku . - . speciuc measures tO tie Un Transpoztation. endior the Interior, the Administrator finds that the - ------- Federal Register I Vol. 59, No. 157 / Tuesday, August 15, 1994 I Proposed Rules 42015 nonatfaimnent area has failed to make about attainment. The EPA has. Section 171(1) of the Act defines RFP as RFP toward attainment or to attain the recommended that contingency “such annual incremental reductions in primary NAAQS by the applicable measures provide the emission emissions of the relevant air pollutant as statutory deadline. Following the reductions equivalent to 1 year’s average, are required by this part (part D) or may Administrator’s finding, the measures increment of RFP (see discussion reasonably be required by the are to “take effect without further action below). Administrator for the purpose of by the State. or the Administrator.” The Once moderate areas are subsequently ensuring attainment of the applicable EPA interprets this requirement to be reclassified as serf o t is. the affected national ambient air quality standard by that no further rulemaking actions by States must ensure that adequate the applicable date.” A discussion of the State or EPA would be needed to contingency measures, as described these requirements follows. impknuaf the contingency measures above, are in place.for such areas. This (see generally 57 FR 13512 and 13543— is explicitly required under the statute. Reasonôble Furrnei Progress 544). The EPA recognizes that certain Section 189(b)(2J requires areas . -. Historically, for some pollutants, RFP actions, such as the notification of reclassified as serious to submit “an has been met by showing annual’ sources, modification of permits. etc., implementation plan.” Under section incremental emission reductions would probably be needed before a 172tc ). in turn, “plan provisions” sufficient generally to maintain at least measure could be implemented required under part D must provide for linear progress toward attainment by the effectively. However, SPates must show the implementation of contingency specified deadline. Requiring linear that their contingency measures can be measures. Accordingly, for those - progI reductions in emissions to implemented with minimal further moderate areas reclassiliett as serious, if RFP may be appropriate in action on their part and with no all or part of the moderate area plan four situatiorue’ additional rulemaking actions such as contingency measures become part of 1. When pollutants are emitted by public hearings or legislative review. the required serious area control - numerous and diverse sources. - After ‘A determines that a moderate measures rio.. BAOM. then additional 2. Where the relationship between’ PM—b nenattainment ama has failed to contingency measures must be any individual semen and the overall attain the PM-b NAAQS, EPA - submitted whether or not the previously air quality Is not explicitly qwtffi ’ generally expects al l actions needed to submitted contingency measures hail. - 3. Where a chemical trunsforrnatloa fa effect full Implementaticoofthe : already beenfmplemented.Further.the Involved. ,. . measures to ocous within 60 days after affected States must ensure that serious.. 4. Where the_m . ,.ion duction, EPA notifies the State of the area’s ‘areas have adequate cnnthi mi ’y . n ’y to attain the standard failure. The State should ensure that the measures l ring ilthnng other . inventory’Mda, -. . measures am fully Implemented as things new laf .about.the •. . For example. In those areas where the expedltfouslyras practicable after they potential nifainniant shortfall for the. nonattalnment problem is attributed to - take effect. , .., . . newly rer ’lacsiffed seriou&area. The - . area type amones (e.g.. fugftlve dust, purpose of am’ingency StatesthuStiubmitC qtbger y residential wood combustion, etc.). RFP isto ensure that additfnn 1 meamma ,’• measures for serious areasé otherwise . , should bernet byShow -P:’ ; . beyond er in. addition to the reçured da,nimatintn thatadequata meec’ms axe, incremental emission reductions - ,r”coI ? ’ controlifleasures Le. RAQ4 fox i pla itbma3 yeaxs of - . ,... ‘sufficient generally to maintain 1heer modeiat,areas and BAQ4 for serious’ • , reclass catroni’, ?.j d” - ‘.- -‘ “ progress luw de Bftaanm I$ Total PM-, .... . . . .j; - . , - — i_ areas) Immediate ly. take effect when th&. L 1 ew enseiwwu : -. area’ fails to make RFP or to attain the . — FUTtherPVR - en or mqease note - yew me, PM— IONAAQJinoxdertoprovide , ‘ ,- .: - - -‘. -., “ - . . ‘: neXtin5iiChai afee. . - .. ‘, Interüñ public health . . .. A. GpnamED cussiost. .; . ‘ - . .,Requlrlng linear progress reductlons” protecthm.leprotedfcalsconsidered ‘-ThePM 1On edia ’ nntssit area SIP ’s - in emissions to maintain RFP ! Tess “Interim” because the statute often ‘ -‘. - - mueti Ud.y—f jW La 5h. . ..5 , , - appropnatem ‘ provides for amare formal SIP revision .. wbickaetGbsathissmd • . 1. Where these are a, limited number, in order to comect , for example, the ‘ ‘ . . r’ unIlithe area Is re l ., . ,mLnll attaisnnn ’ of souzces — . failure of an area to attain the PM-b ‘ - and which darn ustinte REPtewerrI.. . , 2: 1ui*0 Pa between.: ‘ ‘NAAQ$ g,. section 189(b)—seifou, ’ . attainme’ii by the ap ththbM date (see ‘- idividual s’ iznes and air qualityaze-: area plan required upon ln’ting ci ‘- sectIon 189(4 of the amended Act).. - - relatively well deflned. - failure of moderate area to attain .. , - - . - . , - . - 3. Where the emission control systems PM-It) NAAQS under 188(b)(2)—and - im , Act esno, prueni e utilired (e.g.. at major point sources). 189(d) (plan revisions required upon. States nontaini gsuiemPM-1O will result in swift and dramatic failure of serious area to attain the PM- &eaS shall aubinit aedlon 172(cXelcoatingeacy emission reductions, , - .10 NAAQSfl. Thus. EPA has noted measures (or othezwl3a demO I S I S thatatteq ale For example, n thoie ames where the - wntsnget mc ’ e s ,ahe sdymp1aes) • previously that contingency measures I ,sscttea i72 l ofthsA 5 &acts this - nou.uarfllflenapwuiem is should ea ict of other available control Mminbiemtmz iiha athedele Sirm teat. - attributed toa few stationary sources, • measures conlab i i - of the plan Items in semsion 1 72( c) at. the time the REP should be met by “adherence to an. - - , Adminfamator designates ánarea as nonattainment. i.i P kA i ” .Q applicable core control strategy (57 FR Such schedule is to h dea date-ordates - . . aini CflP w • .. - 13543). in designing its contingency - “eatnuli ooI rthet3 , which is hkely to periodically yield - - measures, the State should also take into- ib,iimsPJlmnanIde.i.pSIte (y.e aectios Z72 significant emission reductions. ..- - - consideratjon the potential nature and concludes lila icesonable to Adherence to “an ambitious complisuwm extent of any attainn rnL shortfall for the c aijfm rma1.deadfine-forthea?b1nIuat schedule” does not necessarily mean o 1 C ,contzngenclmeescres 1 ora I. • LI . . - area. The magnitude of the effectiveness demonstration that adequatea thngency mneemuea ‘ is WOwu unreasolldrne iO.aasuOYO tof the measures should be calculated p are to phee) byS ainingrenomas PM-b - .‘ . - . . - i .chlevj the avmrnnrjate nercentaae of - nonefliamneamiageas is o IaI than 3yoaa from . “U.S EPA. OWns oIAiz Quality Plaoning and ‘. Yr - r ,r • the det oFtheemo ci redasailimibim (see ‘-,. Standard, ,’Cuidaum Docun t incCoercctioao(” . -we.actji l emission. reductions required che.ia . U.S.A.. Stmc v. SteOC 467 U.S. 837.842- - ‘-l ’art 0 SF5 for Nonatza inanent Areas.” Rescamth - - y the SIP control strategy to bring - - 45 fl9sI - ... . ‘.. . . : . ‘.. ‘‘ . ‘Triangle Park. NC. anuary 27,1984. pap 25. ------- 42016 Federal Register / Vol. 59; No. 157 I Tuesday, August 16, 1994 / Proposed Rules annual incremental emission eductions b. Percent coçiplia icq with for the moderatearea SIP.’ 3 ’rherefore, - or generally linear progress, however. impIenient d coitrol measures. the second REP/milestone for the initial’ The SIP’s for PM—IC) nonattanment c. Adherence to a compliance nonattainment areas that are reclassified areas must include detailed schedules schedple.. •. . -. . - as senàus must be achieved by. for compliance with emission 2 REPfl ileston DU November 15, 1997. The third RFP/ regulations in the area&and accurately milestone achievement date will be indicate the corresponding annual I • s mentioned above, PM—iC) Nmrember 15, 2000. etc. These REP! emission reductions to be realized from flonat :SIP’s are to, contain . milestones should be addressed by each milestone in the sch dule. quantitative n i1estones which are to be quantifying and comparing the annual reviewing the SIP. EPA will determine, achieved everY 3 years until the area is inc menmi emission reductions which- whether the annual incremental -. redesignated attaitiment. rhere is a gap ‘result from implementation of HACM! emission reductions to be achieved - in the law iztth % thetext pf section - BACT (req i ed within 4yeara after the reasonable in light of the statutory .. . -189(c) doe not.ai iculate the starting area isi eclassifiid as serious) and from obj ctive to ensure timely attainment of point for count ng the 3-year penod. .. additional, measures included in the the PM—10.NAAQS. Additionally. EPA The EPA believes it is i asonable ° • final erious area SIP to those: believes that it. is appropriate to rquire beguicounti igThe 3-year milestone reductions which wore identified in the early implementation o(the most cost- deadline from the due date (and not the SIP’as quantitative milestones necessary effective control measures (e.g.. submittal date) for the applicable to achieve the NAAQS by the applicable controlling fugitive dust emissions at morale area implementation plan attainment date. The annual the stationary source) while phasing in 9 IOn (see section ul.C.I.(f) of the incremental emission reductions must the more expensive control measures,. , General Preamble (57 FR ,1 3539) for an be sufficient to assure attaininent.as such as those involving th inllatiou explanation of why EPA ‘beheves itis expeditiously as practicable but not of new hardware. - appropriate to begin counting the 3 ’year later than Dece ber 31, 2001: In some • Section 189(c) ro des that the . milestone deadline from the SIP due .‘ cases it may also be approprtate to qiiantitativemilestànes ubmittedbya.. da . • , , . • 7 requuethattheannuallncrementai 1 . State for an area alio must be consistent’ w t RFP,mi estone emission reductions maintain at least with REP for the area ,Thus, EPA w’nll achievement date for those areas -,- ‘t am enl. a... determine an area:s compliance with. - . u7ueSigflatu . as onattaninent iOT . dis us ad earlier., • . . irwi.—lu u OperauOfl OL aw WuCfl .e - - REP In.conjwiction tvd determining !b . Mt was amended will be ihe moderate 3. RFP/Milestt e-Reportr. ’ ‘ ‘ ‘: áreaatta4nmentdateofDecembei31, ‘ The SfatimusideniOnsttatetà PA, uuw iOflO . iu.i .men USO & ‘ 1994 as’stated in section IILC.1.L of the’ tliffl 9t day&aft r the mj lestone ’, . ,. ,5fl flfluw UU &Ofl u uUi.uOfl ‘ :‘ - - Ceneral Preimble (57 FR 13539). The àchiev ineñt da(e, thaE tho’SIP measures’ j u ument afluwe quai t1tauv - RFP!milestone achievement date would are befng.tmplemeilted and th RFP/’ u4Ita oneS ao ue acjLuevuu ayery :normilly be Novenil r 15.1994.3 years qua tnatfvd milestones have jf years, wuena te uernoflstratos an - ‘ after the SIR due’date of Noveiñber 15, isee sèétiou”t89(c)(2)) The RPI- ,.ras c oz a uanCp.wIuL usO quanutauve -‘1991. The i hinvement dale was ; - ‘ milestone’re iort must be ub in1tt&I .nulestonerequuëinent. tt,suuuiu ‘ ‘- delayèd46 days, however, because’ the ‘froin’thb Co verirnr Oave ’fliofe ’ emonstrate ‘? de’miaimic HmIng differential between des nee’tô tha Adm1nst ifóf ’ .Unngeacu -O weiwevant 3 ,.Yeary. “f’the attainment date andihO literal first “ of theles il EPA Reglätial Offi ’& “ uUS, u e ui u ioao quantitative-; milestone date madeft administretivoly’ whid servãth State w eréthe ” ”- .iuiiu tonesuwowreiers to we- - Impracticable and of trivialvalue to ‘ affectedireaislocmte& ‘- ‘, ‘ ‘ ‘ •mllestOne submittai milestones and’ ‘ The REP/milestone repdit in ’uM ‘: - - acq 5 rvemeflt tastes ants uemoflstIab9Ji .. attainment dwnonsiratlons for these ‘- - contain t chnlcal support.sufflcfent to’-- (orxeporting) -raqulrements. ‘—‘ “- .‘ areas. Thus, for theseinitial areas th t documeut’completion stattstk fW C ’QtfanÜtaIveMil&ones— 4euioi strateJlively attaioment ’EPA’s “.‘ appropriate milestones. For emmple :’ ‘ ‘ .‘\ pohtodemntheemission • -thedemonstrntionshoukIguiphTcally!”’ ,1.Nature of Quantitative ° ° roductions piogress made between the - displa RFP over the course of the ” -’ ‘As-mentioned above, PM .40’ “ SIP’submittal due date and’the’’’ relevant 3-years and indicate how the ” : attalnment SIP’ihreto’cbntaih- t ..attainniOnt date as sufficient to satisfy emission reductions achieved to date ‘- - quantitative mil ton es (see section-- -z the flrst ,mihestone iequiroment (57 FR ‘-- compare to those required or scheduled -‘ 189(c)). These q aintltativ iiiilestones . - 1 -3539) ‘ - - - - -‘ - -: - ‘ , - tt meet REP and the-required,’.: ‘-.- - -‘ -‘ sliouldconsis of elements which allow A; Thusthe initial RFP/milestone will be ‘ -‘- - -. ., ‘ •• , ‘. progress tobe quantifled or measured.-- - met by showin that emission “- ‘ The plain I ms of section 189(c) roqulre that - Specifically States should identify and reductions scheduled tc be made submit quantitative mile tones - 7 i-- - .-between-the SIP due date and the ‘. contomplath any break, in the milestones due to an’ providing forlhé amounted emission “ -attainment date for these moderate areas arnas reclasslllcaLion, Fwther, toc1aasUy’th an eiea .reductioni adequate to achi’evO.the ‘ ‘ ‘ were actually achieved. Most of the to serious does not cbvlats the State fromcontrols • NAAQS by !he appli ab )e’attainment . emission’ reductions will result from , ,date. The lollowing are examples of - ‘. implementation of RM M (Lncluding continuous series of control measures mu4be measures which support and -‘ . ‘ ‘. RACT) adopted. as part of the moderate implemented iS PM-tO nonatteimnent areas - - demonstrate how the oveiahl ‘.“ area SIP. The Act requires that RACM be be 5 iu ing with RAO.4 (‘includihg ’RACfl and quantitative mile tones identified for an implemented by December 10.1993 in. - az a may be n-iet:’ - the initial PM—IC) nonattainment areas Npxt, BACM (including BACfl muM be - -a. Percent implementation of various (see section 189(a)). - ‘. ‘; . . implemented within 4 years after the area is - ‘control strategies (e.g.. pave 50 percent - Subsequent RFP/milestones for these reclassified as serious. Subsequently, ftmay be - - - -ofcufpable-streets. replace 75 percent of : initial PM—la nonattainment areas that -. residential wood heatcrs.wlth natural ‘ are reclassified as serious will be due T. em!Ore. the slnicturç of the Act requires a sorjes gas belting .inits). ‘ ‘ .. - every 3 years after the original due date .r mPaS,Irw wbich ran pmvida for R”PImllosiones . ------- Federal Register / Vol. 59. No. 157 / Tuesday, August 16, 1994 / Proposed. Rules 42017 ... ...“ . milestones. The calculations (and an r .economy,’a sectorof the ecquomy, - EFFECTIVE DATE: August 1&, 1994. assumptions made) necessary to,; productivity; competition., jobs, the FOR FURTHER INFORMATION CONTACT: determine the emission reductions o.. - environment, public health or safety, or Sharon P. McDoiiald Mass M&Iia date should also be submitted. The state, local, or tribal government or Bweau, (202) 634 .6530. demonstration should also contain an, communties’ . -. ! . :: SUPPLEMENTARY II IFORMATIOW Needf evaluation of whether the PM—b - 2. create a serious inconsistency or - ,. .. . ,. . ‘.: NAAQS will be attained by the - otherwise interfere witlian action taken W & fl hed th ‘1’! . 1 - __ or p13 anothera eflcy, wron iiemhi nee d emission reductions to date sufficient t impact of enti&lements. grant , user fees. ? .‘ -.• . . • ensure tiii eljatthinmex t? : . :orloan programs or the rights.and .- ; . UIT CtiOfl o i cation. .,.. . .. - . f it r ceipPA obhgations:ipnsthreoLor. State’s demonstration is a4ecpiate. ñd arising out of legaLmandites, the u . -.(W! Docke 1 4- 4J which, were the: meets all tl*e requirements thscussed - ‘4 Presidents pndrltles. or the prmciples subject of uuc. i4—l 7992, is • above The EPA will no’ ” thö State of set forth in the Executive Order. - .... corrected as iouows- . . itsdetennination” endin alette to ‘ ttothet o k 12866, . npage377 7,inthethdcohimn. th - . JOMB has notified EPA that this action under 47 CFR Part 73. the rulempking - d e appropnae vernor or emor S • a “significant regulatory action” . - number is coliected to read “RM—8503” esignee.. - . .., - thinthemeanIngoftheExecuti e -. inlieu ”RM-8476.” - • 4. Failure to Submit RFP/Milestone - Order. For this reason this action was . Federal ComTnunications Commission. 7 . • Report or Meet RFP/Milestones submitted to 0MB for review. Changes. wwiam F. ‘!. -. If a Sta e fails toTsubmit the iwpi ., . • ) de in response to 0MB suggestions or ACti SeCIetaP). -. .:. - J milestone report within the required fecommendations will be documented IFR Doe. 94-1é989 Filed & i5 94, 8:45 amj ‘ tlzneframes ccii U’A defirmines that 1ff the public record. . •.. __ . .. . theStatehasn ti et .any..appbcabIo - B RdatorjFIexibthty Act, . RFP/milestone, EPA shall require the ..- . - .. . ... -: . .. .. - .. . . -I. - WhenevertheAgencyasrequiredby , revision that assureitbat the State will Pr0 uir Act (A A) or any 9thc law achieve the next milestone (or attaip the toPth ji g ” notice of proposed - :- . PM- IONAAQS ,iftherelsnonexf’. iu1 nffforanyproposedrule.tha -- SOCFRPM2Q . milestone) by the app) jcable date (see -! - ee and make . . . . s e189(cX3)).Forøxifliple .With .- mmentaninifial - R 1N1018) respectt6 ’B P,1fth&reqilredinin aP Mir m1 i n redu’ itlons are not - - — - ienbuo .. I the relevant years acoo dIfig I c tain schedule and and Ceded Landifo milestone r equi rementEPAwilhi Season the State to submit a SIP rOvislon soi ry - th idevonicanbecordedead- . - ‘ AGENCY: kttninTn nt assured by the applicable - - . - , Interiçr date.Thls wouldalso necessitate r.q CarolM.., I AcnoN: mpIementa ion oiepproprlate:l r. . cx cy esures pursuànftó imi section 172(c)(9). %:1)Ø .t . . -.... . • - -NoteeJsothatfai1ure -tomeetRFP,if . . -. - - - certainfribes.. ‘ziôteq iedltlouslycorrèced.could:ah ,.; . ;,., .: ,: ,. :; ° . . :- re uf inthe application of s netions lICATlONS- - - .. rRTvat ion I - ds - described In sections 110(m) and 179(b -cOMMISSlON -“. , . — - - for the 1994 untIng.. oftheamendedAct(pursüanttoa -‘ , - ., - . - • - : -- — - ,• season ‘• ‘•‘ ‘ 4- finding under section 179(a)(411 : , 47 CFR Part 73 ix. Other Requirements.. e- . M Docket Ne c 041.74, RM ’-8476) A Executive Order 12866 ‘: I Radio Broadcasting Ser ice, Elma, WA - Under ExecutiveOrder 12866 (E.0. . , AGENCY• Federal Co i - , US: ishand 12866) (58 FR 51735 (October 4-1993)). “ ‘ - . •., ‘ - - Wildlife Sejvice, 634 ARLSOJ 49 C r the Agency must determine whether the -, . : -- SL!&. Washington ..I 20240. regu]atoryaction is “significant” and. j. ,: - i ” - - ,• on . Cothments re éived ifany, ,.on-these therefore subject to the Office of., - - . - ( SUMMARY: ‘fliiadocument contaln&a proposed sjie iefliuntingiegulatIôns Management and Budget (0MB) review. correction to the Notice of Proposed .. - and tribal proposals will.be available for -and the requirements of E.O. 12866. The u1eManZMPockU G94-14s.. , public inspection during iiounAl . t ‘ • E.O. 12866 defines “significant.: i. business hours in Room 634-Arlington -regulatory action” aspne that is II 1y.-nday,July. 5 99j 09 Fl 37. 37):: ;, Square Building. 4401 N. Feirfa c.Drive. —toresultinarujathatmay: 1. Have an annual effect on th , . ;C -h nnel271A.at Ehna.-Washington.as. FOR FURTHER INFORMATION CONTACT: Dr . economy of $100 million or more or - • the community’s first local lural - Keith A. Morelloüse. Office of Migratory .adversely affect in a mateijal way the - transmission service. - - — . . Bird Management, U.S. Fish and —. - - - ------- 47088 Federal Register / Vol. 59, No. 177 / Wednesday , September14. 1994 / Rules and Regulations 3.6 Use of Eqwpment . - Caitons, packages of flats, and sacks of items may be palletized under the applicable standards; cartons of DALs must be palletized with the corresponding items under the same standards. The USPS plant manager at whose facility a DAL mailing is deposited may authorize other types of equipment for the portion of the mailing to be delivered in that plant’s service area. - 3,7 Bound Printed Matter - Bound printed matter distributed with DALs must be deposited at the acoeptance point specified by the postmaster. Local zone rates are available, subject to G030. 3.8 MaiIin 8 Statement The mailer must complete and provide the appropriate mailing - statement with each mailing. . 4.0 DISPOSiTION OF EXCESS OR -‘ IVERABLE MATEXIAL U#J W mca&4 ( #. —- £fl pickup is not made within 15 calendar days of the notice to the mailer, the material is returned to the mailer postage due. -. •- . d. Hold the excess material while additional DALs or items are supplied (as applicable); if additional material is not supplied within 15 days of the -. notice to the mailer, the excess material is returned to the mailer postage due. Additional material must be sent’ prepaid to the delivery poIt office as First-Class Mail, Priority Mail, or Express Mail. . - - 4.2 Uudeliverable-as-Addret DALà with incorrect, nonexistent, or otherwise undeliverable addresses are handled under Fob. The accompanying item is treated as specified by the mailer under 4.1. 5.0 POSTAGE 5.1 Available Rates DAL mailings are not eligible for any automation rate, but they may qualify for carrier route or walk-sequence rates subject to the applicable standards. 5.2 Initial Distribution Postage is computed based on the weight of the entire mailpiece (i.e., combined weight of the item and the accompanying DAL). If the number of DALs and items mailed Is not identical, the “number of pieces” used to determine postage is the greater of the two; no postage refund is allowed in these situations. The total weight of the mailing excludes the weight of the iartons used to carry the DALe or items, dunnage, and carton labels. In addition. these methods of postage payment apply: a. Second-class flats must be p epaid. A notice of entry must appear in the upper right corner of the DAL b. Third-class flats and samples and fourth-class bound printed matter must be paid by permit Imprint, which must appear on each DAL. Third-class postage Is computed at the applicable nonletter rates. Additional material (DALs or items) being supplied under 4.ld must be mailed with postage prepaid as First- Class Mail, Priority Mail, or Express Mail, subject to the eligibility standards - applicable to the rate claimed and the - conditions in 5.2. A transmittal letter making these. changes in the pages of the Domestic • Mail Manual will be published and will be transmitted to subscribers automatically. Notice of issuance will be I DALs jmblished in the Federal Register as -: provided by 39 CFR 111.3. - - Stanley V. Mires, - - - Chief Counsel, Legislative. (FR Dcc. 94—22735 Filed 9—13—94; 8:45 ami eIWNG COOS 7710-12-P - - ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 ( O11—1-6532a, cO3O—1—6533a, and c036— 2-6303a; FRL-5067--7J. Clean Air Act Approval and Promulgation of PM-b implementation Plan for Colorado; Designation of Areas for Air Quality Planning Purposes AGENCY: Environmental Protection. - Agency (EPA). ACTION: Final rule. SUMMARY: In this document, the EPA is approving the State implementation plan (SW) and SIP revisions submitted by the State of Colorado for the purpose of bringing about the attainment of the national ambient air quality standards (NAAQS) for particulate matter with an aerodynamic diameter less than or çqual to a nomInal 10 mIcrometers (PM—iC)) in Aspen, Colqrado. The SIP was Initially submitted by the State .on.January 15. 1992, with revisions submitted on March 17, 1993 and December 9, 1993. - EPA proposed to grant limited approval of the January 1992 and March 1993 submittals in a December 23, 1993 Federal Register notice. The State’s - -. December 9. 1993 SIP revision• adequately addressed the deficiencies whichhadbeenthebas i sfor A’a decision to propose limited approval of the previous submittals. Therefore. EPA Is withdrawing the limited approval and now approving the Aspen submittals as meeting the PM-IC) SIP requirements due November 15,1991. EPA is also approving the PM—IC) contingency measures for Aspen whlchwere included in the December 1993 - submittal, and EPA is amending the Aspen PM—b nonattainment area boundary. ... - - DATES This final rule will become. effective on November14, 1994 unless adverse or critical comments are received by October 14,1994. If the - effective date is delayed, timely notice will be published in the Federal Register. - ADDRESSES: Co unents should be - addressed to Vicki Stamper, 8ART-AP, at the EPA Region VU] Office listed. Copies of the State’s submittal and other information are available for Inspection during normal business hours at the following locations: Air Programs Branch, Environmental ProtectionS Agency, Region VU], 999 18th Street, suite 500, Denver, Colorado 80202— 2405; and Air Pollution Control Division, Colorado Department of 4.1 Ence Material . . - The letter required under 3.1 müM .. either request that the delivery office contact the mailer (or representative) about exems DALs or items, or provide Instructions for their treatment (If the . . - - mailer does not provide Information- . - . .- - . . . . -, about excess DALs or items, such Postage for excess or undeliverable. material is disposed of as waste by the DALs or items being returned Is USPS.) The rnail.er must choose one of - computed at the single-piece third- or the following options for each DAL , fourth-class rate applicable to the mailing nd-the itenm... ‘— - ; combined weight of the DAL and the a. Dispose of any excess material 8S. . - accompanying item, regardless of Waste.. - . whether both are being returned. The b. Return the excess material to the-S - ; total amount due for returned material, mailer, postage due at the applicable which includes the return postage and single-piece rate under 5.0.’ the applicable address-correction fee for c. Hold the excess material for pickup - each DAL or Item returned, Is collected Is.. +h renmmntalivai-’ upon the material’s return to the mailer. 5.4 AdditIonal Items ------- Federal Register F Vol. 59, No. 177 I-Wednesday, September 14. 1994 / Rules and Regulations47O89 Health. 4300 Cherry Creek Drive South, Denver, Colorado 80222—1530. FOR FURTHER INFORMAT iON CONTACT: Vicki Stamper, 8ART-AP, Environmental Protection Agency, Region VI I I. 999 lath Street. suite 500, - Denver. Colorado 80202—2466, (303)- 293—1765. SUPPLEMENTARY INFORMATION: L Background - Aspen, Colorado was designated - nónattainznent for PM—b and dassffied as moderate under sections 107(d)(4)(B) and 188(a) of the Act upon enactment of the Clean Air Act Amendments of 1990.1 (See 56 FR 56694, November 6, 1991; 40 R 81.306 (specifying nonaftsinment designation for Aspen.)) The air quality pI nniiag requirements for moderate PM-la nonattainment areas are eel out In Subparts 1 and 4 of part D of title I of the Act. The EPA has Issued a ‘General Preamble” describing EPA ’. preBminesy views on how EPA intends to review SIPs and SIP revisions submitted under title I of the Act, Including those State etibmittels : - conteining moderate PM—b - nonattainment area SIP requirements (see generally 51 FR 13498 (AprIl 16, 1992) and 57 FR 18070 (April28. 1992)). Because EPA Is describing Its interpretations here only In broad terms, the reader should refer to the General Preamble for a spore detailed discussion of the Interpretations of title I advanced - In this iulmnnHiig and the supporting. - rationale. In this document on the ’ Colorado moderate PM-la SIP for the Aspen nonattainment area, EPA has • applied Its interpretations taking Into consideration the specific factual Issues presented.- . ‘ - ‘ - Those states coninining Initial - moderate PM-la nonattainment areei were required to submit, among other things, the following provisions by • - November15, 1991 1. Provisions to assure that reasonably available control measures (RACM) (including such reductions in PmL s one from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACF)) shall be implemented no later than December 10, 1993; 2. Either a demonstration (including air quality modeling) that the plan will provide for attmnment as expeditiously as practicable but no later than ‘The 1990 Amendments to the Clean Air Ad made significant changes to the Ad. See Pub. L. No. 101—549. 104 SLaL 2399. Refmences heesin are to the Clean Air Ad.., amended ( ‘the Aa ”). The - Clean AirAd Iacodilied.asamendod. in the U.S. Code at 42 U.S.C. 7401 nt. eaq. -. December 31,1994 or a demonstration submittals Federally enforceable. In that thit attainment by that date is document, EPA also proposed to y impracticable; - approve those few elements of the SIP 3. QuantItative milestones which are submittals which were separable and to be achieved every 3 years and which independent of the inadequate demonstrate reasonable further progress demonstration of attainment EPA’s (RFP) toward attainment by December proposed approval did not include the 31,1994; and • - State’s voluntar no-drive day control 4. Pro visfoñs to assure that the contsol - measure, on which EPA did not propose requirements applicable to major . - to take action. stationary sources of PM—b also apply The State subsequently adopted to majorstationazy sources of PM—Ia . additional PM—b oontrol measures for precursors except where the . Aspenin November of 1993 and . - Administrator determines that such submitted the revised control measuros. sources do not contribute significantly —for approval in the SIP on December 9. to PM—1O levels which exceed the 1993, along with a revised NAAQS in the area. See sections 172(c), des onstralion showing that the control 188. and 189 of the Act. . measures adopted and submitted for the Some provisions were due at a later Aspen moderate PM—la nonattainment date. States with initial moderate PM- area would result in timely attnh ment .10 nonattainnient areas were required to and maintenance of the PM—ia NAAQS. submit a permit program for the SectIon 110(k) of the Act sets cut ounstuzetion and operation of new and - provisions governlng EPA’s review of modified major stationary sources of SIP submittals (see 57 FR 13565—13566). PM—b by June 30. 1992. See section In this action. EPA Is withdrawing its 189(a) of the Act. Revisions to satisfy proposal to grant limited approval these requirements were submitted by published in the 1 )ecember 23,1993 the State onJ.niu .ry 14,1993, and EPA Federal RegIster (58 FR 08094) and Is, will be Raking action on these - - Instead, fully approving the Aspen PM— requirements in a separate Federal 10 plan which was due to EPA on. Register document. Such Slates were - November15, 1991 and submitted by also required to submit contingency . the State on January 15,, 1992. March 17, m rres by November 15, 1993 whIch 1993, and December 9,1993. Note that become effective witlkout further action EPAs approval does not Include the - by the Stateor EPA. upon a . . voluntary no-drive day provision determination by EPA that Ike area has submitted by the State; EPA Is not feihed to achieve RFP or to attain the - taking action on that provision at this PM-b NAAQS by the applicable • - time- Mad, EPA Is approving the PM- statutory deadlin, See section 172(cX9) 10 contIngency measures for Aspen. of the Act and 57 FR 13543-13544. The - which ware due to EPA miNovember State adopted PM-la contingency - - 15, 1993 and which were submitted - measures for Aspen In November of. - - with the addltinnel control measures In 1993, and those measures were included the State’s December 9, 1993 SIP . - in the State’s December 9,1993 SIP. - -revision. - -- - • .. —:. - - - • - subiniuaLA longwithtakh sgactlonon - Ala amnntHng the . . - - the ulodesate PM—b nonattainment area nonattainment area boundary for the - SIP requirements which were due to Aspen nonattalnment area to Include - EPA qn November 15,1991, EPA Is also some of the area surrounding Aspthi. - - - - taking action on these contingency - The revised boundary Is based on measures in this document. - - - information submitted with the January - - 1992 SIP submittal which provided a IL This Action - SIP equivalent demonstration - - - On December 23.1993. EPA proposed - persuasively showing that the revised to grant limited approval of the Aspen boundary more accurately represents PM—b SIP submitted on January 15, the Aspen akshed. (See section . 1992 and revised on March 17,1993 - 110(k)(6) of the Act) - (see 58 FR 68094-68101). Because the Since the Aspen PM—b SIP was not State could not demonstrate that the submitted by November 15,1991 as control measures Included In the required. EPA made a finding, pursuant January 1992 and March 1993 SIP to sectionl79 of the Act, that the State subinittals were adequate to - failed to submit the SIP and notified the demonstrate timely attainment and Governor In a letter dated December16,, maintenance of the PM-la NAAQS in 1991. See 57 FR 19906 (Maya, 1992). Aspen, EPA was unable to propose full After the Aspen PM-Ia SIP was approval at that time. EPA thus submitted on January 15. 1992, EPA - proposed to grant limited approval of. found the submittal to be complete -the submittals for the purpose of - . pursuant to section 1b0(kXb) of the Act strengthening the SIP and to make the and notified the Governor acco dingly control measures included in those in a letter dated March 16,1992. This ------- 47090 Federal Register 1 Vol. 59, No. . 177 / Wednesday. September 14, 1994 1 Rules and Regulations completeness determination corrected the State’s deficiency and. therefore. terminatedthe. 18-month sanctions clock under section 179 of the Act. A. Analysis of State Submittals 1. Procedural Background The Act requires States to observe certain procedural requirements in developing implementation plans and plan revisions for submission to EPA. Section 11O(a)(2) of the Act provides that each implementation plan submitted by a State must be adopted alter reasonable notice and public heanng. 2 Section 110(1) of the Act imilar1y provides that each revision to an implementation plan submitted by a State under the Act must be adopted by such State after reasonable notice and public hearing The EPA also must determine whether a submittal is complete and therefore warrants further EPA review and action (see section iio(k)(i) of the Act and 57 FR 13565). The EPA’S completeness criteria for SIP subnrittals are set out at 40 CFR part 51, appendix V (1992). The EPAauempts to make completeness determinations wIthin 60 days of receiving a submission. However, a submittal is deemed complete by bperatlon of law if a completeness determination is not - made by EPA 6 months after receipt of the submission. As discussed in the December 23, 1993 Federal Register document, the State met the procedural requirements of the Act for the adoption of the - January 15, 1992 and March 17. 1993 SIP submittals, and EPA found theseS • submittals to be complete in letters I dated March 16, 1992 and May 18. 1993, respectively. . - -. After providing more than 30 days of’ prior public noticeior the December 1993 SIP revision. üie State of Colorado held a public hearing on November12, 1993 to entertain public comment on the revision to the implementation plan for Aspen. Theplan for Aspen was subsequently adopted by the State and submitted by the Governor to EPA on - December 9, 1993 as a revision to the SIP. Along with the additional PM—b controls and contingency measures for Aspen. the SIP submittal also contained. the PM—b contingency measures for the State’s other PM—b nonattainment areas and additional PM—lu control measures for Pagosa Springs. EPA will act on those portions of the submittal in separate Federal Register documents. The SIP revision was reviewed by - EPA to determine completeness shortly 2 ?Iso section 172(c17) oF the Act requbes that plan provisions for nooattainment areas meet the applicable provisions of section i1O(a (2). after its submittal, in accordance with the completeness criteria set out at 40 CFR part 51, appendix V (1992). The submittal was found to be complete, and a letter dated February 15, 1994 was forwarded to the Governor indicating the completeness of the submittal and the next steps to be taken in the review process. In this action, EPA approves these PM—b SIP submittals for Aspen - as meeting those moderate PM—la nonattainment area SIP requirements due November 15, 1991 and as meeting the PM—jo contingency measure requirement due November 15. 1993. EPA s approval does not include the voluntary no-drive day provision which the State submitted as a PM—b control measure; EPA is not taking action on this control measureat this time. Since this measure is not needed for the Aspen area to demonstrate timely .. attainment or maintenance of the PM— 10 NAAQS. EPA’s decision not to take action at this time on this measure does not.impact the overall approvability of the Aspen SIP submittals as meeting those moderate PM—jo nonattainnient area SIP requirements due November 15. 1991. 2. Accurate Fmiezions Inventory Section 172(c)(3) of the Act requires that nonattainmeht plan provisions Include a comprehensive, accurate, and current inventory of actual emissions. from all sources of relevant pollutants in the nonattainrnent area. Because the submission of this Inventory is & necessary adjunct to an area’s attainment demonstration (or -. demonstration that the area cannot -practicably attain), the emissions inventory must be recei ed prior to or with the submission (see 57 FR 13539): An initial emienlons inventory was’ submitted with the January 15.1992 SIP submittal,and technical revisions to the emissions inventory were submitted on September 20,1993 in response to EPA comments on the initial emissions inventory. The resulting emissions inventory identified area sources as the primary cause of high PM—b concentrations, with re-entrained road dust contributing 97.6 percent, - - residential wood combustion contributing 2 percent. restaurant chaxbroiler grills contributing 0.2 percent. and tailpipe emissions contributing 0.2 percent. No stationary sources were identified in the Aspen area. - - -. - In the December 23, 1993 Federal Register document, EPA proposed to approve the emissions inventory for the Aspen, as revised on September 20, -. 1993 (see 58 FR 68096). This component of the State’s PM—la nonattainnient area plan was considered to be separable and independent of the deficiencies which prohibited EPA from granting full approval of the January 1992 and March 1993 PM—b SIP subinittals. The emissions inventory represents an assessment of PM—b emissions in an area prior to the adoption of control measures, and EPA did not expect the Aspen PM—lu emissions inventory to change as a result of any atiditional control measures adopted. No comments were received on EPA’s December 23,1993 proposed approval of the emissions inventory, and the emissions inventory was not changed in the State’s December 9, 1993 submittal. Therefore, EPA is finalizing its approval of the emissions inventory. EPA believes the ATnieeions inventory is accurate and comprehensive and provides a sufficient basis for determining the adequacy of the attsainrnent demonstration for this area consistent with the requirements of section 172(c)(3) of the Act. For further information, please refer to the December 23,1993 Federal Register document (58 FR 68096—68097) and the Technical Support Document (TSD) associated with this action, which is. available at the EPA office Identified at the beginning of this document. - - Under EPA’s transportation conformity regulations promulgated on November 24. 1993(58 FR 62188— -- 62253), a State’s nonattainment area plan should define the motor vehicle•• emissions budget for which Federal transportation plans must demonstrate conformity. However, Ioz the Aspen . PM—b nonattainment area, the motor. vehicle emissions budget was not explicitly stated in.the SIP, as the SIP was developed and submitted prior to the promulgation of the transportation conformity rules. To reduce fu misinterpretation on this issue, EPA. with concurrence from the State. has calculated the motor vehicle emissions - budget based on the motor vehicle emissions inventory and the attainment demonstration presented in the SIP. Using the SIP’s estimate of motor vehicle related emissions (including tailpipe and re-entrained road dust emissions) in the attainment year of. 1994, accounting fo,r the effect of the motor vehicle related control measures that will be implemented in 1994, the motor vehicle emissions budget was calculated to be 14,312 pounds per day. 3 The EPA Issued guidance on PM—tO emissions Inventories prior to the enactment of the Clean Air Act Amendments in the form of the 1987 PM-tO SIP Development Ghideline. The guidance provided in this document appears to be consistent with the revised Act. See ection 193 of the I ------- Federal Register I. Vol. 59, No. 177 / Wednesday, September 14, 1994 / Rules and Regulations 47091 States also have the option of developing motor vehicle emissions budgets for other years. In an August 26, 1994 letter of concurrence on the attainment year motor vehicle emissions budget. the State acknowledged its intent to establish an emissions budget for 1997 pursuant to its 1997 maintenance demonstration for the Aspen PM—ID nonattainment area. The 1997 motor vehicle emissions budget was thus calculated by the State (based on the 1997 information from the SIP as discussed above) to be 13.974 pounds per day (excluding the emissions reductions from the voluntary no-drive day, on which EPA is not taking action at this time). For further details, please refer to the State’s submittals and the TSD. - - 3. RAQ’.4 (Including RACF) - As noted, the initial moderate PM—to nonattalnment areas must submit provisions to assure that RACM (including RACF) are implemented no later than December 10,1993 (see sections 172(c)(1) and 189(a)(1)(C) of the Act). The General Preamble contains a detailed discussion of EPA’s interpretation of the RACM (including RACT) requirement (see 57 FR 13539— 13545 and 13560—13561). In broad terms, the State should identify available control measures, evaluating them far their reasonableness in light of the feasibility of the controls and the attsirnment needs of the area. A State may reject an available control measure if the measure is - technologically Infeasible or the cost of the control is unreasonable. In addition. RACM does not require controls on emissions from sources that insignificant (I.e., de mininhi ) and does not require the implementation of all available control measures where an area demonstrates timely attainment and the implementation of additional controls would not expedite attainment. Colorado’s moderate PM—to SIP revision for Aspen targeted three source categories for emissions reductions: re- entrained road dust, residential wood combustion, and charbroiler grill emissions. Spedlically. the State adopted transportation control measures, street sweeping and sanding provisions, a voluntary wood burning curtailment program, limits on installation of new wood stoves and fireplaces, and requirements for new restaurant charbroiler grills to control PM—tO emissions. The following table represents the benefits that these control measures are projected to resulting towards attAining the PM—la NAAQS in Aspen: • -- Source Control - - Benefit tewards re&cing PM-b emissions Re-entrained road des Transit e a ,don, 400 patt i-n-dde No creolt taken for these stmtegles. .•.. -. -- .•.. . • ‘ . - - • -ri - Residential wood contustion ........ - . - ..c ,. ‘ I Cha ttrol lergri l ls ‘1 Crosstown shuttle set*e____ Paid paddng - . 250 space lnterc pt lot a1 dshutfle .- : • - Peak hrs bus pdodty lane Event strategies ..... — Specs for sandag mtedals.,.i....... ‘ ‘: t ”- Street sweeping -. - ‘ - •.i-. . .. ... - Voluntary , wood, bu’i*ag ‘curtail- mast -. - • . - —. Limitations on new wood st es arsi Ike j$ao Requires PM-locontiolsongrilhs Redaction of 400 veticle miles of travel (VMfllday.’ -, No crodt teken b 1994 aflalnmet* demo; reóJc lon ot 13.070 vPrri day expected slng mainteratnce years (1994-1997) , ,’ No crodt taken le 1994 attakenent demo redactlon c i 2,640 VMT/ day expected dsfng nwlntenazice years (1 994—1 997 ’ . • . — Redactianol 1,020 VMTIday’ . . . • .. - No crecSt taken for these povisions.— 58 percent redaction Ii re-entrained road dast from minor atterial •madways.-: -. .- . ..— . . •. .: -: . •• • •—•— . . 19 percent redaction In re-ar*alned road dust eflulasiens from Hwy • .. ‘: ‘•:‘ . . 10 percent redaction Ii resider iàl wood conibustloii emissions. - . ..•.- .-. - I 1 . . -.l ? . Eflectiveness kicasporated Into tidure year emissions Inventories. - — — .. — Effectiveness Incorporated Into futae,year emlssloniirwentodes. . ‘The edactlons in velicle-miles-ravéled (La., VMT) ultimately result In an emisoloesdecrease from re-entrained road dust orriss -:.\ - - . & ., . - ,. —- .. ‘- -. - •. - t: . ;c. i. ._ . .1 .• —‘.• : ‘ •‘ Note that the credit listed iii this table because these measures are needed to •. State’s regulation does not require these for the 250 space interceptlo has been ‘meet the increased demand in ridership measures to be Implemented until June changed from the original credit - -. .. expected due to the other transportation 1,1994. Thus, the State only took the. - - requestedbytheStateforthiscontrol .. controlmeasüresinAspen.Mso,the. : measure in its December 1993 SIP. - . .: State did not request any credit for the, its 1997 mainteiiiinre demonstration.. submittal because the original credit . event strategies, which consist of - ii State also requested credit for a was calculated incorrectly by the State - additional strategies to be implemented voluntary no-drive day in its (the State based the credit on 300 - during the 10-day period prior to and maintenance demonstration (1994- • - parking spaces. rather than ,250). The including President’s Day in February of 1997), but not hi the attainment - pounds per day emission reduction - - each year. The State adopted these event demonstration, for the Aspen expected from the specifications for . - strategies because the majority of PM 10 nonattainment area. EPA is not taking sanding materials was also calculated exceedances In Aspen have occurred action on this control measure at this Incorrectly by the State in its December during this timeframe due to an time. Declining to take action at this 1993 SIP submittaL The State corrected of visitors to the Aspen area, and the time on this measure does not Impact these Falculations and adjusted the State wanted to provide extra assurance the approvability of the SIP subrnittals attainment and maintenance. - that there would be no future PM-b •- - meeting RACM. since the demonstrations accordingly in a June 1, exceedances during this tirneframe. . - combination of the other cohtrol 1994 submittal. See the TSD for further m State did not take credit for the measüzesadopted and submitted is - information. - - -‘; - • - - paid parking requirements or for the • adequate to demonstrate timely -The State did not take credit for the provision of the 250 space intercept lot attainmentand maintenance of the PM—.. masstrapsiteervicegxpansionand - ,- andshuttleintoAspeninthei9S4 ’.’ - ‘ 10NAAQSintheAspennouauainment:. provisionof 4 00park-n .ride spaces attAininentdemonstrationbecausethe- ‘aá. . . -• 1• ’- ------- 47O9ZFederal Register I V 9 l. 59. No. 177 1 Wednesday. September 14. 19941 Rules and Regulations The requirements described in the for the Aspen nonattainment area as 1994 of 136 pg/rn’. The demonstration table will be implemented through meeting the RACM including RACr qiso predicted a 24-how design Section I II of the Colorado regulation requiieznenl However, as dismissed concentration of 133 pg/rn3 in 1997 entitled “Nonattainment Areas” above, EPA is not taking any action on (excluding the aedit requested for the (effective 312/93, with revisions’ the voluntary no-drive day provision at voluntary no-drive day on which EPA is effective 12/30/93). Except for the paid this time. not taking action at this time). Thus, the parking and 250 space intercept lot and A - State’s atthinment and maintenance shuttle measures desa ibed above. hi . mons on demonstrations showed that the control State regulation requires -As noted, the initial moderate PM-b measures adopted for the Aspen area implementation of these control . flonattMnm ’t areas must submit a would adequately result in attainment measures by December10, 1993 These - demonstration (including air quality and maintenance of the 24-hour PM—b control measures are expected to result modeling) showing that the plan will NAAQS. Since the demonstration in an estimated overall reduction of provide for attainment as expeditiously provided by the State for Aspen dearly 3987 lb/day of PM -10 emissions in the as practicable but no later than - - shows atbihiment and ’maintenanae of Asoen area by the end of 199& December 31.1994 (see section the 24-hour PM—b NAAQS, It is lii order to comply with the State’s - 189(alil)(B) of the Act). Alternatively. - reasonable and adequate to assume that Administrative Procedures Act, the - the State must show that attainment by the pmtecti in of the 24-hour standard revisions to this regulation adopted on December 31, 1994 is impracticable, will be sufficient to protect the annual November12. 1993 did nOt become EPA regulations provide th p standard as welL The control strategies effedive until December 30. - attainment be demonstrated by means of u to ichieve these desigir • ‘ Iluwvvvr the State adopted . ‘ - - a proportional model or dispersion - concentrations are summarized ln ’ — emergency rule on No’veniber 12.1993 - modal or other procedure shown to be . Section ILA.C. of this document entitled to mike the new provisions In the - • adequate and appropriate for ‘RAQ{ (Inclnding RACT).” For a more. • State’s nQnaft ment area reguiatlon - - purposes. (See 40 CFR 51.112(a).) - - - - detailed desaiplion of the nttidnmant -. effective December , 1993. UntIl the - general. EPA policy recommends that. •d tibnazid the control strategy - State’s regulation becatho effective 1 the : the preferred approach for “ “B - used, see the TSD. - . emergencyrule(whichisldenticalto theairqualityunpactsoE .n onsof. ••. - -. • - - ,- the State nonatt inineñt area regulath n) i..YM40 Is to use receptor modeling In - - S PM-b Precursors,, •. •. . apolied beginning D oiwber 1,1993. - “ “ tloa with lispersion modeling: - -- The control requirements which are Per en area that demonstrates On July 5, 1990. EPA Issued ice -’. applicable to major staflonaiy sources of - attalnnentby the appllàbk attainmént ‘piov1dIng that, In certain situations, It . PM-b also’ apply to major stationary date, the lmplnmnntatknn of otherwise, ‘ ,may be more appropriate to rely on a sourceS of PM- .10 precursors, unless - available control measures Is nat ‘ , receptol’ modeling demonstration alone EPA detirthlnes suthsouiues do not •“rea nably” required by.RAChI if such as t!id basis for thoattaininent . - - - contribute significantly to PM-b levels - control measures would not.eipedite : .1%t . TatIon (see July 5, 1990 memo In ui,ssbf the NAAQS (see section.’ • attainment. (Seö57 FR 13543.) Controt ::.to Regional Air rench Chiefs from 189(b) of the Aci).-’ ‘ - - of other PM lOnnthalons in theares,’ Róbeit D. Bann an , Chief of SOIL. . ‘ .‘: .-An nalys1s of the Stàte’siubñilttal of’ such as tailpipi ernfssioni and,co l ‘‘ ‘Pazticulate Matter Programs Branch and’ air quality and missions data, as ‘-burning stoves, was n red .k;L u Joseph likvart, Chief of Source Receptor. revised on September 20 1993, for the - because the Implementation ‘of su h -. ‘ -AnalysisBranch) .Aspen meets the -.. ‘ Aspen nonattainmont area 1ndlca es that- • controls would not.havo flnther ” •( tedud1S tmiOd In the July 5, 1990 - of the NAAQS are advanced the atuiinment date In the ? memo to justify using receptor modeling %-atlributable chleflyiqparticulatamatter aree ;‘ , ‘alaueand,therefere, the State ’uh1i Att . nnici nnnifromaxeasouroes,minn lyre- SledIs rly. RAQ.1 ( ncJ idlii RAC’fl- receptörthodaiing in the attainment and- .eàtrained rua L dust from pavedand- ‘did not ‘equlre the adOptionot’ ‘: ;malntenance demonstrations provided--’ unpaved roads and residential wood .- - otherwise availible-cóntrol’méaiures foe— for the Aspeti ’inoderate PM—b -: - combustIon. In addition; theami iona - statfridary sour in the Aspen , ,‘ nonattainmeilt area. inventory for this area did notreveal - nonaitnininent area because point- ‘ ‘ ‘Theattalnmentand ma1nt ’ e :- any major stationary sources of PM-b -• source nmltclonain th o Aspen area ire demonstrations presented In the ‘-‘ - precursors. In Its ,Decembe 23,1993 demiiumis (see 51 FR 13540) ant:-’. s — ’- December 9, 1993 submittal (as. ‘.- - notice of proposed rulemaking. EPA :- - -control of siTrék sources wbuld not amended by the StatVs June 1,1994 “ proposed to find thaf major stationary. - expedite attaininentof the PM-b ‘. -letter correcting errors in the original - -:souxcas of PM-tO-precursors do tiot NAAQS.’ • -/-‘ -• - •-. - = control measure aedits) indicated that - contribute signifläanlly to PM-b levels - .. • ,• -i..• . . - A more detailed discussion of the the NAAQS for PM-b in the Aspen - in excess of the NAAQS in Aspen (see individual soifrce conthbutitmc their area would be attained in 1994 and’ -“ 58 FR 68098). EPA received no- - - -- assôciated control measüresr. and an’ - maintained through December 31,1997. comments on that finding. Rod the • explanation as to. vhjcertain The 24-hour PM-b NAAQS is 150 pgl - . State’s December9 1 1993 SIP revision • control measures were not implemchted, m’, and the standard Is attained when’.- did not Include any information that - can be found ln’Lhe ,TSD. The EPA has,... the expected number of days per : -. - would Impact EPA’s proposed finding: - ieviewed the State’s e*plnnatioñ aiid - - calendar year with a 24-hour averego - - Therefore, EPA is finnli,ing Its finding • associated docwnentation and has • • concentration above 150 pg/m’ Is equal - - that major stationary sour of -, •‘ - - concludedthatltidequately justifies ,‘ 7 toorlessthanone(soe4OCFR5O.6). - - precursorsofPM- b odonotcontribute - the control measures to be - - ‘. - - The annual PM.40 NAAQS Is 50 pg/rn’, - , significantly to PM-b levels in excess implemented. The Implementallozi of and the standard is attained when the - - of the NAAQS iii AspelL .On,August 18; ,Aspen’s PM-b control strateej is “. expected annual arithmetic mean - — 1994, EPA partially approved the State’s projected to ràult In the altainmpnt of , concemitration is less than or equal to 50 - nonattainnient new source review (NSR) the PM-b NMQ byDecember 31, - pg/rn 3 (id.) The demonstration provided - permitting regulationslcr the Aspen - - 1994; Therefore; by this document, EPA , by the State predicted a 24-hour design- moderate PM-i l) nonattainmeot area - ls a iprovingCoIored ’s SIP submnittals : .. concentrationT 1n the attainment year of (among others) because the State did not - ------- Feder d Register I Vol. 59, No. 177 / Wednesday, September 14. 1994 / Rules and Regulations 47093 submit NSR permitting regulations for revisions due on November 15. 1991 for satisfying the initial quantitative sources of PM—b precursors in.Aspen the initial moderate PM—lu milestones and RFP requirements. and because EPA had not yet found that nonattainment areas must demonstrate such sources did not contribute that two milestones will be achieved 7. Enforceability Issues significantly in Aspen (see 59 FR (first milestone: November 15. 1991 All measures and other elements in 42500). The consequence of this finding through November 15. 1994; second - the SEP must be enforceable by the State is to exclude major stationary sources of milestone: November 15, 1994 through and EPA (see sections 172(c)(6). PM—b precursors in Aspen from the November 15, 1997). For areas that 11O(a)(2)(A) of the Act and 57 FR applicability of PM—la nonattainment demonstrate timely attainment of the 13556). The EPA criteria addressing the area control requirements, including . PM—b NAAQS. the second milestone enforceability of SIPs and SIP revisions nonattainment NSR permitting should, at a minimum, provide for were stated in a September 23. 1987 requirements. Thus, the State’s continued maintenance of the meiflOranduni (with attachments) from J. nonattainment NSR regulations for standards. 4 Craig Potter. Assistant Administrator for Asnen are considered fully approved. ‘ In implementing the quantitative Air and Radiation, et aL (see 57-FR further discussion of the analyses and milestone and RFP provisions for this 13541). Nonattainment area plan supporting rationale for EPA’s finding initial moderate area, EPA has reviewed proVisiOns must also contain a program are contained in the TSD accompanying the attainment demonstration and that provides for enforcement of the this document. Note that while EPA control strategy for the area to assess control measures and other elements in making a general finding for this area, whether the initial milestones have been the SIP (see section 11O(a)(2)(C) of the this finding is based on the cuivent satisfied and to determine whether Act). - - -- character of the area including, for annual incremental reductions different The control measures contained in the example. the e,dstlng mix of sources in from those provided in the SIP SIP are addressed above under Section ILA.3. entitled. ’RACM (Including, the area. It is possible. therefore, that submittals should be required in order RACfl.” These control measures, which future growth could change the . to ensure attainment of the PM.-i0 are included in Section III . of the State significance of precursors in the area. The EPA intends to : : NAAQS by December 31, 1994 Regulation entitled “Nonatisinment section 171(1) of the Act). The State of guidance addressing such potential-’ Colorado’s PM—b SIP submittals for Areas” (effective 3/2/93, with revisions effective 12130/93). apply to the f changes In the significance of precursor Aspen indicate that the control ‘ activities identified in that discussion, emissionsinanareai. - - measuresadoptedwiliresultina includingemiss lonsfromre-entrained 6. Quantitative Milestones and . -• reduction of 3987 lb/day of PM—b. and road dust ad residential ReasonabLe Further Prdgress - : the State demonstrated that this annual combustion. The State regulation The PM—la nonattainment area plan incremental reduction will result in .. provides that these control measures revisions demonstrating attainment. . attainment of the PM—lu NAAQS by apply throughout the Aspen PM—b- mustlontain quantitative milestones .; December 31. 1994. This satisfies the nonatininment area. The only’ • whichare to be achieved every 3 years t quantitative milestone. 5 The State until the area is redesignated attainment has also demonstrated that the exemptions provided in the r4ilation are from the wood burning curtailment and which demonstrate RFP, as defined provide for thaintethnth of the PM-to program: EPA Phase II wood burning in section 171(1). toward atsainment by - NAAQS through the end of 1997. ‘- devices are exempt from the-wood December 31, 1994 (see section 189(c) of satisfies the second milestone due for burning curtailment program in order to the Act). RFP is defined In section ‘ : the area. Therefore, EPA approves the - : encourage conversions to c]eaner wood 171(1) of the Act as such annual. .. AS )Ofl PM-b SIP subutittals as’ . . burning devices. This is consistent with incremental reductions in emissions of - - - -. -., : ‘- the recommendations for voluntary. the relevant air póllutantas are required.. ‘ SectIon 189 (c) provides that quantitative - ‘i .i. wood burning curtailment programs by part Dor may reasànably,be required tobeachieved “until the INS as provided in-EPA’s Guidance Document redesignated - However, this endpoint by the Administrator for the purpose of is specolative because .. for Residentioi Wood Combustion ensuring attainment of the applicable - re ieaignatIon clan ares as attainment Is contingent. Emission Control Measures.:. NAAQS by the applicable date. - . upon several factor, and future events. . . Consistent with the attainment While section 189(c) of the EPA believes it Is unreasonable to require -: demonstration previously described, the’ plainly provides that quantitative - - “ “s for each nonattainment area to cover . SIP submittaliand State regulation - milestones are to be achieved until an ultat ,ve milestones years Into the fu - because of the possibility that such time may elapse . require that ill affected ;ctivities for area is redesignated to attainment, it is-- beio an area a In fact redesignated attainment. On- - which the State is taking credit towards silent in Indicating the starting point for the other band. EPA believes It is reasonable for - - demonstrating attainment must be In counting the first 3-year period or how States initially to submit a sufficient number of full compliance with the applicable SIP milestones to ensure that there is on-going air many milestones must be initially - quality protection beyond the attainment deadiles. provisions by December 10, 1993. In addressed. in the General Preamble, - Addressing two milestones will ensure tint th. - addition to the applicable control - EPA addressed the statutory gap in the - State continues to nialntainthe NAAQS beyond the - measures, this includes the applicable starting point for counting the 3-year attainment date heat least some period during - recordkeeping requirements which are which an area could be redesignated attainment. addressed in the supporting milestones, indicating that it would - However, In all lnstannsa. additional milestones - begin from the due date for the - must be addre,sed If an area is not redesignated . Information. (As discussed in Section applicable implementation plan attainment within the time period covered by the ll.A.3.. two of the control measures revision containing the control - initial ,nilestome aulanittad. . - which pertain to parking fees and measures for the area (i.e.. November 15 ‘For areas that demonstrate timely attainmentof implementation of an Intercept lot and the PM-to NAAQS. the emissions reduction 1991 for initial moderate PM—lu - “ made pnorto the attainment date of -.‘ shuttle service are not required to be nonattainment areas). (See 57 FR - .- - ‘December 31.1994 (only 46 day, beyond the - implemented until June 1, 1994. - 13539.) As to the number of mulestones,: November 15, 1994 milestone achievement date) - ‘Accordingly. the State did not take - - EPA believes that at least two - - . - - will satisfy the Ei ,t milestone requirement (57 — credit for these measures in the 1994 13539). -The de minimla timing differential makes . - - milestones must be init iaIly addressed. - it administratively impracticable to require say, attainment demonstration for Aspen.) Thus, submittais to address the SIP - - milestone and attainment demonstrations. - Compliance with certain measures, such- ------- 47094 Federal Register I VoL 59; No. 177 I Wednesday, September 14, 1994/ Rules and Regulations ’ • as the I percent fines limit with regard- - adequate enforcement capabilities to Aspën PM—i0 ñonattàininentarea. For. to street sanding material used, must be-- -ensure compliance with the Aspen PM- further-information, see the TSD - determined in accordance with 10 regulations. The TSD contains accompanying this document -- appropriate test methods. The - further information on the State-wide 9. Revisions to the Nonattainrnent Area regulation provides that compliance regulations, enforceability requirements. Boundary - wtththe lpercentflneslimitwillbe -- andadiscussionofthepersonneland determined in accordance with the funding intended to support effective The Aspen nonattainment area American Society for Testing Materials implementation of the control measures. boundary as announced on November 6, (AS M) “Standard Method for Sieve 1991 (see 56 FR 56736) is currently Analysis of Fine and Coarse Aggregate ” 8. Contingency Measures - - defined as the city limits of Aspen in 40 EPA belIeves this method is appropnate As provided in section 172(c)(9) of the CFR 81.306. However, on June 20. 1991. let deterni ning compliance with this Act, all moderate nonaUainment arel the State adopted a more inclusive - - provision. - SIPs that demonstrate attainment must boundary for the Aspen PM—la The TSD associated with this action - include contingency measures. See nonattainment area, which included contains further information on - generally 57 FR 13510—13512 and some of the area surrounding the City of enforceability requirements including: a 13543-13544. These measures were Aspen. This revised boundary was desaiptioo of the rules contained in the required to be submitted by November submitted with the Aspen PM-la SIP in SIP and the source types subject to - 15, 1993 for the initial moderate PM—b January of 1992. As discussed in the them, test methods; and reporting and - nonattaininent areas. Contingency December 23. 1993 Federal Register recordkeeping requirements. EPA has measures should consist of other document, the SIP provided a reviewed the State’s nonattainment area available measures that are not part of demonstration showing that the revised -regulation. as revised in the State’s the area’s core atthinment control boundary represented the reasonable December 9, 1993 SIP submittal, for strategy. These measures mu t take - Aspen airs)ied by considering the local enforceability and has determined that effect without furthir action by the State topography, meteorology, and land use it meets alLof the criteria included Lu- or EPA. upon a determination by EPA- practices (see 58 FR 68100). EPA the September 23,1967 Potter -. ; that the area has failed to make RFP or . proposed to amend the Aspen PM—b Memorandum. . . - - .. attain the-PM-b NAAQS by the - nonattninment area boundary in its - The State of Colorado has a program - applicable statutory deadline. The December 23. 1993 Federal Register that will ensure that the measures State’s December 9, 1993 revIsion to the documet. and no con ’ mn its were- - - contained in the SiP submittals for - Aspen PM-b SIP Included the-j received on that proposed action. Aspen are adequately enforced. The -. following contingency measures: Therefore. EPA is finalizing the. ColoradoAirPoilutionControl Division Section lU.D. of the State regulation amendments to the Aspen PM—b (APO)) has the authority to implement entitled “Nonattnlniiient Areas” - nonattainment area boundary in this and enforce all emission limitations and’ requires that (1) each user of street - document. Pursuant to section 110(kj(6) control measures adopted by the - -. - sanding material In the Aspen PM-la of the Act, EPA Is correcting the Aspen - Colorado Air Quality Control - - . . nonattainmentarea reduce the amount M—l0 nonattainment area boundary In - Commission (A C). In addition, ;-. -, of street sanding materials applied by 20 40 CFR 81.306 to include some of the Colorado statute rovides that the APCD- percent from the base sanding amount - ‘additional area surrounding the city of shall enforce sgsin t any ‘person” who and (2) Pitkiti County pave 3 bus - . - Aspen. The legal definition of the - ‘ -; yiolates the emission control regulations - pullouts on Highway 82 (which Is the ‘ revised Aspen nonattainrnent area. of the AQCC. the requirements of the - - main highway through the City) and -- - . submitted by the State is as follows: SIP, or the requirements of any permit -- pave the Highway 62 road shoulder at - - The area encompassed by the - • The deflnition.of.”person” includes, -:- the Owl Creek turnoff establishing a — following Parcel ID numbers, as defined among other things. any. ”munlcipal - new paved lane at this intersection. The - by the Pitkin County Planning corporation. county.city and county or - - State’s regulation rovldes thatupon a Department: 2737—29,2737—28. 2737— - other political subdivision of the State.” ‘determination by EPA that the area - 21, 2737—20.2737—19.2137—18.2737— - -. - such as the City of Aspen. Many of the - ., failed tomake RFP or attain the NAAQS ‘17, 2737—08. 2737—07,2737—06,2735— control measurei adopted by the AQ( by the Decéniber 31, 1994 statutory 22. 2735—l5 2735—14.2735—13.2735— - in the State nonatt..h mont regulation deadline, the reduction in sanding - 12,2735—11,2735—10,2735-03,2735-- require the City of Aspen and Pitkin - materials applied must be implemented - 02. 2735-01,2641—31,2643—36,2643-- - - County to implement the measures. This within 60 days of EPA’s determination 35,2643—34.2643-27,2643—26. - - - is allowed under section l10(a)(2)(E) of - and that the paving is to be completed A map displaying these Parcel ID the Act, as long as the State provides the as soon as possible, but no later than the numbers can be obtained by calling or necessary assurances that the State has - — end of the first complete paving season,, - writing the Pitkin County Planning - the responsibility for ensuring adequate . after EPA’s determination. These - Department at 130 South Calena Road. implementation of the-plan provisions.-- — provisions will become legally effective. Aspen, Colorado 81611; (303) 920-5090. - Since State statute allows for the - - - -- immediately upon EPA’s determination FinalAction ‘ -- .- - - - enforcementagainstanycountyorcity - that theAspen area failedtomakeRFP - - and since the State regulation — - - — ---. or attain the NAAQS by the December EPA is approving the State of - - cont’ ining the control measures was - - 31.1994 statutory deadline. EPA- “: - Colorado’s PM—b SIP for the Aspen adopted by the AQCC. the APCD has- - believes the regulation provides --: PM-IC nonattainznent area, which was adequate authority to ensure - - - — —- -i--: adequate timeframes for - ‘- - - submitted by the State on January 15. implementation of the control measures —implementation.- - -- -. - 1992, March 17 T 1993, and December 9, at the local leveL State statute provides • . - Afterreview of the contingency - - - 1993. as meeting those moderate PM—b - for civil penalties of up to’SlS,OOO per’ - measures described above, EPA believes SIP requirements which were due tobe day per-violation for any person in - - -‘ they are adequate to meet the - --. - — - - submitted November 15, 1991: Among .violation of these requirements.ancl .---‘---requirements of section 172(c)(9) of the-..: other things. the State of Colorado has - cz mini.I penalties are also provided for ’ . Act. Therefoie, EPA Is approvingthe -. -- adequately demonstrated that the Aspen -. .-in-the State statute, Thus., the APCL! has- PM i0 contingency.measures for the - --- - r moderate-PM—b nonattainment area ------- Federal Register / Vol. 59. No: 177 / Wednesday. S ptemb’rl4 . 1994 1 Rules and Regulations 47095 will attain the PM-ID NAAQS by and Radiation. The Office of’ - . Date± August3I I994. : December-31. 1994. As discussed above, Management and Budget (0MB) has jer.i w.i crsw. ‘ - ‘ EPA’s approval does not include the exempted this regulatory action from State’s voluntary no-drive day Executive Order 12866 review. . - Acting Regional Adzzirnstratcc. - Chapter I, title 40 of the Code of provision. on which EPA is not taking Under the Regulatory Flexibility Act, - Federal Regulations is amended as action at this time. EPA’s approval also u.s c 800 at seq., EPA must prepare follows: includes the PM—b contingency measures for Aspen. a regulatory fle,dbilit r analysis .. . - . * included with the State’s December 9; assessing the impact of any proposed or PART 52—(AMENDED] final rule on small entities. 5 U.S_c. 603 - 1993 SIP revision. As noted, on January 14. 1993. the and 604. Alternatively. EPA may certify - 1. The authority citation for part 52 State submitted revisions to its permit that the rule will not have a significant cornice to read as follows program for the construction and economic impact on a substantial Authority 42 U.S.C. 7401-7671q. operation of new and modified major number of small entities. Small entities stationary sources of PM-ID to comply include small businesses, small nottor- Subpart 0—COlOrado with the amended Act. EPA willbe profitenter rise ndgovenim.nt - z.Se52.3zoisemende iby taking action on these requirements . entities with j sdiction over,. . - - - adding paragraph (c)(65) to read as a separate Federal Register document populations of less than 50,000; follows: - - Lastly, EPA is amending the SIP approvals undez-section 110 and ___ _____ nonattainment area boundary for the subchapter I. part D of the Act do not lden1ruc dMnof jllai. Aspen nonattainment area to include create any new requirements, but * * - * some of the area surrounding the City of simply approve requirements that (c)* * * Asoen - state a (65) On January 15,1992. March 17. ‘the EPA is publi ’ hing this action - because the Federal SIP-approval does 1993, and December 9, 1993, the without prior proposal because the not impose any new requirements. i, Governor of Colorado submitted Agency views this as a noncontroversial certify that It does not have a significant revisions to the Colorado State-. action and anticipates no adverse impact on small enUtie ed. - - mplementatum plan (SIP) to satisfy comments. However, in a separate Moreover. due to the nature of the - - those moderate PM—b Twialfaininent document In this Federal Register FOderal-state relationship wider the , area SIP requirements for Aspen. - publication, the EPA is proposing’to preparation of a regulatory flexibility -- Colorado due to be submitted by - approve the SIP revision should adverse analysis would constitute Federal November15, 199L Included In the or critical comments be filed. Under the inquiry into the economic - 1)ecember 9.1993 submittal were PM- procedures established in the May 10. reasonableness of state sctlon..The Act contingency measures for Aspen to 1994 Federal Register, thiS action will fothida EPA u . - . satisfy the requirements of section be effective on November14, 1994 concerning SiPs on such grounds • 172(C)(9) of the Act due to be submitted iinh , by October14. 1994. adverse ° ‘ Union Electhc Co. v u.s. gp ,A , • by November 15. 1993. - - - ‘ critical Comments are received, - - U , 256 (S0 1976) (i) Incorpomlioiby reference. If the EPA receives such comments. - 7410(ali2). -: - -; . . (A) Colorado Air Quality Control-.. this action will be withdrawn before the Comm ic ion NosraHniIim niAieas effective date by publishing a . - - - ‘Under iectibii 307tb)(1) fthe Clean regulation, all of S*thon ilL “Asp&.. i subsequent notice that will withdraw Air Act, petitions for Judicial review Of ‘ Pitkin County PM-b Nonattainment’ - the final action.- All public comments - - ; hi - action must be filed In the United - Area except Section ULCO., adopted -. received will then be addressed in a - States Court of Appeals for the - -. j U 21.1993 effective on Mardi -, subsequent final rule based on this . apProPuate clitnit by NOVember14. . --2.1993, with revisions adopted on-: - action serving as a proposed rule. The— 1994. Filing. petition for - H - NoVember 12, 1993, eff*klive on’ -. EPA will not institute a second - reconsideration by the Admiâistrator of December30. 1993: -. comment period on this action. Any - this final rule does rIot affect the finality - 3. Section 52.332 is amended by - parties interested in commenting on this of this rule for the purposes âf judicial adding paragraph (e) towed as foUows: action should do so at this time. u no review nor does itextend the time- “ ; -- - -: - - . ‘-- -_ — - -- such comments are received, the public vith n which a petition for Judicial ... , § ‘ 23” MOdSIatB PM40 Ne*htahhIpIeiit is advised that this action will be review may be filed. and shall not . . - - A a Ptens . - i. -: . . - : - effective on November 14. i . - - - postpcnetbeeffectivexiessof srk.h rule. a • - -. - - Nothing in this action should be - - or action. This action may not be -;- -. - - (e) On January 15,1992. March17, construed as permitting or allowing or challenged later In proceedings to - - 1993. and December 9, 1993. the - - -- establishing a precedent for any future - enforce its requirements. (See section. . ., Governor of Colorado submitted the request for a revision to any SIP. Each 307(b)(2).) - - . - - moderate PM—b nonatt2inment area - - plan for the Aspen area. The submittals request fbr a revision to the SIP shall be list of Subjects - - - . - were made to satisfy those moderate considered separately in light of specific - - technical, economic, and environmental 40 CFR Part 52 - - - - -. . . PM—b nonattninvnent area SIP - factors, and in relation to relevant . - - - - . , requirements which were due for Aspen statutory and regulatory requirements. - pollution control Hydrocarbons, on November 15.1991. The December 9. This action has been classified as a Incorporation by reference, Nitrogen - 1993 submittal was also made to satisfy -- Table 2 action by the Regional- - dioxide, Particulate matter, Reporting - the PM—b contingency measure ‘- . -. Administrator under the procedures and recordkeeping requirements, Sulfur requirements which were due for Aspen -- published in the Federal Register on dioxide. Volatile organic compounds. . on November-15. 1993.. . - -- -_ - January 19, 1989 (54 FR 2214—2225). - ‘40 CFR Port 81 - - - . - ‘ PART 81—fAMENDED) :- -: - revisedbyanOctober4,1993 - - - - - - -- - - .:‘ ‘— - -- memorandum from Michael H; Shapiro:’ - - -‘Air-pollutfoircontrol. National parks,’ “- 4. In 8i.308 . the ColOrado PM—b . - -‘t - -Acting Assistant -AdministratoE for Air - - -Wildeniess areas. - - -- - - — -- - NonaLtAinvnênt Areas table is amen ------- 47O96Federal Register I Vol. 59, No. 177 / Wednesday, September 14. 1994 / Rules and Regulations DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Public Land Order 7082 (WY - 3O -421 WW-8335 Partial Revoiiat lon of Secretarial Orders Dated October14, 1918, and April 8, 1919; WyomIng : - . AGENCY: Bureau of Land Management,- Interior. -- . , -. . ACTIotl: Public Lan4 Order. 1. . - SUMMARY: This oider parti ally revokes ‘ two Secretarial Orders insofar as they affect 863.98 acres of public lands. withdrawn br stock driv 1 eway purposes. The lands are no longer needed for this purpose and the revocation is needed to ‘permit disposal of the lands through exchange under Section 206 of the Federal Land Policy and Management Act of 1976.43 U.S.C. 1716. This action will open the lands to surface entry unless closed by overlapping - withdrawals or temporary segregations of record. The lands have been and will remain open to mineral leasing.. EFFECTIVE DATE October 14, 1994. FR FURTHER INFORMATION CONTACT’. Duane Feick, ELM Wyoming State Office, P.O. Box 1828, cheyenne, Wyoming 82003,307—775—6127. By virtue of the authority vested In the Secretary of4he Interior by Section 2O4oftheFederalLandPolicyand Management Act of 1976,43 U.S.C. 1714 (1988), it is ordered as follows: 1. SecretarIal Orders dated October 14,1918, and April 8, 1919. which withdrew public lands for Stock. Driveway No44, are hereby revoked. insofar as they affect the following ? desaibedlands: . ,-- Sixth Prladpal Meridian -. T.SON.,R. IO 1W., . - Sec. 1. SW%NW% and W½SW%; - Sec. 2, lots I to 3, Inclusive, S½NE¾, and E½SE’/4 Sec 12. . - ,T.51N..R.1O IW., . Sec. 22. lots2 to6,Lndus lve,and SW%4SE¼ : . Sec. p. N½NEV4. SE¼NE¾, and - NE’/4SE’A; • Sec. 35, SE¾SWV - . The are desonbed eggregate 863.98 acres in Park County. .... -. - 2. At 9.1)0 a.m. on October 14,1994, .‘ the lands described In paragraph I will be opened to operation of the public . - land laws generally, subject to valid existing rights, the provisions of existing withdrawals, other segregatlons of record, and the requirements of applicable law. All valid applications received at or prior to 9:00 am. on - Octobei 14,1994, shall be considered as simultaneously filed at that time. Those received thereafter shall be considered inthe rderofflling.- . I .’ • Dated: August 9,1994. - BobArmstrong, Ass i nant Secretciyof the Interi or. - - IFR Doc. 94—22658. FIled 9—13—94:8:45 am) mu .mo coca 43IO- -P -. . under Pitkin County by revising the - entry for “Aspen” to read as follows: . - §81.306 Colorado. - * * * * I . . COLORADO—PM-i 0 NONATrAINMENT AREAS . Designation Designated area - Date Type . C lassification — Date Type .. .. . . S . PItIdn County . . AspenlPitldn County Area ..... 1 1l15 O Nonatlainment The area encompassed by the following Parcel ID nusEers. as defined, 11115190 Moderate. . by the Pdkin County Planning Depailment 2737—29, 2737—28, 2737—21. 2737—20, 2737—19, 2737—18, 2737—17, 2737-08, 2737— 07, 2737-06, 2735-22. 2735-15, 2735—14, 2735—13. 2735-12, 2735—11, 2735—10, 2735-03, 2735-a, 2735-01, 2641—31. 2643— - 36.2643-35.2643—34. 2643—21.2643—26. - , - • S • — . •. • . -.. . . •. * *. . • (FR Doc. 94-22525 Filed 9-13-94; &45 eta) coos i eo .eo .p- ------- IO UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards Research Triangle Park, North Carolina 27711 October 20, 1994 MEMORANDUM SUBJECT: Considering PM-1O Air Quality Data and the Approaching Attainment Deadline While Reviewing Attainment Demonstrations for the Initial Moderate PM-10 Nonattainment Areas FROM: Joseph W. Paisie, S0 2 /Particulate Matter Pr gr ms Branch (MD-15) TO: Chief, Air Branch Regions I-X As you know, the December 31, 1994 attainment deadline for the initial moderate PM-b nonattainment areas is rapidly approaching. The EPA has not completed rulemaking action on the attainment demonstrations and other related State implementation plan (SIP) requirements for some of these areas. This memorandum is to alert you of some immediate concerns associated with such rulemaking actions. In particular, EPA should examine the actual air quality data of the affected area in conjunction with its review of the SIP requirements to determine what the air quality data reveals about the area’s potential attainment status. The EPA should avoid taking an action on an attainment demonstration (and associated control strat gy) that would be inconsistent with the actual air quality data. If EPA concludes that a full approval is not appropriate, EPA should nevertheless assess whether the submittal contains requirements that would at least advance the protection of PM-10 air quality. The EPA may approve a submittal for the limited purpose of improving or strengthening the SIP. Any such “limited” approval should be accompanied with or followed by a corresponding disapproval as specified in the July 9, 1992 memorandum, “Processing of State Implementation (SIP) Submitta].s.” Finally, EPA’s use of its conditional approval authority was r cent1y challenged. The reviewing court concluded that EPA may grant conditional approval of substantive, but not entirely ------- 2 satisfactory, submittals containing at least some specific enforceable measures [ NRDC v. EPA , 22 F.3d 1125, 1134-1135 (D.C. Cir. 1994)]. The EPA must exercise its conditional approval authority responsibly and give appropriate consideration to the approaching attainment deadline. Generally, EPA should no grant conditional approvals that are based on a commitment to adopt- -after the attainment deadline- -measures that are necessary for timely attainment. Please consult with us if you are considering granting a conditional approval. If there are any questions concerning the above issues, please contact Larry Wallace at (919) 541-0906. CC: Rich Ossias, OGC Vickie Patton, OGC Ken Woodard, AQMD / ‘4.C’ 1 pe : I . ‘ P ’ ‘ ‘ ‘ ‘, a Z1 b. C ... £UC”M ‘ ? - .- pi 2 / - / *àI d . 4 tL ‘ - ;, j.’ .it- ( , 3 f /’9d — i ( cc LC j / (DO4c j4 lL f’ $%J V *p..øvL a4 .- 2lJ t -.i J I A. 7 Q 1 J ‘- a Al s 2( 5/I ’ — fLP44 ( 4 A. (e- 6 icE . .. 0 , ------- #s (o sr 4 r, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards _____ Research Triangle Park. North Carolina 27711 ‘1,, 1 QØ1t NOV14 1994 MEMORANDUM SUBJECT: Attainment Determination and the Processing of Ini tial PM- 0 Nonattainment Area SIP’S FROM: Ct or Air Quality Strategies and Standards Division (MD-15) TO: Director, Air, Pesticides and Toxics Management Division, Regions I and IV Director, Air and Waste Management Division Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X The EPA has the responsibility, pursuant to the Clean Air Act, for making determinations as to whether PM-1O nonattainment areas have attained or failed to attain the standard by the applicable attainment date. These determinations must be made no later than 6 months after the attainment date for the areas. The attached policy and guidance memorandum contains the criteria for making these determinations and provides for granting a 1-year extension of the attainment date. The policy also provides information on the reporting requirements for quantitative emission reduction milestones. Each Region should make sure that this information is made available to States containing PM-b nonattainment areas. The attainment date for the 70 initial moderate nonattainment areas is December 31, 1994. The SIP’s for these areas were to be submitted to EPA by November 15, 1991. It has come to my attention that, in many cases, EPA may not have taken action on the State’s plan by the attainment date. In such cases, EPA will find itself in tne awkward position of having to iVi ------- 2 make attainment determinations for areas which may not have approved plans. I urge you to give a higher priority to reviewing and taking action on these SIP’s in order to avoid this type of situation. If there are any questions concerning the attached policy, please contact Larry Wallace at (919) 541-0906. Attachment cc: Joe Paisie, AQSSD Rich Ossias, OGC ------- S’, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards ______ Research Triangle Park, North Carolina 27711 4( PqO ’ NO V 14 1994 MEMORANDUM SUBJECT: Criteria for Granting 1-Year Extensions of Moderate PM-1O Nonattainment Area Attainment Dates, Making Attainment Determinations, and Reporting on Qua t it at ej t 7 ee FROM: Sa l ’ Shaver, Director Air Quality Strategies and Standards Division (MD-15) TO: Director, Air, Pesticides and Toxics Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X Purpose Pursuant to sections 179(c) and 188(b) (2) of the Clean Air Act,’ the Administrator is to determine whether a nonattainment area has attained the PM-1O NAAQS by the applicable attainment date. The purpose of this memorandum is to provide the EPA Regional Offices and the State air pollution control agencies with the relevant criteria for making attainment determinations, to provide information on the criteria for granting attainment date extensions for moderate PM-b nonattainment areas, and to implement quantitative milestone requirements. 2 ‘The Clean Air Act is codified, as amended, at 42 U.S.C. 7401, et seq. The policies set out i this memorandum are intended solely as idance, do not represen final action, and are not ..pe for judicial review. They are not intended to bind the States and (continued...) ------- 2 Backaround The EPA has general authority to designate areas which violate the PM-b NAAQS as nonattainment pursuant to section 107(d) of the Act. Upon designation as nonattainment, these areas are classified, by operation of law, as “moderate” nonattainment areas (see section 188 (a) of the Act]. On the date of enactment of the 1990 Clean Air Act Amendments, PM-l0 areas meeting the qualifications of section 107(d) (4) (B) of the Act were designated nonattainment by operation of law. These areas included all former group I areas identified in 52 FR 29383 (August 7, 1987) and further clarified in 55 FR 45799 (October 31, 1990) any other areas violating the PM-10 NAAQS prior to January 1, 1989. All other areas were designated unclassifiable (see section 107(d) (4) (B) (iii) of the Act]. The EPA may redesignate any of these unclassifiable areas as nonattainment in accordance with section 107(d) (3) of the Act. States with areas which have been redesignated as nonattainment for PM-10 have the responsibility of developing and submitting to EPA a SIP which addresses the nonattainment air quality problem in the area. The EPA issued a “General Preamble” describing EPA’S preliminary views on the interpretation of various SIP requirements, including those requirements applicable to moderate PM-10 nonattainment areas. 3 Sections 172(c) and 189(a) of the Act outline some of the most important elements which must be contained in the SIP. Among these elements is the requirement to submit a SIP revision that provides for the implementation of reasonably available control measures (RACM) (including reasonably available control technology (RACT)] . States containing initial moderate PM-b nonattainment areas were required to submit SIP’s containing RACM by November 15, 1991, and these SIP’s were required to provide for .continued) public as a matter of law. This guidance contains EPA’s preliminary views, and EPA may modify this guidance at any time or act at variance with the guidance based upon analysis of specific circumstances. 3 See generally, 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992) 4 All references to RACM in this document include RACT, which is a subset of the RACM requirement. ------- 3 the implementation of RACM no later than December 10, l993. Affected States are required to demonstrate attainment of the PM-l0 NAAQS in these areas as expeditiously as practicable, and no later than December 31, 1994, or demonstrate that timely attainment is impracticable [ see sections 188(c) (1) and 189(a) (1) (B) of the Act). States containing areas redesignated as moderate PM-b nonattainment areas subsequent to the 1990 Amendments are required to submit SIP’s for these areas containing RAcM no later than 18 months after redesignation (see section 189(a) (2) (B) of the Act) - The SIP revisions are required to provide for the implementation of RACM no later than 4 years after redesignation as nonattairiment (see section 189(a) (1) (C) of the Act] . These SIP’S were required to demonstrate attainment of the PM-la NAAQS as expeditiously as practicable, but no later than the end of the sixth calendar year after redesignation as nonattainment or to demonstrate that timely attainment is impracticable [ see sections 188(c) (1) and 189(a) (1) (3) of the Act] Overview of the Policy I. Background The Administrator must determine whether PM-l0 nonattainment areas have attained the NAAQS within 6 months of the applicable attainment date, and the State must report on the quantitative milestones for the area within 90 days of the milestone date for the area. The attainment date for the initial PM-10 nonattainment areas is December 31, 1994. II. Attainment determination A. Attainment determination will be based upon whether an area has 3 consecutive years of clean air quality data. This determination will be made in accordance with EPA as prescribed under 40 CFR part 50, appendix K. B. Any discrepancies with the data will be resolved in accordance with 40 CFR part 50, appendix K, during the process of reviewing the data. Initial nonattainment areas were those areas designated n.’- ttaii-.r:.ant ur. r saction 107(d) (4) (B) of the Act. These areas wce required to implement RACM no later than December 10, 1993, pursuant to section 189(a) (1) (C) of the Act. ------- 4 III. Criteria for obtaining an extension of the attainment date for moderate areas A. The area must have no more than one measured exceedance at any monitoring site in the nonattainment area in the year preceding the extension year. B. The State must demonstrate that it is complying with all requirements that pertain to the area in the a licable SIP . The applicable SIP is the latest federally-approved particulate matter SIP for the nonattainment area (see section 302(q) of the Act] C. The EPA will request additional information from States - to make its decision on whether to grant an attainment date extension. The EPA will be disinclined to grant an attainment date extension unless the State can substantially demonstrate that certain information concerning the Act planning requirements have been completed. The EPA will expect the State to demonstrate that: 1. Control measures have been submitted in the form of a SIP revision and substantially implemented to satisfy the RACM/RACT requirement for the area. 2. The area has made emission reduction progress that represents reasonable further progress toward timely attainment of the PM-jO NAAQS. IV. Conseauences of failure to attain or aualifv for an extension A. The consequence of an area failing to attain the standard or qualify for an extension of the attainment date is that the area will be reclassified to serious by operation of law (see section 188 (b) (2) of the Act]. In addition, contingency measures must be implemented in any area which fails to attain the standard by the applicable attainment date. B. Upon reclassification, the State must. meet the planning requirements for serious PM-1O nonattainment areas. These requirements include, among other things, provisions for the implementation of best available control measures (BACM) no later than 18 months from the date of reclassification. C. The Regional Offices will prepare the Federal Register notices that identify the areas which will be reclassified’to serious or will be granted an extension of the attainment date. These determinations will be announced in the Federal Register following notice and comment rulemaking procedures. ------- 5 1. The EPA Headquarters will draft the Federal Register notice identifying the areas which have attained the standard. V. quantitative emission reduction milestones and reasonable further progress A. The PM-b nonattainment plan revisions demonstrating attainment must provide for quantitative emission reduction milestones which must be achieved every 3 years until the area is redesignated attainment and which demonstrate reasonable further progress for the area. 1. The State should address at least the first two milestones along with the moderate area SIP. a. The first milestone is the emission reduction progress made between the SIP submittal and the attainment date for the area. b. The second milestone should provide for maintenance to ensure that the area remains in attainment after the attainment date. 2. The PM-b nonattainment areas must provide for quantitative emission reduction milestones which must be achieved every 3 years an which demonstrate reasonable further progress until the area is r esignated to attainment. B. Within 90 days of the date on which the milestone for a nonattainment area occurs, each State in which all or part of such nonattainment area is located must submit a milestone report to EPA. This report must demonstrate that all of the measures in the SIP approved under section 189 of the Act have been implemented, that the milestone for the area has been met, and that reasonable further progress has been achieved. Thus, EPA has broad discretion in determining the manner of the submittal and the information contained in the submittal (see the detailed discussion concerning milestone reporting). VI. Reauests for redesignation to attainment A. If an area is determined to have attained the PM-b NAAQS by the attainment date, the area will remain nonattainment until all five of the requirements under section 107(d) (3) (E) of the Act have been met. Among the requirements of section 107(d) (3) CE) is that the State submit, and EPA approve, a SIP revision which satisfies the requirements of the 1990 Amendments. The rationale for the abc e policy statements are discussed in tail in the following actions. ------- 6 Determination of Attainment The EPA has the responsibility for determining whether a nonattainment area has attained the PM-b NAAQS by the applicable attainment date. 6 The EPA must make an attainment determination for the initial moderate nonattainment areas by June 30, 1995, no later than 6 months after the attainment date for the area. 7 The Act also requires EPA to publish a notice in the Register identifying those areas which failed to attain and reclassifying those areas as “serious” nonattainment areas. The EPA will be making attainment determinations for nonattainment areas based solely upon an area’s air quality data, and no special or additional SIP submittal will be required from the State for this determination. Section 179(c) (1) of the Act provides that the attainment determination is to be based upon an area’s “air quality as of the attainment date.” The EPA will make the determination of whether an area’s air quality is meeting the PM-10 NAAQS by the applicable attainment date based upon data gathered from air quality monitoring sites which have been entered into the Aerornetric Information Retrieval System (AIRS) data base. A PM-l0 nonattainment area’s air quality status is determined in accordance with appendix K of 40 CFR part 50. Attainment of the annual PM-10 standard is achieved when the annual arithmetic mean PM-10 concentration is equal to or less than 50 g/m3. Attainment of the 24-hour PM-b standard is determined by calculating the expected number of exceedances of the 150 g/m3 limit per year. The 24-hour standard is attained when the expected number of exceedances is 1.0 or less. A total of 3 consecutive years of clean air quality data is generally necessary to show attainment of the 24-hour and annual standard for PM-b. A complete year of air quality data, as referred to ‘See sections 179(c) and ].88(b)(2) of the.Act. 7 1n some cases, States may choose to submit moderate area SIP’s which include requests for redesignation to attainment before the applicable attainment date. In these cases, if EPA finds the SIP’s to be approvable, the SIP’s will be promulgated in the Federal Register . The EPA will make a determination of attainment for the area no later than 6 months after promulgation of the SIP approval in the Federal Register . This determination will be made in accordance with 40 CFR part 50, appendix K. The EPA will grant those requests for redesignation to attainment which satisfy all of the requirements of section 107(d) (3) (E) of the Act. ------- 7 in part 50, appendix K, is comprised of all 4 calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days.° The EPA will begin processing and analyzing data related to the attainment of PM-l0 areas immediately after the applicable attainment date for the affected areas. Current EPA policy, pursuant to 40 CFR part 58, sets the deadline for submittal of air quality data into the AIRS data base for no later than 90 days after the end of the calendar year. In order for EPA t o determine the attainment status of PM-lO areas, EPA must review the data for the 3 years prior to the attainment date for the areas. Due to the schedule for making attainment determinations, pursuant to sections 179(c) (2) and 188(b) (2), States should - submit the required air quality data for the year preceding the attainment date into the AIRS data base as expeditiously as practicable, but no later than 90 days after the attainment date for the area. States should identify any issues concerning the validity of the data or discrepancies related to the data during this time period. The EPA will address issues related to the adequacy of data on a case-by-case basis in accordance with 40 CFR part 50, appendix K. Section 179(c) (2) of the Act also states that EPA may revise or supplement the attainment determination at any time based upon more complete information or analysis concerning the area’s air quality as of the attainment date. The EPA interprets this to mean that in cases where there are discrepancies concerning the data or the validity of the data revealed subsequent to an attainment determination, EPA may later address these issues in accordance with EPA guidance as stated in 40 CFR part 50, appendix K. eunder 40 CFR 50.6(a), the 24-hour primary and secondary standards are attained when the expected number of exceedances per year at each monitoring site is less than or equal to one. In the simplest case, the number of exceedances at a site is determined by recording the number of exceedances in each calendar year and then averaging them over the past 3 calendar years. Under 40 CFR part 58.13, the minimum percentage of monitoring data which can be considered as sufficient to determine attainment for PM-1O at any given monitoring site is 75 percent. The amount of data required varies with the sampling frequency, data capture rate, and the number of years recorded at a monitoring site. More than 3 years of data may be considered if all additional representative years of data meeting the 75 percent criterion are utilized. Data not meeting this criteria may also suffice to show attainment; however, such exceptions mast approvcd by the app priate ‘ egional A ninistrator in accordance with EPA guidance (see part 50, appendix K, sections 2.0-2.3) ------- B While EPA may determine that an area’s air quality data indicate that the area may be meeting the PM-b NAAQS for a specified period of time, this does not eliminate the State’s responsibility under the Act to adopt and implement an approvable SIP. If EPA determines that an area has attained the standard, the area will remain classified as nonattainrnent until the State has requested, and EPA has approved, redesignation to attainment for the area. In order for an area to be redesignated as attainment, .the State must comply with the five requirements listed under section 107(d) (3) (E) of the Act. Among other things, section 107(d) (3) CE) requires that EPA determine that an area has met the PM-iD NAAQS and that the State has submitted a SIP which has been approved by EPA. 9 Attainment Date Extension Criteria for Moderate Areas If a State containing a moderate PM-iD nonattainment area does not have 3 consecutive years of clean air quality data to demonstrate that the area has attained the PM-iD NAAQS, the State may apply for a 1-year extension of the attainment date. The EPA may extend the attainment date for 1 year only if the State submits an application for the affected nonattainment area satisfying all of he...fo1lowing requirements: .1. - The rea1nust have no more than one exceedance of the 24-hour PM-b NAAQS in the year preceding the extension year and the annual mean concentration of PM-10 in the year preceding the extension year must be less than or equal to the PM-iD NAAQS.’° Data requirements for purposes of making comparisons with the 24-hour and annual PM-b NAAQS must be consistent with section 2.3 of 40 CFR part 50, appendix K. 9 See “Procedures for Processing Requests to Redesignate Areas to Attainment” memorandum to Regional Air Directors from John Calcagni, Director of the Air Quality Management Division, September 4, 1992. ‘°The Act states that no more t.han one exceedance may have occurred in the area (see section 189(d) (2)] . The EPA interprets this to prohibit extensions if there is more than one measured exceedance of the 24-hour standard at any monitoring site in the nonattainment area. The number of exceedances will not be adjusted to expected exceedances as long as the minimum required sampling frequencies have been met. ------- 9 2. The State must demonstrate that it has complied with all requirements and commitments pertaining to the affected nonattainment area in the applicable implementation plan.” Requirements and commitments in the “applicable implementation plan” include SIP revisions approved by EPA under section 110(k) of the Act and FIP’s promulgated by EPA under section 110(c) (1) of the Act [ see section 302(q) of the Act’ 2 [ see generally section 188 Cd) of the Act]. The authority delegated to the Administrator to extend attainment dates for moderate areas is discretionary. Section 188(d) of the Act provides that the Administrator “may” extend the attainment date for areas that meet the minimum requirements specified above. The provision does not dictate or compel that EPA grant extensions to such areas. In exercising this discretionary authority for PM-1O nonattainment areas, EPA will examine the air quality planning progress made in the moderate area. In addition to the two criteria specified in section 188 Cd), EPA will be disinclined to grant an attainment date extension unless a State has, in substantial part, addressed its moderate PM-b planning obligations for the area. While States are encouraged to take expeditious steps toward completing SIP revisions which satisfy the requirements of the Act, Federal approval of PM-b SIP requirements is not required in order to be granted an attainment date extension. The EPA, however, will expect the State to have adopted and substantially implemented control measures submitted to address the requirement for implementing RACM/RACT in the moderate nonattainment area, the central control requirement that applies to such areas. 13 The EPA believes that requesting the State to demonstrate that control measures have been adopted and are being implemented for areas seeking an extension is a reasonable expectation because the implementation of the control measures is an “The PM-10 SIP revisions required under the 1990 Amendments are not included in the definition of “applicable implementation plan” if EPA has not taken final rulemaking action to approve the revisions. ‘ 2 States were required to submit PM-b SIP revisions for initial moderate nonattainment areas on November 15, 1991. In the instances where EPA will not have taken final rulemaking action on the State’s moderate area SIP revision prior to granting the attainment date extension for the area, the applicable SIP for the area would be the most recent federally- approved particulate matter SIP for the area. ‘ 3 See sections 172(c) (1) and 189(a) (1) (C) of the Act. ------- 10 appropriate indication that the improvement in air quality, evidenced by the low number of exceedances, reflects the application of permanent steps to improve the air quality, rather than temporary economic or meteorological changes. As a part of this showing, EPA will expect the State to demonstrate that the PM-10-nonattainment area has made emission reductions amounting to reasonable further progress toward attainment of the PM-b NAAQS as defined in section 171(1) of the Act. In order to demonstrate that the control measures have been adopted and are being implemented, and that reasonable further progress is being met, the State must submit an application for an attainment date extension in the form of a report similar to the quantitative emission reduction milestone report discussed - below. (See section below on the criteria for the quantitative emission reduction milestone report.) This report may be submitted to EPA by the governor or his/her designee no later than 90 days after the attainment date for the area. The EPA Regional Offices will address a State’s request for a 1-year extension of the attainment date through the comment and rulemaking process no later than 6 months after the applicable attainment date. If the State cannot make a sufficient demonstration that the area has complied with the extension criteria stated above, and EPA determines that the area has Tiot timely demonstrated attainment of the PM-b NAAQS, the area will be reclassified as serious by operation of law pursuant to section 188(b) of the Act. If an extension is granted at the end of the extension year, EPA will again determine whether the area has attained the PM-10 NAAQS. If the requisite 3 consecutive years of clean air quality data needed to demonstrate attainment are not met, the State may apply for a second 1-year extension of the attainment date. In order to qualify for the second 1-year extension of the attainment date, the State must satisfy the same requirements listed above for the first extension. In addition, EPA will consider the State’s PM-10 planning progress for the area similar to its evaluation of the first extension request. However, EPA may grant no more than two 1-year extensions of the attainment date to a single nonattainment area (see section 188(d) of the Act] Conseauences for Moderate Areas that Fail to Timely Attain the PM-lU NAAOS The discussion which follows addresses the consequences of EPA’s determination that a moderate area has failed to timely attain the PM-b NAAQS. The consequences described below apply with equal force to moderate areas that fail to attain the PM-b NAAQS by the initial attainment date, that are not granted extended attainment dates, or that fail to meet an extended attainment date. ------- 1]. If EPA finds that a moderate area is not in attainment after the applicable attainment date, the area will be reclassified by operation of law as a serious PM-lO nonattainment area.’ 4 The EPA Regional Offices will identify the areas that have failed to attain the PM-lO NAAQS and reclassify them as serious, through the notice and comment rulemaking process in the Federal Register , no later than 6 months following the attainment date. For efficiency, the Regional Offices may also choose to identify those areas which have been granted a 1-year extension of the attainment date in the same Federal Register notices. Within 18 months after reclassification of an area as serious nonattainment, the affected States must submit, among other requirements, SIP’s containing provisions to assure that best available control measures (including best available control technology) are implemented no later than 4 years after reclassification.’ 5 In addition, contingency measures must take effect upon a determination by EPA that an area has failed to timely attain the PM-b NAAQS. ’ 6 Moderate area plans are required to provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the NAAQS by the applicable attainment date. Such measures are to be included in the plan as contingency measures to take effect without further action by the State or EPA, upon a ‘determination by EPA that the area has failed to achieve reasonable further progress, or to timely attain the NAAQS. For the initial moderate nonattainment areas, EPA established November 15, 1993 as the due date for submission of contingency measures (see General Preamble (57 FR 13543), April 16, 1992)]. The General Preamble contains significant guidance about the implementation of the contingency measure requirement.’ 7 The EPA is currently developing further guidance on contingency measures which will be forwarded to the States and Regional Offices at a later date. The,EPA interprets the requirement that contingency measures “take •effect . . . without further action by the State, or (EPA]” to mean that no further rulemaking activities by the State or EPA ‘ 4 See section 188(b) (2) of the Act. ‘ 5 See section 189(b) of the Act and 59 FR 41998 (August 16, 1994 (guidance on serious P: i-bO nonattainment area SIP requirements including BACM)]. 16 See section 172(c) (9) of the Act. “See 57 FR 13510 and 13543-44. ------- 12 would be needed to implement the contingency measures. 18 In general, EPA will expect all actions needed to affect full implementation of the measures to occur within 60 days after EPA notifies the State of its failure to attain the, standard. Contingency measures have not been submitted for several of the initial moderate PM-10 nonattainment areas. The EPA made findings of failure to submit for these areas in January of 1994. States which failed to submit contingency measures have 18 months to correct this deficiency before sanctions must be imposed . (see section 179 of the Act and 59 FR 39832 (August 4, 1994)] Ouantitative Emission Reduction Milestones and Reasonable Further Pro res s VII. Milestone subniittals The PM-10 nonattainment area SIP’S demonstrating attainment must include quantitative emission reduction milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate reasonable further progress, as defined in section 171(1) of the Act, toward timely attainment. 19 The EPA has issued general guidance on the implementation of this requirement for moderate PM-10 nonattainment areas as well as for serious PM-b nonattainment areas 20 The Act does not clearly indicate the starting point for counting the first 3-year period or how many milestones must be initially addressed. In the General Preamble, EPA addressed the statutory gap in the starting point for counting the 3-year milestones, indicating that it would begin from the due date for the SIP revision containing the control measures for the area, i.e., November 15, 1992. for initial moderate PM-b nonattainment areas (see 57 FR 13539). Section 189(c) plainly provides that quantitative milestones are to be achieved “until the area is redesignated attainment.” However, this endpoint for quantitative milestones is speculative because redesignation of an area as attainment, is contingent upon several factors and future events. The EPA believes that it is unreasonable to require planning for each nonattainment area to cover quantitative milestones several years into the future based ‘ 8 See section 172(c) (9) of the Act and 57 FR 13512. ‘ 9 See section 189(c) of the Act. 20 See 57 FR 13539 for the PM-1O moderate area guidance on milestones and 59 FR 41998 for guidance on milestones for serious nonattainment areas. ------- 13 on the possibility that such time may elapse before an area is in fact redesignated to attainment. On the other hand, EPA believes that it is reasonable for States initially to submit a number of milestones sufficient to ensure that there is ongoing air quality protection beyond the attainment deadline. This will help to ensure that areas timely attaining the PM-b NAAQS do not fall out of attainment before qualifying for redesignation. The EPA believes that at least two milestones should initially be addressed. Thus, submittals to address the SIP revisions due on November 15, 1991 for the initial moderate PM-1O nonattainment areas should have demonstrated that, at a minimum, the following two milestones will be achieved: Cl) First milestone--November 15, 1991 through November 15, 1994; and - (2) second milestone--November 15, 1994 through November 15, 1997. In all instances, additional milestones must be addressed and submitted at 3-year intervals if an area is not redesignated attainment. The EPA has previously indicated that for the initial PM-iC moderate nonattainment areas that demonstrate timely attainment of the PM-b NAAQS, the emission reduction progress made between the SIP submittal (i.e., due date of November 15, 1991) and the attainment date (i.e., no later than December 31, 1994) will satisfy the first quantitative milestone. 21 For areas that demonstrate timely attainment of the PM-bC NAAQS, the milestones beyond the attainment date should, at a minimum, provide for continued maintenance of the standards. The EPA intends to provide further guidance at a later date concerning the application of quantitative milestones and reasonable further progress for moderate nonattainment areas which demonstrate that attainment by the applicable attainment date is not practicable. Those moderate nonattainment areas designated subsequent to enactment of the 1990 Amendments will similarly be expected to initially submit two milestones. States are required to submit SIP’S for these areas 18 months after their redesignation as nonattainment. 22 The attainment date for new PM-iD nonattainment areas is “as expeditiously as practicable” but no later than the end of the sixth calendar year after an area’s designation as nonattainment. 23 :gee 57 FR 13539. 22 See section 189(a) of the Clean Air ct. See section 188(c) (1) of the Act. ------- 14 Because the SIP revision, including the quantitative milestone submittal, for a new nonattainment area is due 18 months after the area is designated as nonattainment, the first 3-year milestone is to be achieved 4 1/2 years after the nonattainment redesignation. The second quantitative milestone must be achieved 3 years after the first milestone or 7 1/2 years after the nonattainment redesignation. Therefore, the second milestone will fall at least a year and a half after the attainment deadline if a maximum of 6 years is needed to attain the PM-b standard. The second quantitative milestone shou],d provide for continued emission reduction progress toward attainment and should provide for continued maintenance of the standard after the attainment date for the area. Subsequent milestones must be submitted at 3-year intervals if an area is not redesignated to attainment. Thus, if an area is not redesignated to attainment by the due date for when the second milestone must actually be achieved, a third milestone must be submitted. The third milestone should be submitted at the same time that the State is required to submit a demonstration that the second milestone has been met, which is 90 days after the milestone is due, as explained in section IX below. This pattern of submitting subsequent milestones along with the demonstration for the previous milestone should be continued even if the moderate nonattainmnent area is reclassified as serious. Submittal of milestones must continue until the area is redesignated to attainment. VIII. Reasonable further progress In addition to addressing quantitative emission reduction milestones, PM-10 nonattainment plans are also required to demonstrate reasonable further progress. 24 Reasonable further progress is defined as “such annual incremental reductions in emissions of the relevant air pollutant as are required by [ part D, title I of the Act] or may reasonably be required by the Administrator for the purpose of ensuring attainment of the [ NAAQS] by the applicable date.” 25 The SIP’s for PM-b nonattainment areas should include detailed schedules for compliance with applicable control requirements in the areas and accurately indicate the corres- ponding annual emission reductions to be realized. In reviewing SIP revisions, EPA will determine whether the annual incremental emission reductions to be achieved are reasonable in light of the statutory objective to ensure timely attainment of the PM-b NAAQS. Additionally, EPA believes that it may be appropriate f or 24 See sections 172(a) (2) and 189(c) (1) of the Act. 25 See section 171(1) of the Act. ------- 15 States to require early implementation of control measures that are not capital intensive (e.g., controlling fugitive dust emissions at a stationary source) while phasing in contxol measures that require significant investment, such as the installation of new hardware. The EPA will generally as ess whether an area has achieved reasonable further progress in conjunction with determining its compliance with the quantitative emission reduction milestone requirement. Thus, as indicated below, when a State demonstrates an area’s compliance with a quantitative milestone, it should also address whether reasonable further progress has been achieved during each of the relevant 3 years. The EPA is currently developing further guidance on reasonable further progress which will be forwarded to the States and Regional Offices at a later date. IX. Milestone and reasonable further proaress re ortin Within 90 days of the date on which a milestone applicable to an area occurs, each State in which all or part of such area is located must demonstrate the following to EPA: (1) All measures in the plan approved under section 189 of the Act have been implemented, and (2) the milestone has been met. The demonstration must be submitted in such form and manner and must contain such information and analyses as EPA requires (see section 189(c) (2) of the Act]. Thus, EPA is granted broad discretion in determining the manner of the submittal and the information contained therein. In order to demonstrate that an area has met a quantitative milestone, the State must generally submit a report which demonstrates that the area has implemented R.ACM/RACT and has achieved the emission reductions predicted in the quantitative milestone for the area. 26 More specifically, the State should provide the information outlined below. A. RACM implementation The report should identify the PM-b sources that are located in the area. The RACM requirements adopted by the State to control sources of PM-b should be identified, and the report should specify the steps that have been taken to implement each control measure, the percent of implementation that has been achieved, and an estimate of the reductions achieved. The State should describe how the estimate of the emission reductions was made. 26 See sections 172(c) (1) and 189(a) (1) (C) of the Act. ------- 16 A table may be used to summarize the source(s)/source category(ies) and associated control measures. This table should include an estimate of PM-b emissions before and after controls. The report should provide an explanation of why 100 percent implementation was not achieved and why the projected emission reductions were not achieved. The State should also identify the steps that will be taken to achieve the emission reductions which were not met. The emission reductions should also be analyzed by year, and the report should assess whether reasonable further progress was achieved in each of the 3 years during the applicable milestone period. The EPA is not requiring the State to provide an updated emissions inventory to address the previous information. The EPA - is requesting that the State provide siqnificant and reliable estimates of the percentage of the control strategy that has been implemented in the nonattainment area and resulting emission reduction progress. Example: The two significant PM-10 sources in a nonattainment area consist of reentrained road dust from 10 miles of unpaved roads and the change out of 50 uncertified wood stoves. The RACM for the area is the paving of all 10 miles of road and the change out of all 50 wood stoves. The State estimates that a total of 1000 tons per year of emission reductions would be achieved from the paving of all 10 miles of unpaved roadways and 1000 tons per year from the change out of the wood stoves. The State also projects that 100 tons per year of emission reductions would be achieved from the paving of each mile of roadway and 20 tons per year from the change out of each wood stove. In the quantitative milestone report, the State indicates that, due to unforeseeable economic difficulties, it was only able to pave a total of 5 miles of roadway and change out of only 25 wood stoves. The State should report the estimated emission reductions achieved as a result of paving 5 miles of roadway and the change out of the 25 wood stoves. The State should project when it expects to complete the paving of the remaining 5 miles of roadway and the change out of the remaining 25 wood stoves. The State should also address the annual emission reductions that were expected and in fact achieved. ------- 17 ESTIMATED EMISSION REDUCTIONS TABLE Source Category Projected Emission Reductions Needed to Show Attainment After Implementation of RACN/RACT Percent Implementation Achieved Estimated Emission Reductions Achieved Point sources 900 66 600 Reentrained road dust from paved and unpaved roadways 1000 50 500. Residential wood combustion 1000 50 500 Mobile sources 500 100 500 Total 3400 66.5 2100 The State should explain why the projected emission reductions from point sources, reentrained road dust, and residential wood combustion were not achieved. The State should also indicate its plans to achieve 100 percent implementation of the control measures and the associated emission reductions. If additional control measures are needed to obtain the reductions, these measures should be identified and a schedule for implementation provided. B. Enforcement and compliance measures The quantitative emission reduction milestone report should identify when the affected sources in the nonattainment area were expected to come into compliance with RACM and which sources are not in compliance. The report should also indicate the percent of compliance being achieved for appropriate source categories (e.g., 50 percent compliance with the voluntary wood stove curtailment program). The report should state whether the applicable recordkeeping requirements are being met, and by what governmental entity(ies). An indication of whether any compliance tests have been conducted and the results of those tests should also be given. Compliance information is necessary to adequately assess the effectiveness of the control measures and the associated emission reductions likely achieved. C. Failure to submit a report or to meet a milestone If State fails to submit a required quantitative milestone report f.: an affected i?M-10 nonattainment area, or if EPA determines that such area has not met an applicable milestone, the State must submit a plan revision within 9 months after such failure or determination. The plan revision must assure that th. ------- 18 State will achieve the next milestone for the area by the applicable date, or attain the PM-b NAAQS, if there is no next milestone. 27 Therefore, if the projected quantitative milestone for an area was not achieved (i.e., the control measures were not implemented to the extent expected by the milestone due date), the report should indicate how the State plans to meet the next milestone or attainment date. The report should address the expected contents of the required plan revision, including the control measures that will likely be included and the emission reductions projected from the implementation of these additional measures. This plan revision must be submitted by the governor or his designee and must be adopted in accordance with the procedures required for all SIP revisions. If the State fails to submit the plan revision within 9 months after EPA’S determination that the milestone was not met or that the State failed to submit the milestone report, EPA will issue a finding of failure to submit and initiate the sanctions process for the area. 29 Reauests for Redesianation to Attainment A State that has a PM-b nonattainment area that has been determined by EPA to have attained the PM-iD NAAQS, may request redesignation to attainment. The Administrator may grant a request to redesignate an area to attainment if the following conditions are satisfied: 1. The EPA determines that the area has attained the NAAQS. 2. The applicable implementation plan for the area has been fully approved by EPA under section 110 (k). 3. The EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions. 4. The State has met all requirements applicable to the area under section 110 and part D, title I, of.the Act. 5. The EPA has fully approved a maintenance plan, including a contingency plan, for the area as meeting the requirements of section l75A of the Act [ see generally section 107(d) (3) (E) of the Act] “See section 189(c) (3) of the Act. 28 5ee sections 110(m) and 179(a) of the Act and 59 FR 39832, August 4, 1994. ------- 19 Each of these criteria is discussed in more detail in a memorandum from John Calcagni to the Regional Air Directors, dated September 4, 1992, addressing the guidelines for qualifying for redesignation to attainment. [ See “Procedures for Processing Requests to Redesignate Areas to Attainment” memorandum to Regional Air Directors from John Calcagni, Director of the Air Quality Management Division, September 4, 1992.] The second half of the memorandum gives particular attention to the maintenance plan requirement under section 175A since this constitutes a new requirement under the 1990 Amendments. The memorandum provides that special concerns for areas seeking redesignation will e addressed on a case-by-case basis. If there are any questions concerning this policy, please - contact Larry Wallace of the Integrated Policy and Strategies • Group at (919) 541-0906. cc: Tom Helms, AQSSD Joe Paisie, AQSSD Rich Osias, OGC ------- 0. Reasonable Further Progress ------- 0. Reasonable Further Progress 0.1. Rate-of-Progress Plan Guidance for Ozone Nonattainment Areas - - Oct. 15, 1992 memo from John Calcagni 0.2. Guidance on the Adjusted Base Year Emissions Inventory and the 1996 Target for the 15 Percent Rate-of-Progress Plans - - Oct. 1992 0.3. Credit Toward the 15 Percent Rate-of-Progress Reductions from Federal Measures -- May 6, 1993 memo from G.T. Helms 0.4. Rate-of-Progress Plan Guidance for Ozone Nonattainment Areas -- May 13, 1993 memo from D. Kent Berry and accompanying guidance 0.5. Rate-of-Progress Plan Guidance for Ozone Nonattainment Areas - - Enforceable Regulations and Compliance Programs - - June 14, 1993 memo from D. Kent Berry and accompanying guidance document 0.6. Correction Errata to the 15 Percent Rate-of-Progress Plan Guidance Series - - July 28, 1993 memo from G.T. Helms 0.7. Guidance on Issues Related to 15 Percent Rate-of-Progress Plans - - Aug. 23, 1993 memo from Michael H. Shapiro 0.8. Credit Toward the 15 Percent Requirements from Architectural and Industrial Maintenance Coatings - - Sept. 10, 1993 memo from John S. Seitz 0.9. Clarification of “Guidance for.Growth Factors, Projections and Control Strategies for the 15 Percent Rate of Progress Plans” -- Oct. 6, 1993 memo from G.T. Helms 0.10. Rate-of-Progress Plan Guidance on the 15 Percent Calculations - - Oct. 29, 1993 memo from D. Kent Berry 0.11. Credit for 15 Percent Rate-of-Progress Plans for Reductions from the Architectural and Industrial Maintenance (AIM) Coating Rule - - Dec. 9, 1993 memo from John S. Seitz ). , v / 2,1 8 /q 3 0.12. Clarification of Policy for Nitrogen Oxides (NOx) Substitution -- Aug. 5, 1994 memo from John S. Seitz 0.13. 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 - - Nov. 29, 1994 memo from John S. Seitz 0.14. Credit for the 15 Percent Rate-of-Progress Plans for Reductions from the Architectural and Industrial Maintenance (AIM) Coating Rule -- Mar. 22, 1995 memo from John S. Seitz 0.15. Fifteen Percent Rate-of-Progress Plans- -Additional Guidance -- May 5, 1995 memo from John S. Seitz ------- ** Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard - - May 10, 1995 memo from John S. Seitz [ See Redesignations section] O11L.. &4 + 4 ’c-tn 1 • g 4..it’( Ot4 —- /791/ P1 6 ‘i 7- IV.41 ?‘ J EM A J ‘ t r%’ ?c / A 1 ro ’/ %/ j p 4 ’ ------- fO UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON, D.C. 20460 t PqQlt. 15 CC I 1992 OFFICE OF AIR ANO RADIATION MEMORANDUM SUBJECT: Rate-of-Progress Plan Guidance for Ozone Nonattainment Areas -— J FROM. John Calcagni., Director .. Air Quality Management Division.( th-’i5) Office of Air Quality Planning an& andards Will jam Laxton, Director 21 . %t? Technical Support Division (MD—14) Office of Air Quality Planning and Standards L,. Phil Lorang, Director ‘ Emission Planning and Strategies Division, Office of Mobile Sources TO: Director, Air, Pesticides and Toxics Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X Attached is a document entitled Guidance on the Adjusted Base Year Emissions Inventory and the 1996 Taraet for the 15 Percent Mte of Progress Plans , which was developed to guide States as they begin to develop the State implementation plans (SIP’S) t9 eet the new rate-of-progress requirements of section l82(b)(1&J. The document specifically focuses on how a State determines the required 15 percent emissions reductions. The Clean Air Act Amendments of 1990 (CAAA) now require a specified rate of emissions reductions for all ozone areas classified moderate and above. Moderate and above areas must submit a SIP revision detailing how the area will achieve a reduction in volatile organic compound (VOC) emissions of at least 15 percent between November 15, 1990 and November 15, 1996 (hereafter called the rate-of-progress plan). The rate-of— progress requirement is calculated from the 1990 base year Pnnted on Recycled Paper ------- 2 emissionS inventory. The rate-of-progress plan revision is part of the full SIP (including an attainment demonstration based on modeling) for most moderate areas, and a separate submittal for serious and above areas (due November 15, 1993). The attached document provides an example of how a State determines the required 15 percent rate of progress. This document provides technical guidance to support the policy interpretations presented in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992). The example explains how to determine the 1990 rate-of-progress base year inventory for the rionattaininent area, how to adjust the 1990 base year emissions inventory to account for noncreditable reductions between 1990 and 1996 per section 182(b) (1) (B) of the CAAA, how to calculate the required 15 percent, and how to establish the 1996 target level of emissions. These steps represent the initial process in the development of an adequate control strategy to meet the rate of progress requirements. We suggest that you forward this document to your State and local agencies (an unbound original is enclosed). This document will also be placed on the Technology Transfer Network, the Management and Accountability Process System, and the State and Local Air Directors under the filename PROGRESS.WFP. We trust that this information will be of help to you as you guide your State through the SIP development process. If you have questions or comments, please contact Sheila Holman (919— 541-0861), Kimber Scavo (919-541-3354), or Mary Ann Warner—Seiph (919—541—1192) Attachment cc: John Seitz Lydia Wegman Dick Wilson Jane Armstrong Rich Ossias David Mobley Tom John 1vasi Marty- Martinez John Bosch Joe Tikvart Ned Meyer Howard Wright Ogden Gerald Sheila Holman Kimber Scavo Mary Ann Warner-Selph Air Branch Chief, Regions I-X William Becker, STAPPA/ALAPCO ------- riJIDi CE O . ‘ E’ ” BASE ii ::PNVENTO 19?6 TARGET’ — _jL RATE WPROGkI -- U .L r .. . - , -4 ------- Guidance on the Adjusted Base Year Emissions Inventory and the 1996 Target for the 15 Percent Rate-of-Progress Plans Ozone/Carbon Monoxide Programs Branch U.S. Environmental Protection Agency Office of Air’ Quality Planning and Standards Re$arch Triangle Park, NC 27711 ------- TABLE OF CONTENTS Paae ACKNOWLEDG NTS • • • • • • • • • • • • • LIST OF TABLES • . . . . . . . . . . . . . vi LIST OF FIGURES • • . . . • • • • . . . . . . . . vii AcRONYMSANDABBREVIATIONS ...... viii E XECLT1’IVE ST.Th0IARY . . . . . . . . . . . . . . . . . . . . . . 1 1.0 IN’ R0DUCTION 5 S S S • S • S S S S S S • • • . . . . 5 1.1 Purpose . . . . . . . . . . . . . . . . . . . . . . 6 1.2 Background . . . . . . . . . . . . . . . . . . . . 7 1.3 Organizationof Report . . . . . . . . . . . . . . 8 2.0 CALCULATIONOFTHE1996TARGET. .......• .••• 9 2.1 Calculation of the 1990 Adjusted Base Year Inventory . . . . . . . . . . . . . . . . . . . . . 9 Mobile Source Adjustments . . . . . . . . . . . . . 12 RACTRuleCorrections. . . . . . . . . •..... 14 I/MProgramCorrections . . . . . . . . . . . . . . 15 2.2 1996 Target Level of Emissions . . . . . . . . . . 15 2.3 Requirements of Section 182(b)(1)(A)(ii) . . . . . 17 2.4 Emissions Factor Adjustments . . . . . . . . . . . 17 3.0 RATE-OF-PROGRESS PLAN ELE €NTS . . . . . . . . . . . . . 19 3.1 BaseYear lnventory. . . . . . . . . . . . . . . . 20 Guidance Documents for Preparing Base Year Inventory . . . . . . . . . . . . . . . . . . 20 Documentation Requirements of Base Year Inventory 22 3.2 Additional Rate-of-Progress Plan Elements . . . . . 22 1990 Rate-of-Progress Base Year Inventory . . . . . 23 1990 Adjusted Base Year Inventory . . . . . . . . . 23 Required 15 Percent Reductions . . . . . . . . . . 24 TotalExpectedReductions. . . . . s...... 24 TargetLevelfor 1996....... . . . . .... 25 Economic Activity and Growth: Determinants and Indicators . . . . . . . . . . . . . . . . . . 25 ControlMeasures/Factors ............. 26 3.3 taininent Demonstration . . . . . . . . . . . . . 28 4.0 CREDI LITY OF EMISSIONS REDUCTIONS . . . . . . . . . 29 4. 1 IU ’ Progranis . . . . . . . . . . . . . . . . . . . 30 RA Fix—Ups . . . . . . . . . . . . . . . . . . . 30 R.ACT Catch—Ups . . . . . . . . . . . . . . . . . . 31 4.2 Inspection and Maintenance Programs . . . . . . . . 32 4.3 Preenactment Banked Emissions Reduction Credits . . 32 4.4 Maximum Achievable Control Technology (M CT) Standards . . . . . . . . . . . . . . . . . . . . . 34 GeneralRequirernents ............... 34 EarlyReductionsProgram . . ........... 34 4.5 Rule Effectiveness Improvements . . . . . . . 5 . 5 35 iii ------- 5.0 PREVIEW OF THE DEVELOPMENT OF EMISSIONS PROJECTIONS, CONTROL TRA, AND 1996 MILESTONE COMPLIANCE DEMONSTR.ATION • • • • • • 37 REFERENCES S S • S • S • • • • • • 39 APPENDIX A: DEFINITION OF TERMS . . . A-i APPENDIX B: CALCULATION OF EMISSIONS REDUCTIONS FROM RACT RTJLE CORRECTIONS • • • • • • • • • • . . . . . . B—i APPENDIX C: CALCULATION OF EMISSIONS REDUCTIONS FROM I/M PROGRAMCORRECTIONS .. c-i iv ------- A NOWLEDGE!4EW S This report was prepared by Andrew D Boliman and Randy Strait of E.H. Pechan and Associates, Inc. of Durham, North Carolina. The work was conducted under EPA Contract No. 68-DO- 0120, Work Assignment No. 2-43; with contributions from the following EPA Offices: Ozone/Carbon Monoxide Programs Branch and Emission Inventory Branch of the Office of Air Quality Planning and Standards, and the Emission Planning and Strategies Division of the Office of Mobile Sources. V ------- LIST OP TABLES Number Page 1. PROJECTION AND CONTROL FACTOR FORMATS . • • , • • , • • 27 A-i. MAJOR SOURCE THRESHOLDS AND MINIMUM EMISSIONS OFFSET RATIO REQUIREMENTS FOR OZONE NONA AINMENT AREA CLASSIFICATIONS • • • • • • • • • A—3 C-i. INSPECTION AND MAINTENANCE (I/N) PROGRAM INPUTS . . . . C -i vi ------- LIST OF FIGURES Number Page Figure 1. Flow chart for rate-of-progress calculations. . . 10 Figure 2. Flow chart for exam 1e rate-of-progress calculations. . . . . . . . . . . . . 16 Figure 3. Example of use of preenactment banked emissions credits . . . . . 33 vii ------- ACRONYMS AND ABBREVIATIONS ‘I Act Clean Air Act AIRS Facility Subsystem AIRS Aerometric Information Retrieval System AMS AIRS Area and Mobile Source Subsystem BEA Bureau of Economic Analysis 1990 Clean Air Act Amendments Co Carbon Monoxide CTG Control Technique Guideline E1 MA Empirical Kinetic Modeling Approach EPA U.S. Environmental Protection Agency FIPS Federal Information Processing Standards FMVCP Federal Motor Vehicle Control Program FR Federal Register gal gallon(s) I/M Inspection and Maintenance lb pound(s) MACT Maximum Achievable Control Technology NAAQS National Ambient Air Quality Standard(s) NO Nitrogen Oxides OCS Outer Continental Shelf psi pounds per square inch RACT Reasonably Available Control Technology RIP Reasonable Further Progress ROM Regional Oxidant Modeling RVP Reid Vapor Pressure SIP State Implementation Plan SSCD Stationary Source Compliance Division tpy tons per year UAM Urban Airshed Model •VMT vehicle miles traveled voc volatile Organic Compound(s) viii ------- EXECUTIVE SUMMARY Section 782(b) (1) of the Clean Air A t (Act) Amendments of 1990 (CAAA) requires all ozone nonattainment areas classified as moderate and above to submit a State implementation plan (SIP) revision by November 15, 1993, which describes, in part, how the areas will achieve an actual emissions reduction of at least 15 percent during the first 6 years after enactment of the CAAA (November 15, 1996). The portion of the SIP reyision that illustrates the plan for the achievement of this emissions reduction is subsequently defined in this document as the “rate- of-progress plan.” The focus of this guidance document is on the requirements due November 1992 relative to the rate-of-progress plan, including adjustments that must be made to the base year (1990) emissions inventories. This document clarifies guidance provided in an August 7, 1992 memorandum from Mr. J. David Mobley, Chief, Emissions Inventory Branch, to U.S. Environmental Protection Agency (EPA) Regional Chiefs, regarding “November 15, 1992, Deliverables for RFP and Modeling Emission Inventories.” Section 182(a) (1) of the CAAA requires all nonattainment •areas to submit within 2 years of enactment (November 15, 1992), a comprehensive, accurate, and current inventory of ozone season typical weekday emissions from all sources. State agencies are responsible for the development of this “base year inventory.” Draft base year inventories were scheduled to be submitted to EPA during the period of January 1 to May 1, 1992. Final base year inventories, which incorporate comments from EPA’S review of the draft inventory, and draft adjusted base year inventories, described in this guidance document, are due no later than November 15, 1992. This document assists States in determining the 1996 target •level of emissions under the rate-of-progress plan requirement for moderate and above ozone nonattairunent areas. States will tise this target emissions level in determining what strategies will be necessary to control emissions so that the nonattaininent area will comply with the 15 percent volatile organic compounds (VOC) emissions reduction requirement. This document uses an example 1996 target emissions calculation to. describe the procedures that States should follow to calculate the 1996 target level. It so describes EPA’S documentation requirements for the Novembi t992 submittals relative to the rate-of-progress plan. The ichedule for rate-of-progress plan deliverables is listed below: 1 ------- November 1992: • Final 1990 base year inventory.’ • 1990 rate-of-progress base year inventory (limited to nonattainntent area and excluding biogenic emissions) 2 • Initial 1990 adjusted base year inventory. 3 • Required 15 percent reductions. 3 • Total expected reductions by 1996. • Target level for 1996. • Growth factors for developing projected rate—of- progress and attainment modeling inventories. 3 • CAAA mandated control measures and their associated control efficiencies. 3 ‘States must allow for public review of the base year inventories if they are to be used in a regulatory exercise such as rate-of- progress plans, attainment demonstrations, or maintenance plans. While 1990 base year inventories must be submitted to EPA by November 15, 1992, EPA will allow the public review process to occur after this date (because of the length of time generally required for scheduling and completing the public review process). If public review is held after the November 15 submittal, then prior to November 15, 1993, and prior to application in any regulatory activities, the inventory must be revised to reflect responses to public review comments. 2 The rate-of-progress inventory is a subset of the final 1990 base year inventory and should be identified within the base year inventory documentation. This means that within the base year inventory submittal, emissions from anthropogenic sources (i.e., excluding biogenics) within the nonattainment area (excluding sources within the 25-mile buffer zone and sources in a model domain but outside of the nonattainment area) should be identified. This can be accomplished by summarizing emissions in the inventory for nonattaininent area anthropogenic sources and then summarizing emissions for all, other sources. Thus, the rate-of-progress inventory should be submitted as part of the 1990 base year inventory package due by November 15, 1992. 3 The EPA stated in an August 7, 1992 memorandum from Mr. J’. David Mobley, Ch i, Emission Inventory Branch, to EPA Regional Office Chiefs, ragaxding “November 15, 1992, Deliverables for RFP and Modeling iion Inventories,” that these items (initial 1990 adjusted b e year inventory through remaining items under November 1992) are required by November 15, 1992. If, however, a State will be submitting a full draft 15 percent rate-of-progress plan for public review in early 1993 (i.e., no later than March 1993), they may wait and submit the draft plan to EPA at the beg’nn4ng of the public review period rather than submitting these items in November 1992. Please note, however, that for arems involved in regional oxidant modeling (ROM) exercises, growth and control factors need to be submitted to EPA by November 15, 1992. 2 ------- May 1993: • Draft 1996 projected emissions inventory with Controls. November 1993: • Fully adopted rate-of-progress plan, including attainment demonstration for moderate areas not using the urban airshed model (UAN). Various reductions will result from implementation of the 1990 CAAA. Some of these reductions are creditable toward the 15 percent VOC emissions reduction requirements while others are not creditable. This, document incorporates a review of the creditability of emissions control programs mentioned in the CAAA. This discussion assists States in planning a control ‘strategy to meet the 1996 target emissions level. All real, permanent, and enforceable post-1990 VOC emissions reductions are creditable toward the 15 percent requirement except for reductions resulting from the following: 1. The Federal motor vehicle control program (FMVCP) tailpipe or evaporative standards promulgated prior to 1990. 2. Federal regulations specifying Reid’ vapor pressure (RVP) limits for nonattainxnent areas (55 FR 23666, June 11, 1990). 3. State regulations required under section 182(a) (2) (A) to correct deficiencies in existing reasonably available control technology (RACT) rules. 4. State regulations required under section 182(a) (2 (B) to establish an inspection and maintenance (I/M) program or correct deficiencies in existing 1/14 programs. Finally, this document provides a brief preview of the development of emissions projections and control strategies, along with a discussion of the 1996 milestone compliance demonstration. The EPA is not requiring that a complete draft control strategy be included in the rate-of-progress plan until May 1993. .b wever, CAAA mandated control measures and their associated Cntro1 efficiencies are required in November 1992; additiona1 ñtrol measures to meet the 15 percent emissions reduction irement are encouraged, but not required for the November 1992 submittal. Guidance for the May and November 1993 submittals will be released in the fall of 1992. The EPA may require States to make corrections to the final 1990 base year, 1990 rate-of-progress base year, initial 1990 adj usted base year ,nventories, as well as the 1996 target level of emissions. These corrections will only be required if emissions factors or methodologies change significantly, and these changes occur before such time that it is impossible for 3 ------- States to make adjustments to their 15 percent emissions reduction calculations and associated control strategies. For example, a revised MOBILE model (MOBILE5. ) is due for release this fall. Its use will not be required in the November 1992 submittal, but will be required in the November 1993 submittal. 4 ------- 1.0 INTRODUCTION Section 182(b) (1) of the CAAA requir’ s all ozone nonattainment areas classified as moderate and above to submit a SIP revision by November 15, 1993, which describes, in part, how the areas will achieve an actual emissions reduction of at least 15 percent during the first 6 years after enactment of the CAAA (November 15, 1996). Emissions and emissions reductions shall be calculated on a typical weekday basis for the “peak” 3-month ozone period (generally June through August). The 15 percent voc emissions reduction required by November 15 1996 is defined within this document as “rate of progress.” 4 Furthermore, the portion of the SIP revision that illustrates the plan for the achievement of the emissions reduction is subsequently defined in this document as the “rate-of-progress plan.” Additionally, States with intrastate moderate ozone nonattainment areas will generally be required to submit attainment demonstrations with their SIP revisions due by November 15, 1993 (such areas choosing to use the UAM to prepare their attainment demonstrations will be allowed to submit attainment demonstrations by November 15, 1994). States choosing to run UMI for their intrastate moderate areas must submit their 15 percent rate-of-progress plan and a committal SIP addressing the attainment demonstration. The committal SIP subject to a section 110(k) (4) approval would include, at a minimum, evidence that grid modeling is well under way and a commitment, with schedule, to complete the modeling and submit it as a SIP revision by November 1994. The completed attainment demonstration would include any additional controls needed for attainment. It is important to note that section 182(b) (1) also requires the SIP for moderate areas to provide for reductions in VOC and nitrogen oxide (N0 ) emissions “as necessary to attain the national primary ambient air quality standard for ozone” by 4 The EPA recognizes that the CAAA term, both the 15 percent VOC emissions reduction requirement of section 182(b) (1) and the section 182(c) (2) (B) requirement for 3 percent per year VOC emissions reductions averaged over each consecutive 3-year period from Nove . 15, 1996 until the attainment date, as reasonable further p 1 ess requirements. However, because the CAAA require SIP revi for the 15 percent reduction to be submitted in 1993 and S Prrevisions for the 3 percent per year reductions to be submitted in 1994, EPA believes that it would be clearer, within the context of both the 15 percent rate-of-progress plan and. the post-1996 rate-of-progress plan guidance documents that EPA is producing, to create distinct labels for these two se mingiy similar reductions. The 1994 SIP revisions describing the requirement for 3 percent VOC emissions reductions averaged over each consecutive 3-year period from November 15, 1996 until the attainment date, constitute the post-1996 rate-of-progress plan. 5 ------- November 15, 1996. This requirement can be met through the use of EPA-approved modeling techniques and the adoption of any additional control measures beyond those ‘heeded to meet the 15 percent emissions reduction requirements. Section 182(c) (2) requires all ozone nonattainment areas classified as serious and above to submit a SIP revision by November 15, 1994 which describes, in part, how each area will achieve additional VOC emissions reductions of 3 percent per year averaged over each consecutive 3-year period from November 15, 1996 until the area’s attainment date. It is important to note that section 182(c) (2) (C) allows for actual NO emissions reductions (exceeding growth) that occur after the base year of 1990 to be used to meet post-1996 emissions reduction requirements for ozone nonattaininent areas classified as serious and above, provided that such N0 reductions meet the criteria outlined in forthcoming substitution guidance. The portion of the SIP revision (due •in 1994) that illustrates the plan for the achievement of these post-1996 reductions in VOC or NO is subsequently defined in this document as the “post-1996 rate-of- progress plan.” This plan must also contain an attainment demonstration based on photochemical grid modeling. The EPA will distribute a separate guidance document on the development of the post-1996 rate-of-progress plan in early 1993. Demonstrating achievement of the 15 percent VOC emissions reductions by November 15, 1996, and then subsequently demonstrating achievement of the 3 percent per year VOC emissions reductions averaged over each consecutive 3-year period from November 15, 1996 until the attainment date, are termed milestone demonstrations. Achievement of the milestones must be demonstrated within 90 days of the milestone date (i.e., the 15 percent VOC emissions reductions must be demonstrated by February 13, 1997). Rules regarding the development of the milestone demonstrations will be promulgated i.n the summer of 1993 and will address the timing problem of developing a full emissions inventory to meet the milestone demonstration requirement. 1 .1 Purpose The purpose of this document is to provide guidance on the calculation and presentation of the adjusted base year inventory and the 1996 target level of emissions. The 1996 target emissions ]?ével facilitates planning for the 15 percent vOC emissions reduction requirement. This guidance document alerts the reader to special circumstances regarding emissions inventories and emissions estimates that should be considered during the development of the rate-of-progress plan, including the procedures to follow in adjusting the 1990 base year inventory to calculate the 1996 target level of emissions. It •also provides information on the creditability of emissions reductions for various control programs. This document assists States in preparing the required information in the proper 6 ------- States in preparing the required information in the proper format. Finally, this guidance presents an example 1996 target emissions calculation. It is important to note that the scope of this document comprises the preparation of the November 1992 rate—of—progress plan deliverables. Therefore, it does not discuss the May and November 1993 submittals that involve the calculation of the projected 1996 inventory and development of the control strategy. A separate guidance document entitled, “Growth’ Factors, Projections, and Control Strategies,” will discuss these topics as they relate to the 1993 submittals. The EPA will publish the requirements for the 1996 milestone demonstration in a rulemaking expected in the summer of 1993. This document addresses many programs and procedures that are more fully addressed in other guidance documents. This guidance does not supersede these other guidance documents; rather, it intends to pull together the relative material pertaining to the development of the rate-of-progress plan. 1.2 Background Facilities, States, and the EPA currently estimate emissions for various purposes. Under the CAAA, facilities have new requirements in terms of permits, annual emissions statements, and compliance certifications. State agencies are currently responsible for the production of a base year emissions inventory, periodic inventories, and annual aerometric information retrieval system (AIRS) facility subsystem (APS) inventories. The EPA develops and utilizes emissions estimates and emissions inventories in virtually all of their air programs. The focal point for this guidance document is adjusting the 1990 base year inventory for the rate-of-progress SIP revision. The 1990 base year inventory emissions are reported on an annual and seasonal basis. For determination of the 15 percent -VOC emissions reduction, emissions are based on typical ozone season weekday emissions. For the base year inventory, these emissions are measured for a typical weekday during the 1990 peak ozone season. The peak ozone season is the contiguous 3-month period fpr which the highest ozone exceedance days have occurred in the pr.Yioua 3 to 4 years. The EPA’s focus on typical ozone season wU dIiy VOC emissions (an interpretation of the definition in sectior wjØ2(b) (1) (8) of baseline actual emissions during the “calendar 9Ur” of enactment) is consistent with prior EPA guidance. This stems from the fact that the ozone national ambient air quality standard (NAAQS) is an hourly standard that is generally violated during ozone season weekdays when conditions are conducive for ozone formation. These ozone seasons are typically the summer months. Wfth the 15 percent VOC emissions reduction, moderate nonattainment areas are generally expected to be able to attain the ozone NAAQS within the applicable timeframe. Therefore, the 7 ------- base program that all areas classified as moderate and above nonattainment must meet is the 15 percent rate—of—progress reduction. In cases where modeling shows VOC emissions reductions greater than 15 percent and/or NO reductions are necessary to attain the standard, additional emissions reductions will be required on a schedule that is sufficient to meet the attainment deadline. Section 182(c) (2) (C) allows for actual NO emissions reductions (exceeding growth) that occur after the base year of 1990 to be used to meet post-1996 emissions reduction requirements for ozone nonattainment areas classified as serious and above. Therefore, it is recommended that State agencies track the actual NO emissions reductions occurring between 1990 and 1996. More specific guidance regarding NO substitutions is currently under development within the EPA. 1.3 Organization of Report The organization of this report is as follows. Section 2 of this document provides a sample calculation of the 1996 target level of emissions. SeCtion. 3 of this document presents the rate-of-progress plan elements- This section highlights information on documenting the adjustments to the 1990 base year inventory for calculation of the 1996 target level of emissions. Section 4 of this document discusses the creditability of emissions reductions from various programs to the 15 percent requirement. The final section of this document provides a preview of the development of emissions projections, the control strategy, and the milestone demonstration that is due in 1997. Appendix A of this document provides a list of definitions for EPA terms used throughout this document. Appendix B describes the calculation of emissions reductions from RACT rule corrections, and Appendix C outlines this procedure for t/M program corrections. 8 ------- 2.0 CALCULATION OF THE 1996 TARGET To determine their control strategies for achieving the required VOC emissions reductions, States will need to calculate the 1996 target level of emissions--the maximum amount of emissions allowed in 1996 given the rate-of-progress requirement. Figure 1 provides an overview of how this target level is derived. Sections 2.1 and 2.2 of this document detail the calculation of this target using a hypothetical example. 2.1 Calculation of the 1990 Adjusted Base Year Inventory The CAAA specify the emissions “baseline” from which the 15 percent reduction is calculated. This baseline value is termed the 1990 adjusted base year inventory. Section 182(b) (1) (B) defines baseline emissions (for purposes of calculating the 15 percent VOC emissions reduction) as “the total amount of actual VOC or NO emissions from all anthropogenic sources in the area during the calendar year of enactment.” Section 182(b)(1)(D) excludes from the baseline the emissions that would be eliminated by FMVCP regulations promulgated by January 1, 1990, and RVP regulations (55 FR 23666, June 11, 1990), which require maximum RVP limits in nonattainment areas during the peak ozone season. The 1990 base year inventory is first adjusted by removing all biogenic emissions as well as emissions from sources located outside of the designated nonattainment boundary (e.g., within the modeling domain). This inventory, which contains only actual anthropogenic emissions occurring within the designated nonattainxnent boundaries during the base year, is termed the rate-of-progress base year inventory. The adjusted base year inventory is derived from the rate-of-progress base year inventory by removing the expected FMVCP and RVP reductions from the rate-of-progress base year inventory. Preenactment banked emissions credits should not be included in any of these inventories because they do not represent actual emissions in 1990. The following illustrates the general procedure for determining the 1990 adjusted base year inventory. Step 1: Develop the 1990 Base Year Inventory (includes all emissions within the UAM modeling domain) t al 1990 Base Year VOC Emissions Inventory (pobulds/day (lb/day)], Point Sources 1 ,000 Area Sources 2,500 Mobile Sources 3,500 Biogen.tc Sources + 5,000 Total 12,000 9 ------- A SUBTRACT BIOGENICS. - 4ISSIONS OUTSIDE NONATTAINI4ENT AREA ADp GROWTH 1990 RATE-OF- PROGRESS BASE YEAR INVENTORY SUBTRACT • FMVCP RVP REDUCTIONS. REDUCTION NEEDS BY 1996 TO ACHIEVE 15 PERCENT NET OF GROWTH 1 990 ADJUSTED BASE YEAR INVENTORY L IDultiply by 0.15 , B ADD REDUCTIONS FRON: - FMVCP/RVP RACT RULE CORRECTIONS 1/14 CORRECTIONS DO&5 lJO’P INCLUDE PRE W C! ??P MJKED YISSIOAWS CREDITS FINAL BASE YEAR (1?90) EMI SS IONS REDUCTION REQUIRED BY 1996 - I •C 1996 ESTIMATED EMISSIONS. A -B, I . — “V TOTAL EXPECTED REDUCTIONS BY 1996 FOR 1996 I . Figure 1 Flow chart for rate-of prog e88 ca1culation ------- As shown, the first step records the total 1990 base year inventory emissions from the four emissions source types: point, area, mobile, and biogenic. The EPA requhed that the 1990 base year inventory be submitted by the States in draft form by May .1992, and in final form by November 15, 1992. However, EPA is allowing additional time for States to complete the public hearing process. In the example presented above, the modeling domain is larger than the nonattainment area boundaries so the emissions for the modeling domain are presented. Here, the total point-source inventory is 1,000 lb/day. Area sources account for 2,500 lb/day. The 1990 base year mobile source inventory is 3,500 lb/day. In documenting the base year inventory, States must also specify which sources and emissions are located within the nonattaininent area and which are not. This is an important requirement for documenting the inventory, as ozone inventories will include either point sources outside of the nonattainment area (in the 25-mile buffer zone) or all sources in the. UAM modeling domain (if UAM modeling is to be performed). Step 2: Develop 1990 Rate-of-Progress Base Year Inventory for Nonat tainment Area 1990 Rate-of-Progress Base Year Inventory (lb/day) Point Sources (-200 from outside nonattaininent area) 800 Area Sources (-500 from outside nonattaininent area) 2,000 Mobile Sources (-500 from outside nonattainment area) + 3,000 Total 5,800 The second step develops the 1990 rate-of-progress base year inventory for the nonattainment area. This inventory comprises the anthropogenic stationary (point and area) and mobile sources in the nonattainment area; all biogenic emissions are removed from the base year inventory. In the example presented above, 200 lb/day, 500 lb/day, and 500 lb/day were contributed from VOC point, area, and mobile sources, respectively, that are located in the modeling domain but outside of the nonattainment area boundary. In this example, there were no outer continental shelf (OCS) sources (any OCS sources that were not located within the designated nonattainment area would also be removed from the base year inventory). Step 3: slop Adjusted Base Year Inventory 199O Adjusted Base Year Inventory (lb/day) Point Sources 800 Area Sources 2,000 Mobile Sources (-FMVCP and RVP -- 500) + 2,500 Total 5,300 The third step consists of developing the 1990 adjusted base year inventory from which the 15 percent reduction is calculated. 11 ------- First, the mobile source portion of the 1990 rate-of-progress base year inventory calculated in Step 2 must be adjusted as required by section 182(b) (1) (B) and (D) of the CAAA. This adjustment excludes emissions reductions that would occur by 1996 as a result of the FMVCP promulgated prior to the CAAA. In other words, the adjusted base year inventory excludes the emissions reductions that would occur as a result of fleet turnover between 1990 and 1996 even without the CAAA. The 1990 adjusted base year inventory must also exclude emissions reductions that would result in 1996 from RVP regulations promulgated by November 15, 1990, or required under section 211(h) of the Act. The pertinent regulations (55 FR 23666, June 11, 1990) specify maximum RVP’ s of 9.0 or 7.8 pounds per square inch (psi) for each State during the sunuuer months, beginning in 1992. In other words, the 1990 adjusted base year inventory must also exclude the emissions reductions that would occur as a result of the difference between the actual RVP in place in 1990 and the required 9.0 or 7.8 psi RVP in 1996. Deleting these mobile source emissions reductions from the adjusted inventory decreases the adjusted inventory and thus, also the 15 percent emissions reductions required. However, these mobile source emissions reductions are fully included in the total emissions reductions and thus, serve to reduce the .tota]. emissions allowed (as determined by calculating the target level of emissions). The net effect of these adjustments is that States are not able to take credit for emissions reductions that would result from fleet turnover of current standard cars and trucks, or from already existing Federal fuel regulations. However, the SIP can take full credit for the benefits of any new vehicle emissions standards, as well as any other new Federal or State motor vehicle or fuel program that will be implemented in the nonattaininent area, including Tier 1 exhaust standards, new evaporative emissions standards, reformulated gasoline, enhanced I/M, California low emissions vehicle program, transportation control measures, etc. Mobile Source Adiustments The mobile source portion of the adjusted base year inventory ia calculated using the MOBILE emissions factor model. States maijjIe MOBILE4.1 to come up with initial estimates of the adj usted i : year inventory. However, as soon as MOBILE5 becomes a àffab1e, States should switch to MOBILE5. MOBILE4.1 or MOBILE5 must be run in calendar year 1990, and again for calendar year 1996 (the 1996 run must not include any new CAAA measures). Since MOBILE4.1 does not include new CAAA measures, no change in modeling assuinpt..ons other than RVP is needed for the 1996 run. W RTT.RS will have a flag that will run the model using the FMVCP that was in place in 1990 for any calendar year. This flag will be dociented in the MOBILES User’s Guide. 12 ------- The following description uses MOBILE4.1 for reference. The method for calculating the expected reductions front the FMVCP arid RVP is the sazne using MOBILE5 except that”the flag described above must be set to achieve the projected emissions in 1996 in the absence of any new CAAA measures. Users must still set the appropriate RVP as described below. Actual 1990 emissions = (1990 vehicle miles traveled (VI4T)](MOBILE4.1 emissions factors from A); and Adjusted 1990 emissions = (1990 VMT) (MOBILE4.1 emissions factors from B). (A) MOBILE4.1 run from the 1990 base year inventory. Emissions factors from this run will be used with actual 1990 VMT to calculate actual 1990 emissions; and (B) MOBILE4.1 run as in the 1990 base year inventory run except that: 1) 1996 will be used as the evaluation year (this will change the vehicle mix to account for fleet turnover); and 2) the RVP is set to 9.0 or 7.8 as appropriate for the area. Emissions factors from this run and 1990 VMT will be used to calculate the adjusted 1990 emissions. Expected Reductions from FMVCP and RVP (1990-1996) = Actual 1990 emissions - Adjusted 1990 emissions This is the amount that is subtracted from the mobile source portion in the “rate-of-progress base year inventory” to get the mobile source portion of the adjusted base year inventory (step 3). For Step 5, this amount will be added to the required 15 percent reductions and other required reductions to calculate the total reductions from the 1990 baseline that must occur to comply with CAAA requirements. In the hypothetical example presented in step 3, the FMVCP and RVP regulations represent a decrease in emissions of 500 lb/day. This reduction reflects what the 1990 emissions would be if the same fleet that is projected to be operating in 1996 were operating in 1990. In addition, the effects of RVP regulations, which will result in lower evaporative losses, are factored o t even though the regulations were not necessarily in force in 149O . The T Oiotor vehicle baseline emissions, after factoring out the reductions from the effects of the FMVCP and RVP program, are then added to the 1990 inventory of nonmotor vehicle anthropogenic voc emissions to calculate the 1990 adjusted base year inventory. This composite emissions inventory, an aggregated total, is the inventory used to calculate the required 15 percent emissions reductions. In the example presented above, emissions for the 1990 adjusted base year inventory total 5,300 lb/day. 13 ------- Step 4: Calculate required (15 percent) creditable reductions 15 percent =5,300 x 0.15 l 95 lb/day For step 4, the adjusted base year inventory is multiplied by 0.15 to calculate the amount of the required 15 percent emissions reduction. Step 5: Calculate total expected reductions by 1996 Total Expected Reductions by 1996 (lb/day) Required 15 percent 795 Expected Reductions from 500 FMVCP and RVP (1990-1996) Corrections to RACT Rules 305 Corrections to I/M Programs + 200 Total 1,800 In the fifth step, the total required reductions from the 1990 rate-of-progress base year inventory are calculated. The total reductions comprise the reductions necessary to meet the 15 percent requirement and the expected reductions from the noncreditable programs (RVP, pre-CAAA FMVCP, RACE rule corrections, and I/M program corrections). Corrections to RACI’ rules and I/M programs are discussed below. In the above example, the emissions reductions expected to result from the corrections to RACT rules are 305 lb/day, and the emissions reductions expected to result from corrections to the I/M program are 200 lb/day. The total expected reductions by 1996 from the nonattairunent area (i.e., prior to growth) are 1,800 lb/day (step 5). RACT Rule Corrections Section 4.1 of this document discusses cases ihere RACT rule corrections do not directly result in quantifiable emissions reductions. Any incidental reductions that occur in these instances may be handled as part of a rule effectiveness improvement. Corrections to RACT rules that may result in additional, enforceable, and quantifiable emissions reductions include situations where either: • rule was missing (i.e., a State committed to elop a rule as part of its 1977 SIP, or post— 1982 SIP, but never carried through on the commitment prior to the CAAA). • The limit was wrong. • A capture system is now required. Pednrtions from these types of RACT rule corrections are not creditable toward the 15 percent VOC emissions reduction 14 ------- requirement. However, the amount of emissions reductions from these corrections should be calculated, as they are part of the total reductions from the 1990 rate-of-pr gress base year inventory that are required by the CAAA. Appendix B describes the methods for estimating the amount of these noncreditable emissions reductions. I/M Proaram Corrections Corrections to I/M programs are necessary when either: • (1) the area’s I/M program does not meet the reductions achieved by EPA’s minimum requirements, or (2) an area’s program does not meet the standards o its current SIP. The calculation of the emissions reductions associated with I/M program corrections requires two MOBILE4.1 runs (or MOBILE5 when it becomes available). Appendix C presents the methods for calculating the emissions reductions from I/M program corrections. 2.2 1996 Target Level of Emissions The final step is to calculate the 1996 target level of emissions for planning purposes. Step 6: Set target level for 1996 To calculate the 1996 target emissions level, the total reductions from Step 5 are subtracted from the 1990 rate-of- progress base year inventory for the nonattalnment area. The 1996 target level of emissions is 4,000 lb/day as shown below. Target Level = Step 2 - Step 5 = 1990 Rate-of-Progress Base Year Inventory For Nonattainment Area - Total Reductions = 5,800 lb/day — 1,800 lb/day = 4,000 lb/day Figure 2 provides an overview of the steps followed in calculating the example 1996 target level of emissions. It is important to note that although moderate and higher nonattainment area classifications are required to provide a rate-of-pr g ess plan describing how a 15 percent VOC emissions reduction - be achieved between 1990 and 1996 moderate areas are i ot r ed to show that they have net the 15 percent emissions- tion requirement. Instead, they are required to show that t’h y have attained the NAAQS as of November 15, 1996. Moderate areas must, therefore, plan for and implement a control. strategy that will result in attainment. If, for ezample. modeling for the attainment demonstration shows that an 18 perc t VOC emissions reduction will be necessary for a particnl r moderate area to attain by 1996, then the State should plan for and inckude control measures in their SIP submittal to 15 ------- FINAL BASE YEAR (1990) INVENPORY* 12, LB/ SUBTRACT ADD GROWTH FMVCP RVP REDUCTIONS - 1 multiply by O.1S EMISSIONS REDUCT ION REQUIRED BY 1996 0.1 5(5, 3O0) 795 LB/DAY TOTAL EXPECTED REDUCTIONS BY 1996 1,800 LB/DAY 1 990 ADJUSTED BASE YEAR INVENTORY 5,300 LB/DAY TARGET LEVEL FOR 1996 5,800—1 ,800= 4.000 LB/DAY ADD A-B 1 Jr C 1996 ESTIMATED _______ D I EMISSIONS ___ I (ANTHROPOGENIC ) C - D IREDUCTION NEEDS BY 11996 TO ACHIEVE 15 I PERCENT NET OF GROWTH L r REDUCTIONS FROM: FMVCP/RVP (500 LB/DAY) RACT RULE CORRECTIONS (305 LB/DAY) I/H CORRECTIONS (200 LB/DAY) * DOES Z’ T IN UD PREXMW1WEMT 3M ED 4ISSIOlJS Ci1EDITS A 1990 RATE-OF- PROGRESS BASE YEAR INVENTORY V BIOGENICS. EMISSIONS OUTSIDE NONA?I AINMENT AREA SUBTRACT Figure 2. Flow- chart for example rate—of—progress calculations. ------- reach this 18 percent reduction. These States need to track the post-implementation emissions using the modeled attainment percentage rather than the 15 percent rats-of-progress requirement. 2.3 Requirements of Section 182(b) (1)(A) (ii) Nonattainmeflt areas can achieve less than the 15 percent required reductions under the following restrictive circumstances. The State must demonstrate that the area has a new source review program equivalent to the requirements in extreme areas (section 182(e)), except that “major source” must include any source that emits, or has the potential to emit, 5 tons per year (tpy) of VOC or NOR. Additionally, all major sources of VOC and NO (down to 5 tpy) in the area must be required to have RACT-level controls. In light of technological achievability, the State’s plan must also include all mobile and stationary source control measures that can be feasibly implemented in the area. In addition, the State must demonstrate that the area’s plan includes the measures that are achieved by sources in the same source category in nonattainnient areas of the next higher classification. More detailed guidance on this showing will be provided in forthcoming EPA guidance expected in the fall of 1992 regarding the development of control strategies for the rate-of-progress demonstration plan. 2.4 Emissions Factor Adjustments Emissions factors, as well as inventory calculation methodologies, are continually being improved. If emissions factors or methodologies change significantly, the EPA may advise the States to correct the base year emissions inventory to reflect such changes. The release of a revised MOBILE model (MOBILE5.O) is pending. The use of MOBILE5.O is not required for the SIP submittal due in November 1992. Any emissions values calculated using MOBILE4.1 will have to be recalculated before submittal of the final rate-of-progress plan in November 1993. If other significant changes occur in emissions factors or methodologies before which time it is impossible for States to make adjustments to their 15 percent calculations and associated control strategies, then EPA may require States to make corrections to the base year emissions inventory, as well as to the adjust base year inventory and the 1996 target level of emissions, Si ch corrections would be made prior to the submittal of any sub nt rate-of-progress demonstration. 17 ------- 3.0 RATE-OF-PROGRESS PLAN ELEMENTS Required submittals for the rate-of-progress plan will be staggered to allow additional time for the control strategy development process. The dates and specific elements that are required for these submittals are listed below: November 1992: • Final 1990 base year inventory. 5 • 1990 rate-of-progress base year inventory (limited to nonattairunent area and excluding biogenic emissions) 6 • Initial 1990 adjusted base year inventory. 7 • Required 15 percent reductions. 7 5 States must allow for public review of the base year inventories if they are to be used in a regulatory exercise such as rate-of- progress plans, attainment demonstrations, or maintenance plans. While 1990 base year inventories must be submitted to EPA by November 15, 1992, EPA will allow the public review process to occur after this date (because of the length of time generally required for scheduling and completing the public review process). If public review is held after the November 15 submittal, then prior to November 15, 1993, and prior to application in any regulatory activities, the inventory must be revised to reflect responses to public review comments. 6 The rate-of-progress inventory is a subset of the final 1990 base year inventory and should be identified within the base year inventory documentation. This means that within the base year inventory submittal, emissions from anthropogenic sources (i.e., excluding biogenics) within the nonattaininent area (excluding sources within the 25-mile buffer zone and sources in a model domain but outside of the nonattainment area) should be i.dentified. This can be accomplished by summarizing emissions in the inventory for nonattainntent area anthropogenic sources and .then summarizing emissions for all other sources. Thus, the rate-of-progress inventory should be submitted as part of the 1990 base year inventory package due by November 15, 1992. ‘The EPA stated in an August 7, 1992 memorandum from Mr. J. David Mobley, ci è f, Emission Inventory Branch, to EPA Regional Office Chiefs, re rding “November 15, 1992, Deliverables for NJ? and Modeling Emission Inventories,” that these items (initial 1990 adjusted base year inventory through remaining items under November 1992) are required by November 15, 1992. If, however, a State will be submitting a full draft 15 percent rate-of-progress plan for public review in early 1993 (i.e., no later than March 1993). they may wait and submit the draft plan to EPA at the b inning of the public review period rather than submitting these items in November 1992. Please note, however, that for areas involved in ROM exercises, growth and control factors need to be submitted to EPA by November 15, 1992. 19 ------- • Total expected reductions by 1996.’ • Target level for i996. ‘ • Growth factors for developing projected rate-of- progress and attainment modeling inventories.’ • CAM mandated control measures and their associated control efficiencies.’ May 1993: • Draft 1996 projected emissions inventory with controls. November 1993: • Fully adopted rate-of-progress plan, including attainment demonstration for moderate areas not using the UAM. Each of the items required for the November 1992 submittal are described in this section. Subsequent rate-of-progress plan submittals are discussed briefly in section 5.0 of this document. Further details on these elements will be provided in the document entitled, “Growth Factors, Projections, and Control Strategies,” to be issued in the fall of 1992. 3.1 Base Year Inventory Section 182(a) (1) requires all nonattainment areas to submit a comprehensive, accurate, and current inventory of actual emissions from all sources by November 15, 1992. This inventory is for calendar year 1990 and is identified as the base year inventory. It includes anthropogenic sources of N0 and carbon monoxide (CO) emissions, as well as anthropogenic and biogenic sources of VOC. The base year inventory includes actual VOC, NOR, and CO emissions for the area on both an annual basis (except for on-road mobile sources and biogenics) and a typical weekday basis during the peak ozone season, which is generally the summer months. All stationary and mobile sources within the nonattainment area, and stationary sources with emissions of 100 tpy or greater of VOC, N0 , and Co emissions within a 25-mile wide buffer of the designated nonattainment area, must be included inthe compilation. Including sources within a 25-mile buffer is- eesary to ensure that all sources capable of affecting j quality within the nonattainment area are adequatel ted for in modeling demonstrations and strategy developmeitt ‘For nonattairiment areas that will perform photochemical grid modeling (e.g., serious and above areas and multi-State moderate areas), emissions for the entire modeling domain are required in the base year inventory. Guiñ ni e Documents for Pre arina Base Year Inventory Guidance documents are available from EPA that specifically pertain to the calculation and presentation of the 1990 base year inventory for the purpose of ozone nonattairunent area SIP 20 ------- development. Guidance related to the requirements for the 1990 base year inventory is available in the f llowing document: • Emission Inventory Reauirements for Ozone State Implementation Plans . (See reference 1.) Guidance specific to inventorying stationary sources is available in: • Procedures for the Preparation of Emission Inventories for Carbon Monoxide and Precursors of Ozone. Volume I: General Guidance for Stationary Sources . (See reference 2.) For mobile sources the primary guidance documents include: • Procedures for Emission Inventory Preparation. Volume IV: Mobile Sources . (See reference 3.) • User’s Guide to MOBILE4.1 . (See reference 4.) • VMT Forecasting and Tracking Guidance . (See reference 5.) Guidance specific to inventorying biogenic sources is available in: • Personal Computer Version of the Biogenic Emissions Inventory System (PC-BEIS) And User’s Guide . (See reference 6.) Other guidance documents related to the 1990 inventory are: • Procedures for the Preparation of Emission Inventories for Carbon Monoxide and Precursors of Ozone. Volume II: Emission Inventory Reguirements for Photochemical Air Quality Simulation Models . (See reference 7.) • Guidance for the Preparation of Oualitv Assurance Plans for O 3 /CO SIP Emission Inventories . (See reference 8.) • ialitv Review Guidelines for 1990 Base Year Emission ventories . (See reference 9.) • xam le Documentation Reoort for 1990 Base Year Ozone and Carbon Monoxide State Implementation Plan Emission Inventorries. (See reference 10.) • Guidelines for Estimatina and Ao lvina Rule Effectiveness for Ozone/CO State Implementation Plans . (See reference 11.) 21 ------- Documentation Requirements of Base Year Inventory States must provide their base year inventory information in both written and computerized formats. Adequate documentation on the source Of the emissions estimates is required in the submission of the final base year inventory. This documentation will facilitate the milestone compliance determination and any necessary emissions estimate recalculations during the implementation of the SIP. Requirements and guidance for documentation of the base year inventory are presented in nission Inventory Reauirements for Ozone State Implementation Plans (EPA-450/4-91-01O) and Example Documentation Report for 1990 Base Year Ozone and Carbon Monoxide State Implementation Plan Emission Inventories (EPA 450/4—92-007). The written presentation of emissions inventory information has to be extensive enough for EPA to reproduce the emissions inventory elements that are submitted. The EPA’S primary concern is that all inventory elements address the crucial elements inherent in a good inventory and provide sununary data and documentation that allow the quality of the inventory effort to be effectively judged. Therefore, the emphasis is on the types of data that need to be reported and not the specific format in which they are reported. Inventories not meeting the minimum data reporting and documentation standards established in these documents will be deemed unacceptable and returned to the States for modification before any further technical quality review will be performed. Adequate documentation includes all of the information that is necessary to understand how an emissions estimate was made. This level of documentation will allow EPA and the States to determine what the effects would be if some of the data w—- revised. For example, to understand the effect of changes n emissions factors, the State needs to document where the : tors were employed and the supporting data (such as activity data) that were used in the emissions estimation process. Some activity data may be revised during the period between submission of the rate-of-progress plan and the milestone demonstration (this could include preliminary population data obtained bqfore the 1990 census data were finalized or VMT estimates t were later revised using a more sophisticated model). efore, States must document the source of the data as well at’th. date or version of the data (and whether the data are draft or final estimates). 3.2 Additional Rate-of—Progress Plan Elements Rate-of-progress plan requirements under the CAAA rei-.lt in the need to develop two inventories in addition to the bas- year inventory: the rate-of-progress base year inventory and t:le adjusted base year inventory. The rate-of-progress base year inventory is an inventory of actual anthropogenic 1990 emissions for the nonattainment area that is used to track the progress of 22 ------- the 15 percent reduction plan. The 1990 adjusted base year inventory which is also developed for th? rate-of-progress plan, does not contain the expected emissions reductions from the vc and RVP program from the 1990 rate-of-progress base year inventory. The required 15 percent reductions are calculated from this adjusted base year inventory and not the rate-of- progress base year inventory, thus lowering the States’ emissions reduction burden. 1990 Rate-of-Progress Base Year Inventory The 1990 rate-of-progress base year inventory accounts for the total anthropogenic VOC, CO, and NO emissions in the nonattainnient area. The rate-of-progress base year inventory differs from the 1990 base year inventory in that the rate-of- progress base year inventory does not include biogenic source emissions nor emissions from sources located outside of the nonattainnient area, while the base year inventory includes these emissions (e.g., for point, area, and mobile sources outside of the nonattainnient area but within the UAM domain). States should document which sources and emissions are located within the nonattainnient area as well as which are located outside of the nonattainment area. Also, the total biogenic emissions, which are also removed from the base year inventory, should be listed. Emissions for anthropogenic sources within the nonattainment area can be distinguished in the AIRS data set by using the appropriate retrieval criteria. The rate-of-progress base year inventory facilitates the calculation of the adjusted base year inventory. 1990 A&lusted Base Year Inventory • The 1990 adjusted base year inventory is the starting point for calculating the required 15 percent reductions, and also the first step in calculating the total expected reductions by 1996 and the 1996 target level of emissions. The 1990 adjusted base year. inventory does not contain the expected FMV P (in effectas of November 15, 1990) and RVP program emissions reductions from the 1990 rate-of-progress base year inventory. This adjustment lessens the States’ emissions reduction burden, because the baseline emissions total from which the required 1 5 percent reduction s calculated has been lowered. Doc” $tation of the adjusted base year inventory will take two disti t. forms. The written documentation must include the expected emissions reductions from the PMVCP and RVP program, as well as both the actual 1990 motor vehicle emissions using 1990 VMT and MOBILE emissions factors, and the adjusted emissions using 1990 VMT and the MOBILE emissions factors in calendar year 1996 with the appropriate RVP for the nonattaininent area as mandated by EPA. (See reference 12.) States must provide EPA with information on how the MOBILE model was run in calculating the expected emissions reductions from the FMVCP and RVP program. Section 2.1 of this document provides a description of how the reductions from these programs are calculated. - 23 ------- For purposes of the AIRS Area and Mobile Source Subsystem CAMS) adjusted base year submittal, State s must provide the RVP inputs as required under the CAAA for the nonattainznent area, and run the MOBILE model with a 1996 vehicle mix (the 1990 base year inventory submittal will contain the actual 1990 motor vehicle •emissions). Because the calculation of the FMVCP and RVP program emissions reductions requires two separate runs of the MOBILE model (see- section 2.1 of this document for details), States, will not submit the emissions reductions from these programs directly into AIRS. Other requirements for documentation and submittal of the adjusted base year inventory to AIRS are the same as those for the 1990 base year inventory. States should realize that there will be no submittal of an “adjusted” point-source inventory for APS because the point-source emissions are not altered in the calculation of the adjusted inventory from the rate-of-progress base year inventory. •The point-source emissions for both the rate-of-progress and adjusted base year inventories can, therefore, be directly retrieved from the 1990 base year inventory. Stationary area-source emissions are not altered either. All adjustments apply to mobile source emissions. Base year and adjusted base year point and stationary emissions are different because of the different geographic coverage. The AIRS has a flag to indicate that the emissions are within the designated nonattainment area boundaries and, therefore, can separate the point and stationary area-source portions to develop portions of these two different inventories. Reauired 15 Percent Reductions The required 15 percent reductions represent the amount of creditable emissions reductions that must be demonstrated in the rate-of-progress plan. The amount of these required emissions reductions is calculated by multiplying the adjusted base year inventory by 0.15. The results of the 15 percent emissions reduction calculation can be documented on a single sheet of paper as the “required 15 percent reductions.” Total Expected Reductions In addition to the creditable 15 percent reductions, there are other.öiseions reductions that are required under the CAM. The “totai xpected reductions” are the sum of the following: • tS percent reductions. • Expected reductions from the FMVCP (in effect as of November 15, 1990) and RVP program (1990—1996). • Reductions from corrections to RACT rules. • Reductions from corrections to 1/14 programs. The expected reductions from the FMVCP and RVP program and any required corrections to RACT rules and 1/14 programs, which are calculated based on the methods described in section 2.1 of this document, should be documented on paper showing each step, 24 ------- discussing any assumptions made, and stating the origin of the numbers used in- the calculations. Target Level for 1996 The target level of emissions for 1996 is the maximum amount of 1996 anthropogenic emissions within the nonattajnnterit area that are permitted to occur while complying with the rate-of- progress requirements. The emissions level is determined by subtracting the total expected reductions from the 1990 rate-of- progress base year inventory. The EPA expects the States to document the target emissions level for 1996 as well as the calculations made in determining the target. In order to develop control measures in time to meet the required reductions by 1996, •States should submit their 1996 target level of emissions to EPA by November 1992. The following section provides background on growth factors and discusses how the growth factors that are required with the November 1992 SIP submittal should be determined and documented. Economic Activity and Growth: Determinants and Indicators Economic activity is a factor influencing the level and form of anthropogenic pollution. Economic activity levels are determined by the forces of supply and demand. But emissions are determined by specific production processes (e.g., xx printing or yy printing), inputs to those processes (e.g., low solvent versus ...), and the levels of output. With no change in the utilization of those processes, no additional processes, and no change in quality or quantity of inputs to those processes, the relationship of output to emissions seen in the past should be projected to occur in the future. However, if utilization rates change, new processes are adopted, or there are input changes, the relationship between output level and emissions seen in the past may not be an appropriate assumption for projecting future emissions. Note that growth factors are not included in the calculations of the 1990 adjusted base year inventory or the 1996 target. Growth factors are needed, however, for the 15 percent demonstratj ’fl as part of the rate-of-progress plan that is due on November i993 for all moderate and above nonattainment areas. Growth fa : are also needed for the attainment demonstration that is d 1 O November 15, 1993 for moderate ozone nonattainment areas using empirical kinetic modeling approach (EXMA)S and on November 15, 1994 for moderate ozone nonattainment areas using UAM and all serious and above ozone nonattainnient areas. States should include the draft rate-of-progress growth factors in both ,uter and written formats to EPA by November 15, 1992. Two sets of growth factors should be provided. One set is used to project the growth between 1990 and 1996 for rate-of-progress plan purposes, and the other set is used to project growth up through the year of attainment for the attainment demonstration for modeling purposes. These sets are basically the same for 25 ------- moderate areas, which must demonstrate attainment by 1996. The computer format for the growth factor subçd.ttal is presented in Table 1. Other information that should be included with the list of growth factors includes: State ID, County ID, zone code (if the growth factor is to be used for a specific zone within a county), source category code (either SIC, ps source classification code, or AMS source category code), growth factor reference (e.g., Bureau of Economic Analysis (BEA), plant- supplied. etc.), and control information discussed below. Any information not contained in the spreadsheet file (e.g., which agency submitted the growth information and assumptions made in preparing the information) should be submitted on paper accompanying the PC disk). • Well known sources of information and guidance on economic activity projections include the BEA’s Realonal Prplections to 2040 (see references 13, 14, and 15) and Procedures for Preparing Emissions Prolections (EPA-450/4-91-019). (See reference 16.) There will be more information forthcoming regarding economic activity and growth in a separate volume of the rate-of-progress plan guidance, entitled “Growth Factors, Projections, and Control Strategies,” to be issued in the fall of 1992. Control Measures/Factors The CAAA mandated controls and their associated control efficiencies and rule effectiveness factors for both the rate-of- progress plan and the attainment demonstration are required in written and computer diskette (see Table 1) formats by November 15, 1992. The additional controls required to meet the 15 percent and/or attainment demonstration requirements are encouraged, but not required for this submittal. The control measure information consists primarily of a list of control measures and associated control efficiencies on a computer diskette file formatted as depicted in Table 1. For •control measures that will be applied during modeling of attainment, control information must be reported for the entire modeling domain, unless measures are specifically limited to the nonattainment area. Supplied control information for attainment year strategies will be used as input to the upcoming ROM exercises to improve consistency between ROM and urban area modeling results. Also ià luded should be the rule penetration (percentage of rule coverage) associated with new area-source control measures and any expected changes in rule effectiveness for point or area sources. In addition to the data on spreadsheet, paper documentation should be provided describing the control measures. assumptions made, and any further explanation needed for the information listed on the spreadsheet. 26 ------- TABLE 1. PROJECTION AND CONTROL FACTOR FORMATS puaJi V16$ .$3U 4 fl?9 oomu 7 PUI’ osnu COINROL V1C!DICY flP8’ 99$ 9CS ID 1 ICC • ?*CT0S p flRg sC VOC 501 CO ILI UVeT V U NOLI P IIIRA?ICN TII&’ VOC NO. CO VOC UO - CO Growth new controli (existina RACT categoriesetc.) 51 087 x x 0017 01 49 10100701 1.30 0.00 68.10 0.00 xx.xx 80.00 xx.xx mu 100.00 xxx.xx 90 si 087 0017 02 49 10100701 1.30 85* 0.00 68.10 0.00 xx.xx 80.00 xx.xx xu.xx 100.00 xxx.xx 90 51 087 aux 0132 01 49 20100202 1.45 SEA 0.00 88.00 0.00 xx.u 80.00 xx.xx xxx.xx 100.00 xu.xx 90 CAAA mandated controls 51 031 0005 27 •2 5 40201901 1.32 SEA 72.00 0.00 0.00 80.00 xx.xx xx.xx 100.00 xu.xx xxx.xx 95 SI 059 xxxx 0024 21 25 40201901 1.32 SEA 72.00 0.00 0.00 80.00 xx.xx xx.xx 100.00 xxx.xx mu 95 SI 710 xxxx 0009 34 37 40301699 1.38 SEA 88.00 0.00 0.00 80.00 xx.xx xx.xx 100.00 xxx.xx xxx.xz 95 SI 087 xxxx xxxx xx xx 2501060050 2.01 SEA 95.00 0.00 0.00 80.00 xx.xx xx.xx 91.00 xxx.xx xxx.xx 95 Additional controls to meet 15 percent rate-of-proaress reduction 51 087 xxxx 0012 02 28 30120680 1.12 SEA 88.00 0.00 0.00 90.00 xx.xx xx.xx 100.00 xu.xx xxx.xx 94 51 087 xxxx 0137 01 25 40202001 1.67 SEA 95.00 0.00 0.00 80.00 xx.xx xi.xx 100.00 zxz.xx xxx.xx 95 95 51 087 XXXX xxxx xx xx 2401030000 1.19 SEA 94.00 0.00 0.00 80.00 xx.zx xx.xx 100.00 xxx.xx xu.xx ,- 8 FIPS Federal information processing standards. SIC — Standard industrial classification. 10 — Source classification code for AIRS facility subsystem (AFS) reporting. 11 scc — Source category code for AIRS area and mobile subsystem CAMS) reporting. 12 Year that new control takes effect (e.g.. regulation is enacted in 1994. but takes effect in 1995) . ‘ Bureau of Economic Analysis. ------- 3.3 Attaifl eflt Demonstration States that do not intend to use UM4 must submit their attainment demonstrations as part of the rate-of-progress sip revision that is due in November 1993. Moderate areas are expected to attain the NAAQS for ozone by November 15, 1996. These moderate areas may either use tJAM or EKMA in their modeling demonstrations. Serious and above areas are required to use UA14 in their modeling demonstrations. Moderate interstate nonattainment areas are required to use UAM; moderate intrastate areas have the option of using UAM. Those moderate areas electing to use E 4A must submit a SIP revision by November 1993 incorporating a modeling demonstration which shows that the identified control measures will be sufficient to attain the NAAQS by November 15, 1996. If an area elects to use the UAM for its modeling demonstration, it may apply for a 1-year extension (to November 1994) for submitting a SIP revision reflecting an attainment demonstration. Both UAM and E require emissions inventories for VOC, NOR, and Co. 28 ------- 4.0 CREDITABILITY OF EMISSIONS REDUCTIONS This section discusses the creditability of emissions reductions from selected control programs to the 15 percent voc emissions reduction requirement. This presentation is not intended to be Comprehensive in scope; instead, it is included to •provide preliminary guidance while States begin developing their control strategies. A future document in this guidance series, “Growth Factors, Projections, and Control Strategies,” will describe details on emissions reductions creditability for additional control measures. States can credit emissions reductions toward the 15 percent VOC emissions reduction requirement only if the CAAA do not specify that such emissions reductions are not creditable, and the reductions meet the following requirements. All emissions reductions must be real, permanent, and enforceable. States must keep careful records of all emissions reductions to ensure that the same reductions are not “double-counted” or, more simply, used more than one time. In all circumstances, any real emissions reductions that contribute to attainment of the standard are creditable in the attainment demonstration. Section 182(b)(1)(C) and section 182(b)(1)(D) explicitly disallow certain reductions from counting toward the fulfillment of the 15 percent reduction in emissions requirement. ALt1 real, permanent, and enforceable post-1990 VOC emissions reductions are creditable toward the 15 percent requirement except for reductions resulting from the following: 1. The FMVCP tailpipe or evaporative standards promulgated prior to 1990. 2. Federal regulations on RVP (55 FR 23666, June 11, 1990). 3. State regulations required under section 182(a) (2) (A) submitted to correct deficiencies in existing RAC’l ’ rules. 4. State regulations required under section 182(a) (2) (B) tp establish an I/M program or correct deficiencies in sting I/M programs. Remember tI t’. the noncreditables identified in numbers 1 and 2 above are not contained in the 1990 adjusted base year inventory that is used to calculate the 15 percent emissions reduction. The 1990 adjusted base year inventory, in effect, decreases the target level of emissions (i.e., the total level of emissions allowed to be produced). Also, these programs cannot be used to .achieve the 15 percent VOC emissions reductions. The following paragraphs provide a brief discussion of programs that are creditable toward the 15 percent emissions reduction requirement. Also briefly discussed are examples where 29 ------- reductions are not creditable to the 15 percent reduction (i.e., RA T rule and I/M fix-ups). Not d .scussed in this section are the noncreditable emissions reductions from the FMVCP and RVP program; section 2.1 of this document discusses these programs and how the emissions reductions from these programs are calculated and treated for rate-of-progress purposes. The programs described here do not constitute an exhaustive list of all potential creditable programs. Any other new requirements which generate reductions within a nonattairunent area, such as the marine vessel loading regulations, are creditable toward the 15 percent. 4 • 1 RACT Programs Emissions reductions resulting from required corrections to VOC RACT rules (“RACT fix-ups”) are not creditable toward the required 15 percent VOC emissions reduction; any future reductions resulting from measures not associated with the -required corrections would be creditable. For example, RACT rule corrections involving revision to applicability thresholds and emissions limits, or additions of missing regulations that were required preenactment are not creditable toward the 15 percent VOC emissions reduction requirements (or offsets). If the State revises the emissions limit or changes the applicability threshold beyond the level required in EPA guidance (see reference 17), and these modifications result in further emissions reductions, these additional reductions are creditable. In this case, the State would need to differentiate, through documentation submitted in the rate-of-progress plan, between emissions reductions that occurred through a correction to the RACT rule and the additional reductions that resulted from extension of the rule to sources of a lower threshold than recommended in EPA’S model RACT rule guidance. RACT Fix-tT s Section 182(b) (1) (D) (iii) specifies that emissions reductions generated from corrections to RACT rules (RACT f ix- ups) required under section 182(a) (2) (A) are not creditable toward meeting the rate-of-progress requirements. These -correctio kçan be-described in two ways: (1) where the emissions reduction$jf Cin the corrections are difficult to attribute directly t he. fix-up Ca iy emissions reductions associated with these typà ãf corrections may generally be considered rule effectiveness improvements), and (2) where the resultant decrease in emissions is more clearly attributable to RACT fix-ups. In the first case, emissions reductions associated, with such fix-ups are difficult to sort-out from those achieved from rule effectivei ess and, therefore, EPA believes that it is appropriate to allow such corrections, in combination with improved cciiipiiance programs that result in additional, quantifiable, and enforceable emissions reductions, to count towards meeting the rate-of-progress requirements as part of a rule effectiveness 30 ------- improvement effort. For example, RACT rule corrections that add the appropriate recordkeeping requirementi or test methods do not directly result in additional emissions reductions. However, the resulting RACT rules are more enforceable, and the corrections make determining compliance an easier task. The EPA believes that in such situations, credit is given to the States for improving the compliance programs, not for correcting the RACT rules, although the RACT fix-up program was essential to creating more enforceable rules. In the second case, however, corrections do result in additional, enforceable, and quantifiable emissions reductions. These corrections, which are not creditable toward the 15 percent requirement, include situations where: • A rule was missing (i.e., a State committed to develop a rule as part of its 1977 SIP, or post- 1982 SIP, but never carried through on the commitment prior to the CAAA). • The limit was wrong. • A capture system is now required to ensure meeting the RACT limit. Appendix B provides example emissions reduction calculations for each of these three examples. These examples are not intended to be fully inclusive. States should evaluate all RACT rule corrections to determine if such corrections result in real, enforceable, and permanent emissions reductions. If so, such reductions must be quantified and cox sidered noncreditable in the SIP development process. RACT Catch-Ups Emissions reductions resulting from RACT catch-ups are creditable. One example of a RACT catch-up occurs when applying the RACT rules to the newly designated portions of a preenactment nonattainment area not previously subject to the rules. For example, if an area is extended to include three counties that were not previously part of the nonattainment area, application of RACT ru] to sources in those counties will result in creditable Lssions reductions.’ 4 However, States that employed statewide MC I ’ rule implementation to avoid the new source preconstruction monitoring requirements will not necessarily receive credit. Such States will only receive credit for the emissions reductions resulting from the enhancement of RAC1’ rule requirements brought about by the CAAA, extending beyond RACT rule requirements already on the books, and implemented after the 1990 base year. ‘ 4 1n addition, if the counties were not part of an existing I/H program, extension of the I/M program to the counties will result in creditable reductions. 31 ------- Reductions achieved through rules adopted Pursuant to any new control technique guideline (CTG) are.. creditable only to the extent that the reductions were not required by a SIP or Federal implementation plan developed under the pre-antended Act. For example, if a flon-CTG rule in a SIP prior to enactment (or required to be included in such a SIP) required an 81 percent reduction in VOC emissions and a new CTG for the same source category recommends a 90 percent reduction, to the extent that a specific source achieves the 90 percent reduction, only up to 9 percent would be creditable. In addition, if a State was required to adopt a RACT rule for a particular source under the pre-amended Act but failed to do so, adoption of a rule for that source would be considered part of the RACT fix-ups. Therefore, any reductions achieved by such a rule would not be creditable. 4.2 Inspection and Maintenance Programs The I/M Section of the Emission Planning and Strategies Division of the EPA’S Office of Mobile Sources has published a draft technical support document that discusses I/M program performance standards for VOC emissions. (See reference 18.) Emissions reductions that result from corrections to I/M programs that failed to meet this performance standard, or from corrections to programs that failed to meet a more stringent standard previously included in the SIP, are not creditable toward the 15 percent emissions reduction requirement. Any other improvements in 1/14 programs required by the CAM (such as enhanced 1/14) or any improvements that a State chooses to make in a new SIP are creditable. In the case where a State has both made corrections to its SIP according to the EPA’s minimum performance standard, and included additional provisions that go beyond that standard, the State will model two r/M programs in the MOBILE model to calculate the creditable reductions; one representing the program up to the EPA’s minimum standard, and the other with the State’s full I/M program. The difference between the two programs’ emissions reductions represents the portion of the total emissions reduction that is creditable - toward the 15 percent emissions reduction requirement. Appendix C provides details on calculating the emissions reductions from I/M program corrections. 4.3 Preen tment Banked Emissions Reduction Credits If t j tate has an emissions credit bank that meets the EPA’S requi eiñents under an earlier policy statement (see reference 19), the State is allowed to use its preenactment banked emissions reduction credits to facilitate the location of new sources in nonattainment areas during the 1990-1996 period. However, because these reduction credits represent emissions that are not included in the 1990 base year inventory, any additional emissions that result from the use of banked credits must be treated as growth in order to ensure that the 15 percent VOC emissions reduction requirement is achieved. Also, it is important to note that the use of preenactment banked emissions 32 ------- “V credits must be in accordance with the offset ratios prescribed in the CAM (e.g., 1.3 to 1 in severe are s.) Figure 3 presents an example of the use of preenactment banked emissions credits during the 1990-1996 period. In this example, a new 30 tpy source of VOC emissions wishes to locate in a severe nonattainment area, and the State allows the source to use available preenactment banked emissions credits. Because the source wants to locate in a severe nonattainment area, 39 tpy of voc emissions must be removed from the bank (i.e., 30 tpy x 1.3 — 39 tpy). Although the bank has been reduced by 39 tpy, there has been a 30 tpy increase in emissions in the nonattaininent area due to the new source. ‘P0 assure that new source growth will not interfere with the 15 percent VOC emissions reduction requirement ‘ihen preenactment banked credits are used, existing sources must eventually, by time of reconciliation, reduce their emissions at least as much as the emissions growth. C ) ,Bsrk 39 tpyinb.nk * + 9tpyfrosnome ratloof 1.3 to 1 M w.d + 30 spy .15 spy .15 spy Figure 3. Ixiaple of ussof pnactaent banked uiss ions credits. 33 ------- 4.4 Maximum Achievable Control Technology (MACT) Standards General Reauirements Many of the 189 hazardous air pollutants listed under section 112(b) (1) of the Act are VOC’s. Any emissions reductions of a hazardous VOC resulting from the application of a MACT standard is creditable toward the 15 percent VOC emissions reduction requirement for ozone nonattainment areas. Any incidental emissions reduction of a non-hazardous VOC resulting from the application of a MACT standard is also creditable toward the 15 percent VOC emissions reduction requirement. It is important to note that some sources will be subject to both MACT standards and RACT rules. Because only the more stringent of the two standards will apply in these cases, States should be aware that double counting of the VOC emissions reductions from these two programs is not permitted. States should recognize that reductions resulting from MACT standards must occur prior to November 15, 1996, to be creditable toward the 15 percent VOC emissions reduction requirements. Most MACT standards will not be promulgated until after the post-1996 emissions reduction requirements take effect. Guidance regarding the creditability of MACT reductions toward the post-1996 reduction requirements is presently under development within EPA. Section 112(d) (1) of the CAAA requires the promulgation of regulations establishing emissions standards for categories and subcategories of major sources and area sources of the 189 hazardous air pollutants. The emissions standard for a particular hazardous air pollutant emitted from a new or existing source must be based on the maximum degree of reduction that the Administrator determines is achievable through the application of emissions control technologies. The determination of MACT considers the cost of achieving such emissions reductions and any non-air quality health and environmental impacts and energy .reguirements. Early Reductions Proaram As a temporary alternative to complying with an applicable MACT standaj 4 , an existing source may elect to comply with the early red pn requirements of section 112(i)(5). By electing to achievq ii*-ly reductions, an existing source may, under certain conditions, meet an alternative emissions limit in lieu of meeting an otherwise applicable MACT standard. The alternative emissions limit expires 6 years after the otherwise applicable MACT standard compliance date, at which time the source muSt comply with the MACT requirement. Except as follows, to a n the MACT compliance extension the reduction must be achiewed before the otherwise applicable MACT standard is first p o L A source may also obtain an extension if it commits to make the 90 percent reduction prior to proposal of the MACT standard and actually achieves the 90 percent reduction prior to January 1, 1994. 34 ------- The early reduction program requires a source to achieve hazardous air pollutant emissions reductiQfls of at least 90 percent (at least 95 percent in the case of particulates). The emissions reduction must be determined from a comparison of the actual post-control emissions with the actual and verifiable •emissions in a base year not earlier than 1987. A base year of 1985 or 1986 can be used by a source if its emissions data are based .on information received by the Administrator prior to November 15, 1990, pursuant to an information request issued under section 114 of the Act. • Hazardous VOC emissions reductions under the early reduction program are creditable toward the 15 percent VOC emissions reduction requirements to the extent that reductions were taken after the 1990 base year inventory applicable to the 15 percent VOC emissions reduction requirements. Because a source can credit reductions that took place prior to 1990 toward the early reduction program, the entire 90 percent early reduction may not be creditable toward the rate-of-progress requirement. States should be aware that EPA is developing a policy regarding potential conflicts between the early reduction program and the RACT requirements. (See reference 20.) The interaction between the early reduction program and RACT requirements causes concern because the prospect of applying RACT requirements to sources that already made early reductions would effectively limit the attractiveness of, and therefore participation in, the early reductions program. Additionally, States should also be aware that early reductions must be taken prior to November 15, 1996, to be credited toward the 15 percent VOC emissions reduction requirements. Guidance regarding the creditability of section 112(i) (5) early reductions toward the post-1996 reduction requirements is presently under development within EPA. Readers interested in further details regarding the section 112(i) (5) early reductions program are referred to the proposed regulations published in the Federal Register . (See reference 21.) Final rules are anticipated by early 1993. 4.5 Rule Effectiveness Improvements Many States with preexisting nonattainment areas have already adopt?d rules defining RA T for most of the larger sources, i ding non-CTG categories. In such cases, there is considera concern about what additional measures are needed to meet the t rcent VOC emissions reduction requirement. One method of aäh.teving creditable reductions from stationary sources in such areas is to improve the implementatibn of existing regulations. This is referred to as rule effectiveness improvement. These improvements are subject to the same creditability constraints as are the other emissions 35 ------- reductions.’ 5 Rule effectiveness improvements must reflect real emissions reductions resulting from speci$ic implementation program improvements. Actual emissions reductions must result from improving rule effectiveness; simply calculating a higher rule effectiveness using a different methodology is not creditable. Rule effectiveness improvements must be documented at a minimum by conducting a post-implementation (after the implementation of rule effectiveness improvement programs) source-specific emissions study. Two methods are available for calculating creditable rule effectiveness improvements; both require that a post-implementation Stationary Source Compliance Division (SSCD) protocol study be conducted. The first method involves pre- and post-rule effectiveness improvement implementation studies as delineated by SSCD. For example, if the rule effectiveness increases from 50 to 75 percent, the emissions reductions associated with this improvement would be creditable. The second approvable method uses the EPA default value of 80 percent for the pre-rule effectiveness improvement rule effectiveness value. Thus, if the results of a SSCD protocol study show 85 percent rule effectiveness after implementation, the increase in emissions reductions associated with the improvement from 80 to 85 percent would be creditable toward the 15 percent rate-of-progress requirement. Additional discussion of rule effectiveness, including provisions for the calculation and use of category-specific rule effectiveness factors, is available in Guidelines for Estimating and A vlyinp- Rule Effectiveness for Ozone/CO State Implementation Plans . (See reference 22.) The document “Growth Factors, Projections, and Control Strategies,” to be released in the fall of 1992, will provide a list of control measures that involve rule effectiveness improvements. Future guidance is under development for the quantification of rule effectiveness improvements. The •EPA plans to issue the quantification guidance by late fall of 1992. ‘ 5 For ample, some RACT rule corrections that result in improved rule effectiveness may be creditable; a disctssion of this appears in section 4.1 of this document. 36 ------- 5.0 PREVIEW OF THE DEVELOPMENT OF EMISSIONS PROJECTIONS, CONTROL STRATEGY. AND 1996 MILESTONE COMPLIAqCE DEMONSTRATION This document focuses on the development and submittal of the elements of the rate-of-progress plan due by November 15, 1992. While EPA review of this submittal is underway, States should undertake the calculation of emissions projections for the year 1996 and the development of full, control strategies. These elements of the rate-of-progress plan will be due in draft form to EPA by May 15, 1993. The fully adopted rate-of-progress plan i then due by November 15, 1993. A separate guidance document is being developed by EPA on these other elements of the rate-of- progress plan, which will include hypothetical nonattainment area examples in describing the development of the required elements for these submittals. This guidance is expected to be available in the fall of 1992. The first milestone demonstration must illustrate that the area has reached the 1996 target level of emissions as defined in the 15 percent VOC emissions reduction demonstration plan. Actual annual and typical ozone season weekday emissions for point sources should be listed by facility. Area and off-highway source emissions for each county by source category should also be listed. Finally, the highway vehicle emissions should be listed. Once the emissions from all of the known anthropogenic sources are listed, the total emissions for the nonattainment area should be computed and compared to the 1996 target. Section 182(a) (3) (A) requires the States to submit periodic inventories starting the third year after submission of the base year inventory required by section 182(a) (1) and every 3 years thereafter until the area is redesignated to attainment. The EPA recommends that States synchronize their schedules for developing the periodic inventories so that the second periodic inventory (which would be due no later than November 15, 1998) is submitted by February 13, 1997 and addresses emissions in 1996. By accelerating preparation and submittal of the 1996 periodic inventory, the milestone demonstration that is due for serious and above areas by February 13, 1997 can be based on this periodic inventory. If similarly accelerated, future periodic inventories jould then also coincide with subsequent milestone demonstrat . The periodic inventory is to be based on actual emissions ,rn will cover VOC, NO and CO emissions sources. Like the 3 year inventory, the periodic inventory is to be determine&. ig typical peak ozone season weekday emissions. The specific reporting requirements for the 15 percent VOC emissions reduction milestone demonstration will be addressed in an EPA regulation to be promulgated in the summer of 1993. This regulation will address summary data needs as well as detailed reporting requirements. The rule will also address consequences of snfr ittinq an inadequate demonstration (in terms of documentation) as well as consequences of failure to demonstrate the 15 percent VOC emissions reduction. 37 ------- 1. Emission Inventory Reauirements for Ozone State Implementation Plans , EPA-450/4-91 -010, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. March 1991. 2. procedures for the Preparation of Emission Inventories for Carbon Monoxide and Precursors of Ozone. Volume I: Genera]. Guidance for Stationary Sources , EPA-450/4-91-016, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. May 1991. 3. Procedures for Emission Inventory Preparation. Volume IV: Mobile Sources , EPA -450/4-81-026d (Revised), U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. July 1992. 4. User’s Guide to MOBILE4.1 (Mobile Source Emission Factor Model) , EPA-AA-TEB-91 -01, U.S. Environmental Protection Agency, Office of Mobile Sources, Ann Arbor, MI. July 1991. 5. Vehicle Miles Traveled Forecasting and Tracking Guidance , U.S. Environmental Protection Agency, Office of Mobile Sources, Ann Arbor, MI. March 1992. 6. Personal Computer Version of the Biogenic Emissions Inventory System (PC-BEIS) And User’s Guide , EPA-450/4-91- 017, U.S. Environmental Protection Agency, Research Triangle Park, NC. July 1991. .7. Procedures for the Preparation of Emissions Inventories for Carbon Monoxide and Precursors of Ozone. Volume II: Emission Inventory Reguirements for Photochemical Air Quality Simulation Models . EPA-450/4-91-014, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. May 1991. 8. Gu44 for the Preparation of Quality Assurance Plans for Emission Inventories , EPA-450/4-88-023, U.S. EnviI% tal Protection Agency, Office of Air Quality Plani iii -änd Standards, Research Triangle Park, NC. December 1988. 9. Quality Review Guidelines for 1990 Base Year Emission Inventories , EPA-450/4-91-022, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. July 1992. 10. Rxamvle Documentation Report for 1990 Base Year Ozone and Carbon Monoxide State Implementation Plan Emission Inventories , EPA-450/4-92-007, U.S. Environmental Protection 39 ------- Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. March 1q92. 11. Guidelines for Estimating and Applying Rule Effectiveness i r Ozone/CO State Implementation Plans , Draft Report, prepared by Alliance Technologies Corporation, Prepared for U.S.. Environmental Protection Agency, Office of Air Quality planning and Standards, Ozone and Carbon Monoxide Branch, Research Triangle Park, NC. April 1992 (final report forthcoming). 12. 55 FR 23666, “Volatility Regulations for Gasoline and Alcohol Blends Sold in Calendar Years 1992 and Beyond,” June 11, 1990. 13. BEA Regional Prolections to 2040, Volume I: States , U.S. Department of Commerce, Bureau of Economic Analysis, Washington, D.C., U.S. Government Printing Office. October • 1990. 14. BEA Regional Prolections to 2040, Volume II: Metrooolitan Statistical Areas , U.S. Department of Commerce, Bureau of Economic Analysis, Washington, D.C., U.S. Government Printing Office. October 1990. 15. BEA Regional Prolections to 2040, Volume III: BEA Economic Areas , U.S. Department of Commerce, Bureau of Economic Analysis, Washington, D.C., U.S. Government Printing Office. October 1990. 16. Procedures for Preparing Emissions Prolections , EPA—450/4— 91-019, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. July 1991. 17. Model Volatile Oraanic Compound Rules for Reasonable - Available Control Technoloav: Plannina for Ozone Nonattainment Pursuant to Title I of the Clean Air Act (Staff Working Document), U.S. Environmental Protection Agency, Office of Air Quality and Planning Standards, • Research Triangle Park, NC. June 1992. 18. I/M Benefits, and Impacts Analysis , U.S. Envi$ ntal Protection Agency, Office of Mobile Sources, Ann A bC r, MI. February 1992. 19. 51 FR 233 “Emissions Trading Policy Statement; General Principles for Creation, Banking and Use of Emission Reduction Credits; Final Policy Statement and Technical Issues Document.” December 4, 1986. 20.. “Early Reductions Program/Title I Interface,” Memorandum from John S. Seitz, U.S. Erivironntenta .]. Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. December 20, 1991. 40 ------- 21. 56 FR 27338. “National Emission Standards for Hazardous Air pollutants for Source Categories; Proposed Regulations Governing Compliance Extensions for Early Reductions of Hazardous Air Pollutants.” June 13, 1991. 22. Reference 11. 41 ------- APPENDIX A: DEFINITION OP TERMS This appendix provides the specific definitions of EPA terms as they are used in this guidance. Different EPA programs sometimes use different definitions of the same term (e.g., major source). This appendix notes where conflicts occur in the definition of a term used in this guidance. These definitions are presented for the purposes of this guidance document only; the reader is advised to refer to specific regulations, policies, and sections of the Act to obtain complete definitions for the program or title of interest. Area Source Any stationary or non-road source that is too small and/or too numerous to be included in the stationary point-source emissions inventories. Attainment Demonstration Moderate and above ozone nonattainment areas must demonstrate that the reductions specified in the revised SIP will result in modeled air quality for the nonattairunent area that achieves attainment by the applicable attainment date. This requirement can be met through the application of an EPA-approved model and EPA-approved modeling techniques described in the current version of the Guidance on Air Quality Models’ 6 (EPA-450/2-78-027R), which is currently under revision. Two models are suggested: the UAZ4 or ERMA. The EPA requires the submittal of attainment demonstrations employing UAM for serious and above areas and multi-State moderate areas as part of the SIP revision due by November 15, 1994. Attainment demonstrations based on EIQ4A for moderate nonattairunent areas within a single state (intrastate moderate areas) must be submitted as part of the SIP revision due by November 15, 1993, unless the State chooses to use UAM, in which case the demonstration must be submitted as part of the SIP revision due by November 15, 1994. The use of EI (A is described in Guideline for Use of City-Specific EIQ4A in Preparing Ozone SIP’S (EPA- 4 50/4-80-027) as well as the aforementioned guideline that is under revision. This document, and the appropriate Regional Office, should be consulted before an analysis is conducted with this modeling approach. The use of UAM is described in Guideline •for Regulatory Application of the Urban Airshed Model (EPA-450/4- 91—013) ‘ 6 Guidance on Air Quality Models (Revised) , EPA-450/2-78-027R, July 1986 (currently under revision). 17 j jj for Reaulatorv Application of the Urban Airshed 1 del , EPA-450f4-91-013, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. A-i ------- Attainment Determination The EPA must determine within 6 months after the applicable attainment date whether an area has attained •the NAAQS for ozone. The attainment dates are as follows: • Marginal areas November 15, 1993. • Moderate areas November 15, 1996. • Serious areas November 15, 1999. • Severe areas November 15, 2005 (severe areas with a 1986-1988 ozone design value of 0.190 up to, but not including 0.280 parts per million have until November 15, 2007). • Extreme areas -- November 15, 2010. In making the attainment determination, EPA will use the most recently available, quality-assured air quality data covering the 3-year period preceding the attainment date. For ozone, the average numcer of exceedances per year after adjustment for missing data are used to determine whether the area has attained. Basic Inspection and Maintenance (I/M ) Programs requiring the inspection of vehicles including, but not limited to, measurement of tailpipe emissions, and mandating that vehicles with tailpipe emissions higher than the program cutpoints be repaired to pass a tailpipe emissions retest. Basic I/M programs must be at least as stringent as the requirements set out in section 182(a) (2) (B). Malor Stationary Source The CAM have multiple definitions for major stationary sources depending upon the nonattainment classification and the pollutant. Section 302 of the CAM defines a major stationary source as one that directly emits, or has the potential to emit, 100 tpy or more of any air pollutant. As exceptions to this rule, major stationary source emissions thresholds, as defined in Part D of Title I of the CAM, are listed in Table A-i for both VOC and NO sources. Milestone Compliance Demonstration For serious and above - classified nonattainment areas, demonstrating achievement of the 15 percent VOC emissions reduction over the 1990-1996 period, or demonstrating subsequent 3 percent VOC emissions reductions per year averaged over each consecutive 3-year period from November 15, 1996 v* il the attainment date. Section 182(g) (2) requires that with 90. days of the date on which an applicable milestone occurs (né ncluding an attainment date on which a milestone occurs in esses where the standard has been attained), States with nonattainment areas must submit a demonstration that the milestone has been met (e.g., the 15 percent VOC emissions reduction is demonstrated by February 13, 1997). The EPA expects to release regulations pertaining to the requirements of the milest ii meinstration in the Summer of 1993. 1990 tusted Base Year Inventory Section 182(b) (1) (B) and CD) describes the inventory (hereafter referred to as the adjusted base year inventory) from which moderate and above ozone nonattaininent areas must achieve a 15 percent reduction in VOC A-2 ------- TABLE A-i. MAJOR SOURCE THRESHOLDS AND !UNIMUM EMISSIONS OFFSET RATIO REQUIREMENTS FOR OZONE NONATTAINMENT AREA CLASSIFICATIONS Ozone Nonattairunent Area VOC (tpy) NO (tpy) Mini uia Emi8sion e Offset Ratio Required Extreme 10 10 1.5 to 118 Severe 25 25 1.3 to 118 Serious 50 50 1.2 to 1 Moderate 100 100 1.15 to 1 Moderate, in an ozone transport region 50 100 1 .15 to 1 Marginal 100 100 1.1 to 1 Marginal, in an ozone transport region 50 100 1.15 to 1 All other nonattainment areas, outside of an ozone transport region’ 9 100 100 >1.0 to 1 All other nonattainment in an ozone transport areas, region’ 9 100 100 1.15 to 1 Attainment, in an ozone transport region 50 100 1.15 to 1 ‘ 8 The minimum ratio is reduced to 1.2 to 1 if the applicable State implementation plan requires all major sources of VOC and NO emissions to use best available control technology. ‘ 9 me other nonattairunent areas are submarginal, transitional, and incomplete/no data. A-3 ------- emissions by 1996. This inventory is equal to “the total amount of actual VOC or NO emissions from all ax thropogenjc (man-made) sources in the area during the calendar y ar of enactment,” excluding the emissions that would be eliminated by FMVCP regulations promulgated by January 1, 1990, and RVP regulations (55 FR 23666, June 11, 1990), which require specific maximum RVP levels for gasoline in particular nonattaininent areas during the peak ozone season. The 1990 rate-of-progress base year inventory (defined below) removes biogenic emissions andemissions from sources listed in the base year inventory that are located outside of the nonattairunent area. The adjusted base year inventory removes the emissions reductions from the FMVCP and RVP program from the 1990 rate-of-progress base year inventory. The adjusted base year inventory, which is due by-November 15, 1992, is used to calculate the required 15 percent reductions. Adjusted Base Year Emissions Inventory — Base Year Emissions Inventory, minus the following: • Biogenic source emissions. - • Emissions from sources outside of the nonattainment area boundary. • Emissions reductions from the PMV P. • Emissions reductions from the RVP rules. 2 o 1990 Base Year Inventory The 1990 base year inventory is an inventory of actual annual and typical weekday peak ozone season emissions that States use in calculating their adjusted and projected inventories, and in developing their control strategy. The base year inventory comprises emissions for the area during the peak ozone season, which is generally the sununer months. It includes anthropogenic sources of NO and Co emissions, and both anthropogenic and biogenic sources of VOC emissions. Also included in the inventory are emissions from all stationary point sources and area sources as well as highway and nonhighway mobile sources located within the nonattainment area, and stationary ..sources with emissions of 100 tpy or greater of VOC, NOR, and CO emissions within a 25-mile wide buffer zone of the designated nonattaininent area. The base year inventory contains off-shore sources located within the nonattainnient area boundaries and of f- shore stationary sources with emissions of 100 tpy or greater of VOC, N0 , or CO emissions within the 25-mile wide buffer area. For nonatt inn ent areas that will perform photochem.tcal grid modeling ( .q., serious and above areas and multi-State moderate areas), eini4 ions for the entire modeling domain, which is usually larger than the nonattainment area because ozone is an area-wide problem, are required in the modeling inventory. This modeling inventory could be submitted with the base year inventory, or the modeling inventory submittal could be in a separate package. It is important to note that the 1990 base °See figures 1 and 2 in section 2.0 of this document for a further description of the relationship of the adjusted base year inventory to the 1990 rate-of-progress base year inventory. A-4 ------- year inventory serves as the starting point for all other inventories. 1990 Rate-of-Progress Base Year Inventory An accounting of all anthropogenic VOC, CC, and NO emissions in the nonattaininent area. This emissions inventory is calculated by removing biogenic emissions and the emissions from sources that are located outside of the nonattainnient area from the base year inventory. This inventory is used in developing the adjusted base year inventory. It is also used as the basis from which to calculate the 1996 target level of emissions. 1996 Taraet Level of Emissions The 1996 target level of emissions is the maximum amount of ozone season VOC emissions that can been emitted by an ozone nonattaininent area in 1996 for that nonattainiuent area to be in compliance with the 15 percent rate-of-progress requirements. It is calculated by first taking 15 percent of the adjusted base year inventory emissions. This emissions value is then added to the expected emissions reductions due to the FMVCP and RVP program, and from corrections to any deficient RACT rules and I/M programs. The summation of the 15 percent, the expected reductions from deficient I/M and RACT programs, and reductions from the FMVCP and RVP program are then subtracted from the 1990 rate-of-progress base year inventory to arrive at the 1996 target level of emissions. This target is used by States to design their 15 percent.VOC emissions reduction control strategies. The projected control strategy inventory used in the rate-of-progress plan must be at or below the 1996 target level of emissions to demonstrate that the 15 percent VOC emissions reduction will be accomplished. 1996 Target Level of Emissions — Rate-of-Progress Base Year Inventory, minus the following: • 15 percent of the adjusted base year inventory emissions. • Emissions reductions from corrections to any deficient RACT rules. • Emissions reductions from corrections to deficient I/K programs. • Emissions reductions from the pre-1990 FMVCP. • Emissions reductions from RVP rules. Peak Ozone Season The contiguous 3-month period of the year during which the highest ozone exceedance days have occurred over the 3 to 4 years prior to the 1990 base year. Most ozone nonattainment areas have a peak ozone season lasting from June through August. Offset Ratios For the purpose of satisfying the emissions offset reduction requirements of section 173 (a) (1) (A), the emissions offset ratio is defined as the ratio of total actual emissions reductions of VOC (and NO unless exempted under section 182(f]) obtained as offsets from existing sources to total allowable emissions increases of such pollutant from the new source. (See A-5 ------- Table A-i for a list of offset ratios by nonattaininent area.) Additional information on offsets will be% provided in forthcoming guidance regarding the interaction of the 15 percent voc emissions reduction requirements of Title I with the emissions reduction requirements of other Titles (i.e., New Source Review, Title II reductions, etc.). Point Source Any stationary source that has the potential to emit more than some specified threshold level of a pollutant or is identified as an individual source in a State’s emissions inventory. For base year SIP inventory purposes, point sources are defined as sources emitting 10 tpy or more of VOC emissions or 100 tpy or more of N0 or Co emissions. Post-1996 Rate-of-Progress Plan The portion of the SIP revision due by November 15, 1994, which describes how serious and above areas plan to achieve the post-1996, 3 percent per year voc emissions reductions averaged over each consecutive 3-year period from November 15, 1996 until the attainment date. This SIP revision also includes the attainment demonstration for moderate interstate nonattainment areas and serious and above nonattainment areas. RACT “Catch-ups ” The application of RACT for all applicable sources as listed in section 182(b) (2), regardless of what was previously required. Each moderate and above ozone nonattainment area (as well as attainment areas within the ozone transport region) are subject to the RACT “catch-up” requirement of section 182(b) (2). The new law requires any of the above areas that had not previously adopted RACT consistent with all of the CTG’s to “catch-up” and apply RACT to all sources covered by a preenactment or post-enactment CTG document. Many of these areas were not previously required to apply RACT to sources covered by Group III CTG’s (CTG’s published after September 1982). In addition, areas previously considered rural nonattaininent, which had to apply RACT only to certain major sources in certain CTG categories under prior policy, will have to revise their SIP’S to apply RACT to all sources, including norunajor sources, that are covered by any CTG.. The RACT “catch-up” provision also requires these nonattainment areas to adopt RACT rules for all major sources not covered by a CTG. Additional information on the RAC1’ “catch-up” program will be provided in forthcoming guidance regarding- t interaction of RACT rules with emissions inventori 1.ç RACT “Fix-ups ” Corrections States are required to make under section 182(a) (2) (1) to their current RACT rules to make up for deficiencies (e.g., improper exemptions) in pre-amendment plans. Under RACT “fix-ups”, States are required to have RACT rules that cc ply with section 172(b) of the pre-1990 Act, as interpreted by EPA’s pre-axnendment guidance. Since the RACT “fix-up” provisions refer to RACT as required by pre-amended section 172(b), only areas subject to pre-amended section 172(b) need to meet the PACT “fix-up” requirement. Therefore, for nonattainment areas that will be expanded to contain regions that were designated A-6 ------- attainment prior to enactment, the RACT corrections are only for the original rionattainment area. The RAC “fix-up” provision essentially codifies EPA’s SIP calls, issued in May 1988 and November 1989 (as announced in the Federal Register on September 7, 1988 (53 FR 34500] and July 30, 1990 (55 FR 30973]). The RAC’r fix-ups were due on May 15, 1991. Between May 24 and Tune 24, 1991, EPA’s Regional offices mailed letters to several Governors and air agency officials concerning the progress of the States in meeting RACT “fix-up” requirements and listing the outstanding deficiencies that still had not been corrected. Additional information on the RACT “fix-up” program will be provided in forthcoming guidance regarding the interaction of RACT rules with emissions inventories. Rate-of-Progress Plan The portion of the SIP revision due by November 15, 1993, that describes how moderate and above ozone nonattainment areas plan to achieve the 15 percent VOC emissions reduction. All moderate intrastate areas that choose to utilize the EKMA in their attainment demonstration, are also required to include their attainment demonstration in this SIP revision. Rule Effectiveness (RE ) For stationary sources, a measure of the •extent to which a regulatory program achieves emissions reductions. An RE of 100 percent reflects a regulatory program achieving all the emissions reductions that could be achieved by full compliance with the applicable regulations at all sources at all times. However, regulations typically are not 100 percent effective due to limitations of control techniques or shortcomings in the implementation and enforcement process. The EPA allows the use of three different methods for determining RE: an 80 percent default value; results from EPA Questionnaires; or results from a Stationary Source Compliance Division (SSCD) study. Volatile Organic Comoound Any compound of carbon, excluding CO, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions. This includes any organic compound other than those EPA has determined to have negligible photochemical reactivity. 21 2157 Federal Register 3945, February 3, 1992. A-7 ------- APPENDIX B: CALCULATION OP EMISSIONS REDUCTIONS PRO RACT RULE CORRECTIONS Section 4.1 of this document discusses cases where RACT rule corrections do not directly result in quantifiable emissions reductions. Any incidental reductions that occur in these cases may be handled as part of a rule effectiveness improvement. Corrections to RA T rules that may result in additional, enforceable, and quantifiable emissions reductions include situations where: • A rule was missing (i.e., a State committed to develop a rule as part of its 1977 SIP, or post- 1982 SIP, but never carried through on the commitment prior to the CAAA). • The limit was wrong. • A capture system is now required to ensure meeting a RACT limit. For the case where a rule was missing, the State should first calculate the uncontrolled emissions in 1990 and multiply the 1990 uncontrolled emissions by the appropriate growth factor. Next, the State must evaluate the expected emissions reduction in 1996 by calculating 1996 emissions (including growth and controls) and subtracting this number from 1990 emissions. This total expected emissions reduction should be added to the total reductions in step 5 in the example in section 2.1 of this document. These reductions are not creditable toward the 15 •percent VOC emissions reduction requirement. For the second case, the State should first evaluate the pound (lb) VOC/gallon (gal) solids for each limit. 1990 limit = 3.5 lb VOC/gal coating 1) 1990 lb VOC/gal solids = 3.5 lb VOC x 1 gal coating = 0.476 aal VOC gal coating 7.36 lb VOC gal coating 2) Calculate solids in 1 gal coating: 1 - 0.476 = 0.524 gal solids 3) Calculate gallons of coating needed to get gallon of solids: 1 aal coating = 1.908 aal coating 0.524 gal solids gal solids 4) Convert 3.5 lb/gal coating to lb VOC/gal solids: 3.5 lb VOC x 1.908 gal coating = 6.678 lb VOC gal coating gal solids gal solids The 19% limit will be 2.9 lb/gal. Similarly, convert 2.9 lb VOC/gal coating to lb VOC/gal solids. B-i ------- 5) 2.9 lb VOC x 1 gal VOC = 0.394 ia]. voc gal coating 7.36 lb VOC gal coating 6) Volume of solids in 1 gal coating: 1 — 0.394 0.606 gal. solids 7) Calculate gallons of coating needed to get 1 gallon of solids: 1 aal coating = 1.650 aal coating 0.606 gal solids gal solids 8) Convert 2.9 lb VOC gal coating to lb VOC/ga]. solids: 2.9 lb VOC x 1.650 gal coating = 4.785 lb VOC gal coating gal solids gal solids The facility uses 100 gal solids in 1990 day 9) Compare 1990 and 1996 Emissions: 1990 = 6.678 lbs VOC x 100 gal solids = 667.8 lbs VOC gal solids day day 1996 = 4.785 lb VOC x 100 gal solids x growth factor(1.2) gal solids day 574.2 lb VOC day 1990 Emissions — 1996 Emissions = 667.8 — 574.2 93.6 lb VOC day Therefore, 93.6 lb VOC/day are noncreditab ].e. For the third case where a capture system is required, expected emissions reductions should be calculated in the following way. First, uncontrolled emissions should be determined. 1990 Paper Coaters: • 80 percent of emissions coming out of the oven and vented to an incinerator of 98 percent demonstrated destruction efficiency. JO percent of emissions are fugitive from •:* mcontrolled flash-off area. Total . jiñ controfled emissions in 1990 = 1,000 lb/day if total is uncontrolled, however, when system is controlled, 80 percent of this is captured, arid 98 percent of captured issions are destroyed. B-2 ------- So, emissions from the incinerator after control are 1,000 lb/day x (1—(0.80)) x (1—(0.981) = (1,000 lb/day) x (0.20) x (0.02) = 4 lb/day controlled. Total Emissions from incinerator + fugitives = 4 lb/day + (1,000 lb/day x (0.20)) = 204 lb/day 1996 Emissions: New State rule now requires permanent total enclosure, so the controlled emissions are: 1,000 lb day (1.0) (0.02) 20 lb/day Noncreditable Emissions Reductions 1990 Emissions - 1996 Emissions = 204 lb/day - 20 lb/day 184 lb/day The preceding examples are not intended to be fully inclusive. States should evaluate all RACT rule corrections to determine if such measures result in real, enforceable, and permanent emissions reductions. If so, such reductions must be quantified and considered in the SIP development process when preparing the 1996 target level of emissions. If a State is unclear on how to calculate such reductions, then the State should consult with the Regional Office and Headquarters for guidance. B- 3 ------- APPENDIX C: CALCULATION OF EMISSIONS REDUCTIONS PROW l/N PROGRAM CORRECTIONS Corrections to I/M programs occur when either (1) the area’s I/N program does not meet the reductions achieved by EPA’s minimum requirements, or (2) an area’s program does not meet the standards of their current SIP. I/fl program corrections are calculated by modeling two separate I/fl programs in MOBILE4.1: the area’s current I/M program, and the stricter of: the I/fl program described in the area’s SIP, or the minimum I/fl program as specified by EPA. MOBILE4.l (or MOBILE5 with the flag set to turn off new CAAA measures) should be run for calendar year 1996 using I/N input that describes the program before and after corrections are made. The difference between the resulting emissions factors is then multiplied by 1990 VMT to get the emissions reduction associated with the I/M program correction. In case 1, the motor vehicle emissions factor is calculated for 1996 with the area’s current program and with EPA’s model program. In each case, the MOBILE model is run with the pre-CAAA FMVCP and phase II RVP. No additional CAAA requirements are modeled. Sample MOBILE4.1 inputs for EPA’s model program are shown in Table C-i. TABLE C-i. INSPECTION AND MAINTENANCE (I/M) PROGRAM INPUTS I/N Program Characteristics Input Start year (January 1) 1983 Pre-1981 model stringency rate 20% First model year covered 1968 Last model year covered 2020 Waiver rate (pre-1981) 0% Waiver rate (1981 and newer) 0% Compliance rate 100% Inspection type Centralized Inspection frequency Annual Vehicle types covered LDGV The difference in motor vehicle emissions with the current program and the model program is the I/fl program correction. This correction should only be calculated for areas within the nonattainment area which were required to have an I/K program under the Act. C-i ------- The following describes an example I/M program correction calculation. It is important for States o realize that these reductions are not creditable toward the 15 percent vOC emissions reduction requirement. SAMPLE I /M CORRECTION CALCULA 22 1990 VMT: 101.6 million miles per day 1996 MOBILE4.1 emissions factor with area’s current program: 1.291 grams/mile 1996 MOBILE4.1 emissions factor with 1.248 grams/mile Calculate motor vehicle emissions : curreii t program: 101.6 x 106 miles x 1.291 arams = 288,911 lbs/day day mile model program: 101.6 x 106 miles x 1.248 arams = 279,288 lbs/day day mile Calculate I/M correction : I/N correction = Emisêions with current I/N - Emissions with model I/N = 288,911 — 279,288 — 9,623 lb/day of noncreditable emissions. In case 2, motor vehicle emissions are calculated with the area’s current program as implemented and with the program required u 4er the area’s SIP. Again, MOBILE4.1 input files should model the FMVCP and phase II RVP but no additional CAAA controls .: Th6 difference between these two estimates is the I/N correction, This calculation uses total VI’fr and a total speed/vehicle type weighted emissions factor. Alternatively, VMT and emissions factors by vehicle type/roadway class could be used to calculate total emissions under the current program and EPA’S model program. EPA’s minimum model program: C-2 ------- O5’{793 [ O•44 919 5 i 0824 AQ’ID RIP OGC I j0O2.’Oo3 , iO 5’. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards ______ Research Triangle Park, North Carolina 27711 S c t 6MAY 1993 MEMORANDUM SUBJECT: Credit Toward the 15 Percent Rate-of—Progress Reductions from Federal Me sures FROM: G . T. Helms, Chief Ozone/Carbon Monoxide Programs Branch (MD-15) Susan Wyatt, Chief - Chemicals and Petroleum Branch (MD- 3) TO: Air Branch Chief, Regions I-X As you know, mahy States have been asking whether they will be able to take credit in their 15 percent rate-of-progress plans for reductions of volatile organic compounds (VOC) from federal measures and imminent control techniques guidelines. We have identified several categories for which we believe reductions will be achieved by 1996. The attached table lists these categories along with the amount of reductions for which States can take credit in the plans. Please share this information with the appropriate State and local agencies in your Region. If you have any questions, please contact Laurel Schultz at (919) 541- 5511 Attachment cc: Kent Berry Bruce Jordan John Silvasi David Cole Laurel Schultz Kia er Scavo SIP ‘control strategies sub-work group ------- 05’17’93. 10:45 New VOC Related Requirements Cate9ory Percent Reduction’ CT s SOCMI Distillation 98% from each controlled vent SOCMI Reactor Vents 98% from each controlled vent National Rules TSDF Phase I I 93% from 1990 baseline NESHAPS Hazardous Organic NESHAP for SOCMI 5% from 1990 baseline Ethylene Oxide Commercial Sterilizers 97% from each major source . The number in this column represents the percent reduction that EPA will allow States to assume for the purposes of the 15% plans only. 2 The term “major source” is defined for hazardous air pollutants in section 112(a) (1) of the Clean Air Act. ------- OIQ Q,95 ‘ ° Sr 4 , UNITED STATES ENVIRONMENTA L PROTECTION AGENCY Office of Air Quality Planning and Standards _____ Research Triangle Parke North Carolina 27711 p o1( C MAY 131993 MEMORANDUM SUBJECT: Rate-of—Progress Plan Guidance for Ozone Nonattainment Areas FROM: D. Kent Berry, Acting Director Air Quality Management Division (MD-15) TO: Director, Air, Pesticides and Toxics Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X Attached is a document entitled Guidance on the Relationship Between the 15 Percent Rate—of—Progress Plans and Other Provisions of the Clean Air Act , which was developed to guide States as they develop the State implementation plans (SIP’s) to meet the new rate—of-progress requirements of section 182(b) (1). The document specifically focuses on determining the creditability of emissions reduction requirements of section 182(b) of the Clean Air Act. The Clean Air Act Amendments of 1990 (1990 Amendments) now require a specified rate of emissions reductions for all ozone areas classified moderate and above. Moderate and above areas must submit a SIP revision detailing how the area will achieve a reduction in volatile organic compounds (VOC) emissions of at least 15 percent between November 15, 1990 and November 15, 1996 (hereafter called the rate-of-progress plan). The rate—of- progress requirement is calculated from the 1990 base—year emissions inventory. The rate-of—progress plan revision is part of the full SIP (including an attainment demonstration based on modeling) for most moderate areas, and a separate submittal for serious and above areas (due November 15, 1993). The attached document provides technical guidance to support the policy presented in the t General Preamble: Implementation of ------- 2 Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992). The technical guidance provides information on the creditability of emissions reductions associated with programs implemented both prior to enactment of the 1990 Amendments and programs that will be implemented to comply with the requirements of the 1990 Amendments. The programs addressed in this document include the following: new source review, hazardous air pollutant standards, new source performance standards, controls required f or mobile sources, controls required for stationary sources of oxides of nitrogen, economic incentive programs, and operating permits programs. We suggest that you forward this document to your State and local agencies (an unbound original is attached). This document will also be placed on the Technology Transfer Network, the Management and Accountability Process System, and the State and Local Air Directors Bulletin Board under the filename RELATION. RPP. We trust that this information will be of help to you as you guide your States through the SIP development process. If you have questions or comments, please contact David Sanders (919— 541—3356) or Kimber Scavo (919—541—3354). Attachment cc: Air Branch Chief, Regions I-X Jane Armstrong Bill Beal William Becker, STAPPA/ALAPCO John Bosch Ogden Gerald Tom Helms Ned Meyer David Nisenheimer David Mobley Rich Ossias Kimber Scavo Laurel Schultz John Seitz John Silvasi Joe Tikvart Ray Vogel Mary Ann Warner-Seiph Lydia Wegman Dick Wilson Howard Wright ------- - 1 / 7 _______________________________ : - \ C ____ _____ ________ fl t f l — - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ : fl IT T J 5 .s::. ; : . : . * & -. A .. ------- Guidance on the Relationship Between the 15 Percent Rate-of-Progress Plans and Other Provisions of the Clean Air Act Ozone/Carbon Monoxide Programs. Branch U.S. Environmental Protection Agency Office of Air Quality Planning and Standards Research Triangle Park, NC 27711 ------- 11 ------- Page LISTOFTABLES .. v ACRONYMS AND ABBREVIATIONS . . vi EXECUTIVE SUM 1ARY . . . . . . . . . . . . . . . . . . • . 1 • 0 INTRODUCTION . . . . . . . . . . . . . . . . . . . 1.1 Purpose • . . . . . • . . . 1.2 Creditability of Emissions Reductions Associated With RACT Rules and Rule Effectiveness Improvements Toward the 15 Percent Requirements 2.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION REQUIREMENTS AND NEW SOURCE REVIEW PROGRAMS 2.1 Core Requirements of the Part D New Source Review Program 2.2 Emissions Offsets. . . . . . . . . . . . Emissions Offset Requirements • . • . . . Creditability of Emissions Reductions Creditability of Banked Emissions Reduction Credits . . . . . . . • . . . . Minor Source Growth . . . . . . . . . . . . Geographic Location of Offsets . . . . Timing of Offsets . . . • . . . . . . . Offset and Rate-of—Progress Baselines . . . Creditable Emissions Reductions for Netting Growth Allowances . . . . . . • ... . • Construction Bans . . . . . . . . . . • Tribal Lands . • • . . . . • • • . • • NO 1 Requirements . . . . . . . . . • . 3.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION REQUIREMENTS AND PROVISIONS FOR CONTROLLING HAZARDOUS AIR POLLUTANTS . . . . • . . . . • • . . 3.1 National Emission Standards for Hazardous Air Pollutants . . . . . . . . . . . . . . , • • . • 3.2 Maximum Achievable Control Technology Standards 3.3 Early Reduction Program 3.4 Construction, Reconstruction, and Modifications of Major Sources . . . . . . . . . . . . . . . . 3.5 Additional Emissions Standards Available under Sectionll2oftheAct . . • . • Standard to Protect Public Health and the Environment . . . . . . . . . . . . . . Work Practice Standards and Other Requirements Equivalent Emissions Limitation by Permit . . State and Local Standards . . . . . . . . . . CONTENTS S S S . 1 7 9 10 11 11 14 15 15 • S S S • S S S • S S S 2.3 2.4 2.5 2.6 2.7 • . • • 17 . . : 17 • • • 18 • • • 19 • • . 19 • • • 21 . . • 22 • • . 22 • . . 23 . • • 24 25 25 26 28 29 30 30 30 31 31 i i i ------- 3.6 Other EPA Programs . 31 4.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION REQUIREMENTS AND NEW SOURCE PERFORMANCE STANDARDS . . . . . . . . . . . . . . . . . . . . . . . 33 5.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION REQUIREMENTS AND MOBILE SOURCE PROVISIONS . . 35 5.1 Federal Motor Vehicle Control Program (FMVCP) . . . 35 5.2 Reid Vapor Pressure (RVP) . . . . . . . . . . . . . 35 5.3 Reformulated Gasoline . . . . . . . . . . . . . . 36 5.4 Stage II Vapor Recovery Control . . . . .. . . . . 36 5.5 Clean Fuel Vehicle Program for Fleets . . . . . . . 37 5.6 Inspection and Maintenance (I/M) Program . . . . . 38 5.7 On—Board Diagnostic Systems . . . . . . . . . . . . 39 5.8 Transportation Control Measures (TCM’s) . . . . . . 39 6.0 RELATIONSHIP BETWEEN THE 1993 ATTAINMENT DEMONSTRATION PLAN AND NO REQUIREMENTS . . . . . 41 7.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION REQUIREMENTS AND ECONOMIC INCENTIVE PROGRAMS . 43 7. 1 Background . . . . . 43 7.2 CreditabilityinSiP’s . . . . . . . . . 45 7.3 Baseline Emissions in EIP’s . . . . . . . . . . . . 47 7.4 Quantification of Emissions . . . . . . . . . . . . 48 8.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION REQUIREMENTS AND TITLE V (OPERATING PERMITS) 51 8.1 satisfying si Principles with Operating Permits . 52 8.2 Areas Requiring Emissions Reductions Less Than 15 Percent . . . . . . . . 53 REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . 55 APPENDIX A . . . . . A—i iv ------- LIST OF TABLES Number Title Page 1. MAJOR SOURCE THRESHOLDS AND MINIMUM EMISSIONS OFFSET RATIO REQUIREMENTS FOR OZONE NONATTAINMENT AREA CLASSIFICATIONS . . . . . . . . . . . . . . . 12 2. MAJOR MODIFICATION THRESHOLDS FOR OZONE NONATTAINNENT AREACLASSIFICATIONS.................. 13 V ------- ACRONYMS AND ABBREVIATIONS Act Clean Air Act BACT Best Available Control Technology CAAA 1990 Clean Air Act Amendments CFR Code of Federal Regulations CO Carbon Monoxide CTG Control Techniques Document El? Economic Incentive Program EKMA Empirical Kinetic Modeling Approach EPA U.S. Environmental Protection Agency ETPS Emissions Trading Policy Statement FMVCP Federal Motor Vehicle Control Program FR Federal Register HAP Hazardous Air Pollutant HUD U.S. Department of Housing and Urban Development I/M Inspection and Maintenance MACT Maximum Achievable Control Technology MMBtu Million British Thermal Units NAAQS National Ambient Air Quality Standard NESHAP National Emission Standard for Hazardous Air Pollutants NO Nitrogen Oxides NSPS New Source Performance Standard NSR New Source Review PSD Prevention of Significant Deterioration psi pounds per square inch RACT Reasonably Available Control Technology RCRA Resource Conservation and Recovery Act RVP Reid Vapor Pressure SOCMI Synthetic Organic Chemicals Manufacturing Industry SIP State Implementation Plan $02 Sulfur Dioxide TCM Transportation Control Measures tpy tons per year UAN Urban Airshed Model WIT Vehicle Miles Travelled VOC Volatile Organic Compound vi ------- EXECUTIVE SUMMARY Section 182(b) (1) of the Clean Air Act. (Act) requires all ozone nonattainment areas classified as moderate and above to submit a State implementation plan (SIP) revision by November 15, 1993, which describes, in part, how the areas will achieve an actual volatile organic compound (VOC) emissions reduction of at least 15 percent during the first 6 years after enactment of the Clean Air Act Amendments of 1990 (CAAA) (i.e., up to November 15, 1996). In addition, the SIP revision must describe how any growth in emissions from 1990 through 1996 will be fully offset. The portion of the SIP revision that illustrates the plan for the achievement of these emissions reductions is subsequently defined in this document as the “rate-of—progress plan.” It is important to note that section 182(b) (1) also requires the SIP for moderate areas to provide for reductions in VOC and nitrogen oxides (NO 1 ) emissions “as necessary to attain the national primary ambient air quality standard for ozone” by November 15, 1996. This requirement can be met through the use of EPA-approved modeling techniques and the adoption of any additional control measures beyond those needed to meet the 15 percent emissions reduction requirements. States with intrastate moderate ozone nonattairiment areas will generally be required to submit attainment demonstrations with their SIP revisions due by November 15, 1993 (such areas choosing to use the Urban Airshed Model (UAM) to.prepare their attainment demonstrations will be allowed to submit attainment demonstrations by November 15, 1994). States choosing to run UAN for their intrastate moderate areas must submit by November 15, 1993, their rate—of-progress plan and a committal SIP addressing the attainment demonstration. The committal SIP subject to a section 110(k) (4) approval would include, at a minimum, evidence that grid modeling is well under-way and a commitment, with schedule, to complete the modeling and submit it as a SIP revision by November 1994. The completed attainment demonstration would include any additional controls needed for attainment. The purpose of this document is to provide guidance for determining the creditability of emissions reductions toward meeting the 15 percent VOC emissions reduction requirements of Section 182(b) of the Act. This document provides technical guidance to support the policy presented in the “General Preamble: Implementation of Title I of the CAAA of 1990” (57 FR 13498). The document discusses the creditability of emissions reductions associated with programs implemented both prior to enactment of the CAAA, and programs that will be implemented to comply with the requirements of the CAAA. The programs addressed in. this document include the following: 1 ------- • New source review (NSR). • Hazardous air pollutant (HAP) standards. • New source performance standards (NSPS). • Controls required for mobile sources. • Controls required for stationary sources of oxides of nitrogen (NOr). • Economic incentive programs (EIP’s). • Operating permit programs. Sections 182(b) (1) (C) and 182(b) (1) (D) of the Act specify in general terms which emissions reductions are creditable toward the 15 percent VOC emissions reduction requirements and which reductions are not. Section 182(b) (1) (D) does not specifically limit the creditability of emissions reductions associated with - the programs discussed in this guidance document toward the 15 percent requirements; therefore, emissions reductions associated with the programs outlined above are generally creditable. However, some additional limitations do exist, to the extent that emissions reductions associated with the programs outlined above are not quantifiable, real, enforceable, replicable, accountable, and occur by November 15, 1996. There is uncertainty inherent in projecting new source growth, and in determining the amount of the emissions reductions from offsets that will be needed to offset minor source grow€h.. Therefore, only additional, actual, permanent, and enforceable emissions reductions resulting after 1990 from an offset that are not used to offset minor source growth will be creditable in the milestone compliance demonstration due in February 1997 for serious and above areas. States must use caution to avoid the double-counting of emissions reductions and must be cárefulto distinguish between credits toward the 15 percent VOC emissions reduction requirements, NSR offset credits and netting credits, and credits used for emissions trading in an EIP. Banked emissions reduction credits can be used to offset new source growth, but preenactment banked emissions reductions are not creditable toward the 15 percent VOC emissions reduction requirements. Other reductions that are not creditable toward the 15 percent VOC emissions reduction requirements include those used to create growth allowances in U.S. Department of Housing and Urban Development (HUD) zones. Reductions in VOC emissions associated with requirements for the control of HAP’s under section 112 of the Act are generally creditable toward the 15 percent VOC emissions reduction requirements. (Note that not all HAP’s are VOC’s. See p. A-9 for the definition of VOC.) Most section 112 VOC reductions credited toward the 15 percent VOC emissions reduction requirements will occur through the promulgation of maximum achievable control technology (MACT) standards, national emission 2 ------- standards for hazardous air pollutants (NESHAP), and the use of the early reductions program. Volatile organic compound reductions from section 112(g) modifications are creditable toward the 15 percent VOC emissions reduction requirements if a source demonstrates that an increase in emissions of one pollutant has been offset by a greater decrease in the same or an equivalent pollutant. However, a State must adequately account for the simultaneous growth associated with modified sources that net out of the section 112(g) requirements because their net emissions do not exceed de minimis emissions levels. The section 112(f) standards (residual risk standards to protect public health) are not likely to be promulgated in time for credit toward the 15 percent requirements. Reductions in VOC emissions achieved by stationa y sources that become subject to a section 111 NSPS after 1990 are creditable toward the 15 percent VOC emissions reduction requirements. States must use caution to avoid the double- counting of emissions reductions associated with an NSPS and those achieved through the emissions offset or netting provisions of the NSR rules. Additionally, existing sources that are modified to become subject to an NSPS may already besubject to reasonably available control technology (RACT) rules. --Only the incremental emissions reduction between the allowable emissions specified by the two requirements is creditable toward the 15 percent VOC emissions reduction requirements. States may credit most emissions reductions gained through mobile source programs toward the 15 percent VOC emissions reduction requirements. Exceptions include those reductions achieved under Federal motor vehicle control program- (FMVCP) tailpipe or evaporative regulations promulgated before 1990 and specified Federal Reid vapor-pressure (RVP) limits for gasoline (55 FR 23666, June 11, 1990). Additionally, improvements - resulting from corrections to deficient inspection and maintenance (I/M) programs are not creditable. Reductions obtained through implementation of other mobile source programs are generally creditable, as long as the reductions are quantifiable, real, enforceable, replicable, accountable, and occur by November 15, 1996 • States may also secure- credit f or RVP limits that are more stringent than the minimum Federal requirements. States will be able to quantify the future emissions reductions resulting from the implementation of most mobile source control measures through the use of the !4OBILE5a model. Nitrogen oxide emissions reductions occurring in the 1990— 1996 period may not be substituted for VOC emissions reductions for the 15 percent rate-of-progress requirements. However, s tion 182(b) (1) (A) states that NO emissions reductions can be .sed in combination with VOC emissions reductions to achieve 3 ------- attainment of the ozone national ambient air quality standard (NAAQS). Additionally, NO 1 emissions reductions occurring in the 1990-1996 period, in excess of growth, may be considered as substitutes for VOC emissions reductions for the post—1996 rate— of-progress requirements. Consequently, States should present their NO inventories in their rate-of—progress plan in addition to their VOC inventories. The EPA expects to issue guidance in the fall of 1993 covering substitution of NO for VOC emissions reductions for the post-1996 period. On February 23, 1993, EPA published a proposed rulemaking discussing requirements for EIP’s (58 FR 11110). This proposal also represents EPA’S interim policy on EIP’s. The proposed rulemaking anticipates that certain EIP strategies will be based on a quantifiable emissions limit while others will depend strictly on marketplace forces to reduce emissions. Thus, the amount of emissions reductions associated with an EIP program that will, be creditable toward the 15 percent rate—of—progress plan requirements will vary depending on the nonattainment area and the form of the EIP proposed. The EPA is presently proposing the introduction of two factors, rule compliance and program uncertainty, to address the uncertainty of quantifying creditable emissions reductions from EIP’s. The rule compliance factor is intended to address the issue of less-than-complete compliance and the program uncertainty factor is intended to address the - inherent uncertainty in future market response. Additionally, EPA is considering the requirement of program audit provisions to track actual emissions reductions from an EIP; if a State employs a market-response EIP, the program audit provisions would include reconciliation procedures to compare the projected emissions reductions credited in the SIP .with the actual emissions reductions. Furthermore, the proposed EIP regulation would require contingency measures to make up for any shortfall- identified between the actual and the projected emissions reductions for any market-response EIP. States must take care to distinguish between the rate-of-progress base year inventory and the EIP baseline inventory, and must carefully consider the consistency in emissions quantification procedures used in the rate-of-progress plan and the EIP. States should consult with the appropriate EPA Regional Office in determining the amount of credit from an EIP. The resulting emissions reductions must occur by November 15, 1996. A large portion of the rate-of—progress plans——and the attainment plan--will be implemented through the Title V operating permit program. A State may rely on its regulatory programs alone in its rate-of—progress plan to demonstrate that sufficient emissions reductions will occur to meet the 15 percent emissions reductions requirement. 4 ------- The EPA recognizes that some of the new Control Techniques Documents(CTG) documents and Federal regulations f or other programs (e.g., NSPS, NESHAP’s, and MACT) may not be promulgated in time to be used by States to develop and adopt control measures for their 15 percent rate-of-progress plans. The EPA is currently investigating whether and under what circumstances a State may be able to take credit for unadopted control measures in their 15 percent rate-of—progress plans. Further guidance from EPA may be forthcoming. 5 ------- 6 ------- 1.0 INTRODUCTION Section 182(b) (1) of the Act requires all ozone nonattainment areas classified as moderate and above to submit a SIP revision by November 15, 1993, which describes, in part, how the areas will achieve an actual VOC emissions reduction of at least 15 percent during the first 6 years after enactment of the CAAA (i.e., up to November 15, 1996). In addition, the SIP must describe how any growth in emissions from 1990 through 1996 will be fully offset. Emissions and emissions reductions shall be calculated on a typical weekday basis for the “peak” 3-month ozone period (generally June through August). The 15 percent VOC emissions reduction, net of growth, required by November 15, 1996 is defined within this document as “rate of progress.” Furthermore, the portion of the SIP revision that illustrates the plan for the achievement of the emissions reductions is subsequently defined in this document as the “rate—of—progress plan.” - It is important to note that section 182(b) (1) also requires the SIP for moderate areas to provide for reductions in VOC and NO emissions “as necessary to attain the national primary ambient air quality standard for ozone” by November 15, 1996. This requirement can be met through the use of EPA-approved modeling techniques. and the adoption of any additional control measures beyond those needed to meet the 15 percent emissions reduction requirements. States with intrastate moderate ozone nonattaininent areas will generally be required to submit attainment demonstrations with their SIP revisions due by November 15, 1993 (such -areas choosing to use UAI4.to prepare their attainment demonstrations will be allowed to submit ‘The U.S. Environmental Protection Agency (EPA) recognizes that the Act terms, for both the 15 percent VOC emissions reduction requirement of section 182(b) (1) and the section 182(c) 2) (B) requirement for 3 percent per year VOC emissions reductions averaged over each consecutive 3—year period from November 15, 1996 until the attainment date, as reasonable further progress (RFP) requirements. However, because-the Act requires SIP revisions for the 15 percent reduction to be submitted in 1993 and SIP revisions for the 3 percent per year reductions to be subinitted in 1994, EPA believes that it would be clearer, within the context of both the 15 percent rate-of-progress plan and post-1996 rate-of-progress plan guidance documents that EPA -is producing, to create distinct labels for these two seemingly similar re uctions. The 1994 SIP revisions describing the requiremen- . for 3 percent VOC emissions reductions averaged over each consecutive 3-year period from November 15, 1996 until the attainment date, constitute the “post-1996 rate-of-progress plan.” 7 ------- attainment demonstrations by November 15, 1994). States choosing to run UAN for their intrastate moderate areas must submit by November 15, 1993, their rate-of—progress plan and a committal SIP addressing the attainment demonstration. The committal SIP subject to a section 110(k) (4) approval would include, at a minimum, evidence that grid modeling is well under way and a commitment, with schedule, to complete the modeling and submit it as a SIP revision by November 1994. The completed attainment demonstration would include any additional controls needed for attainment. Section 182 (C) (2) requires all ozone nonattainment areas classified as serious and above to submit a SIP revision by November 15, 1994 which describes, in part, how each area will achieve additional VOC emissions reductions of 3 percent per year averaged over each consecutive 3—year period from November 15, 1996 until the area’s attainment date. It is important to note that section 182(c) (2) (C) allows for actual NO 1 emissions reductions (exceeding growth) that occur after the base year of 1990 to be used to meet post-1996 emissions reduction requirements for ozone nonattainment areas classified as serious and above, provided that such NO 1 reductions meet the criteria outlined in forthcoming substitution guidance. The portion of the SIP revision (due in 1994) that illustrates the plan for the achievement of these post-1996 reductions in VOC or NO 1 is subsequently defined in.this document as the “post—1996 rate—of— progress plan.” This plan must also-contain an attainment demonstration based on photochemical grid modeling. The EPA plans to distribute a separate guidance document on the development of the post-1996 rate—of—progress plan in 1993. Demonstrating achievement of the 15 percent VOC emissions reductions by November 15, 1996, and then subsequently demonstrating achievement of the 3 percent per year VOC emissions reductions averaged over each consecutive 3—year period from November 15, 1996 until the attainment date, are termed milestone demonstrations. Achievement of the milestones must be demonstrated within 90 days of the milestone date (e.g., the 15 percent VOC emissions reductions must be demonstrated by February 13, 1997). The EPA is currently developing a rule which will describe the information and .analysis required for the milestone compliance demonstrations. The rule is scheduled for promulgation in the summer of 1994. The rule will also address summary data needs, detailed reporting requirements, and consequences of submitting an inadequate demonstration (in terms of documentation) as well as consequences of failure to demonstrate the 15 percent VOC emissions reduction requirements, net of growth. - Section, 182(a) (3) (A) requires the States to submit periodic inventories starting 3 years after submission of the base year 8 ------- inventory required by section 182(a) (1), and every 3 years thereafter until the area is redesignated to attainment. The EPA recommends that States synchronize their schedules for developing the periodic inventories so that the second periodic inventory (which would be due no later than November 15, 1998) is submitted by February 13, 1997 and addresses emissions in 1996. By accelerating preparation and submittal of the 1996 periodic inventory, the milestone demonstration that is due for serious and above areas by February 13, 1997 can be based on this periodic inventory. If similarly accelerated, future periodic inventories would then also coincide with subsequent milestone demonstrations. The periodic inventory is to be based on actual emissions and will cover VOC, NOR, and carbon monoxide (CO) emissions sources. Like the base year inventory, the periodic inventory is to be determined using typical peak ozone season weekday emissions. 1.1 Purpose The purpose of this document is to provide guidance for determining the creditability of emissions reductions toward meeting the 15 percent VOC emissions reduction requirements of Section 182(b) of the Act. This document provides technical guidance to support the policy presented in the “General Preamble: Implementation of Title I of the CAAA of 1990” (57 FR 13498). The document discusses the creditability of emissiofls reductions associated with programs implemented both prior to enactment of the CAAA, and programs that will be implemented to comply with the requirements of the CAAA. The programs addressed in this document include the following: - • New source review (NSR). • Hazardous air pollutant (HAP)standards. • New source performance standards (NSPS). • Controls required for mobile sources. • Controls required for stationary sources of oxides of nitrogen (NO). • Economic incentive programs (EIP’s). • Operating permit program. This document is intended to assist the States in preparing the rate-of-progress plans that will demonstrate how the area will achieve the 15 percent VOC emissions reduction requirements from November 1990 to November 1996. In order for a State to comply with the 15 percent requirements, it will need to demonstrate that it will achieve the necessary emissions reductions needed to meet its 1996 target level of emissions. There are three components that comprise the emissions reductions to meet the 1996 target level: 9 ------- • The 15 percent VOC emissions reduction calculated from the adjusted base year inventory. • The noncreditable emissions reductions (i.e., RVP limits specified in 55 FR 23666, pre—1990 FMVCP, and corrections to RACT rule and I/M programs). • The offset of 1990—1996 emissions growth. This document is not intended to directly address either rate—of-progress tracking or the final milestone compliance demonstration. Additional guidance to address tracking and the milestone compliance demonstration will be developed in the future. Furthermore, this guidance addresses many programs and procedures that are addressed more fully in other guidance documents. This guidance is not intended to supersede those guidance documents; rather, it is intended to pull together the relative material as it pertains to the development of the rate- of-progress plan. In addition, this document is not intended to be a policy statement; rather, it is intended to reiterate the regulations and policies set forth specifically for those programs described herein. Readers are referred to rulemakings and policy statements for details concerning the development of regulations and policies. 1.2 Creditability of Emissions Reductions Associated With RACT Rules and Rule Effectiveness Improvements Toward the 15 Percent Requirements The creditability of emissions reductions associated with RACT rules and rule effectiveness improvements are not discussed in this document because they have been previously discussed in two other documents concerning the 15 percent rate-of—progress plan requirements. The creditability of emissions reductions associated with RACT rule fix-ups and catch-ups and rule effectiveness improvements are discussed in the document entitled Guidance on the Ad-justed Base Year Emissions Inventory and the 1996 Taraet for the 15 Percent Rate-of—Progress Plans , EPA—452/R— 92-005, October 1992. The creditability of rule effectiveness improvements associated with non—CTG RACT rules, rule effectiveness improvements, and the quantification of emissions reductions from rule effectiveness improvements are discussed in the document entitled Guidance on Growth Factors. Prolections. and Control Strategies f or the 15 Percent Rate—of—Progress Plans , EPA-452/R-93-002, March 1993. This document also discusses the development status of new CTG documents. The EPA recognizes that some of the new CTG documents may not be promulgated in time to be used by States to develop new RACT rules for their rate—of— progress plans. The EPA is currently investigating whether and under what circumstances a State may be able to take credit for unadapted RACT rules in its 15 percent rate—of—progress plans. Further guidance may be forthcoming. 10 ------- 2.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION - REQUIREMENTS AND NEW SOURCE REVIEW PROGRAMS This section of the document describes the new or revised NSR nonattainment permit program requirements under Part D of the Act, and the creditability of emissions reductions associated with NSR permitting toward the 15 percent VOC emissions reduction requirements. States should be aware that EPA intends to issue revisions to the existing Part D regulations setting forth in more detail the new or revised requirements for an approvable NSR program. 2.1 Core Requirements of the Part D New Source Review Program The Act requires new major stationary sources and major modifications to stationary sources to obtain an air pollution permit before initiating construction. Permits for sources located in nonattainment areas are known as nonattainment area or Part D permits, while permits for sources located in attainment areas are known as prevention of significant deterioration (PSD) or Part C permits. The NSR program is the program under which these permit reviews are implemented. The CAAA contain several provisions that changed the Part D requirements of Title I of the Act. These provisions mandate lower emissions thresholds for the definition of a major source and establish more stringent offset ratios for new major sources located in ozone nonattainment areas (Table 1). Prior to the enactment of the CAAA, a new source was considered major if it emitted, or had the potential to emit, 100 tons per year (tpy) or more of VOC or NO However, the CAAA lowered the emissions thresholds for serious, severe, and extreme nonattainment areas to the potential to emit 50, 25, or 10 tpy or more of VOC or NOR, respectively. The amendments also lowered the emissions threshold for defining major new VOC sources in ozone transport regions. The emissions thresholds and minimum emissions offset requirements for major new sources in nonattainment areas and ozone transport regions are presented in Table 1. The CAAA also establish special and complex requirements for major modifications including new thresholds in serious, severe, and extreme ozone nonattainment areas and ozone transport regions. The requirements for major modifications in nonattaininent areas and ozone transport regions are presented in Table 2. The CAAA also establish new sanctions and provisions that retain existing construction bans in some cases. 11 ------- TABLE 1. MAJOR SOURCE THRESHOLDS AND MINIMUM EMISSIONS OFFSET RATIO REQUIREMENTS FOR OZONE NONATTAINNENT AREA CLASSIFICATIONS Nonattaininent Area VOC (tpy) 2 NO 1 (tpy) 2 Minimum Emissions Offset Ratio Required Extreme 10 10 1.5 to i Severe 25 25 1.3 to i Serious 50 50 1.2 to 1 Moderate 100 100 1.15 to 1 Moderate, in an ozone transport region 50 100 1.15 to 1 Marginal 100 100 1.1 to 1 Marginal, in an ozone transport region 50 100 1.15 to 1 All other nonattainment outside of an ozone transport region 4 areas, 100 100 - >1.0 to 1 All other nonattainment in an ozone transport areas, region 4 100 100 1.15 to 1 Attainment, in an ozone transport region 50 100 1.15 to 1 2 tpy = tons per year The minimum ratio is reduced to 1.2 if the applicable State implementation plan requires all major sources of VOC and NO 1 emissions to use best available control technology (BAçT). The other nonattainment areas are submarginal, transitional, and incomplete/no data. 12 ------- TABLE 2. MAJOR MODIFICATION THRESHOLDS FOR OZONE NONATTAINMENT AREA CLASSIFICATIONS Ozone Nonattainment Area VOC (tpy) 5 NO (tpy) 5 Extreme 0 0 Severe 256 256 Serious 256 256 Moderate 40 40 Moderate, in an ozone transport region 40 40 Marginal 40 40 Marginal, in an ozone transport region 40 40 All other nonattainment areas, outside of an ozone transport region 7 40 40 All other nonattainment areas, in an ozone transport region 7 40 40 Attainment, in an ozone transport region 40 40 ‘ tpy = tons per year 6 Net increase of 25 tons when aggregated with all other net increases in emissions from the source over any period of 5 consecutive calendar years, which includes the calendar year in which such increase occurred. The other nonattainment areas are submarginal, transitional, and incomplete/no data. 13 ------- The core requirements of the revised Part D NSR program are as follows: • Emissions offsets — ensures more than equivalent offsetting emissions reductions for proposed emissions - increases. • Lowest achievable emissions rate - ensures emissions are controlled to the greatest extent possible. • Statewide source compliance — ensures that an applicant is in compliance, or on a schedule toward compliance, with the Part D requirements at all of its sources owned or operated in the State. • Assurance of adequate plan implementation — ensures the applicable implementation plan is being adequately implemented before a permit is issued. • Analysis of alternatives — the evaluation of alternative locations, sizes, production processes, and environmental control techniques before a permit is issued. Of these core requirements, the emissions offsets requirement is the most relevant to the discussion in this guidance because it mandates emissions reductions that are greater in quantity than the proposed emissions increases. The creditability of these offsets toward the 15 percent VOC emissions reduction requirements is discussed along with the creditability of reductions mandated under other titles of the Act toward the NSR offsets. 2.2 Emissions Offsets Emissions offsets are the principal regulatory mechanism for accommodating major new source growth without jeopardizing the Act’s mandate for progress toward attainment of the ozone NAAQS. Many of the requirements for emissions offsets are already included in 40 Code of Federal Regulations (CFR) 51.165 and the Emissions Trading Policy Statement (ETPS). (See reference 1.) States should be aware that most of the offset requirements existed before the CAAA and that 40 CFR 51.165 and ETPS requirements must still be met. States should also be aware that the NSR Update Rulemaking and any policy changes to the ETPS will supersede guidance contained herein regarding NSR permitting. Therefore, NSR permitting information contained in this guidance is for background purposes only, and States should develop and coi ict their NSR permitting programs in accordance with the guidance and requirements contained in the forthcoming NSR regulations and the Title I General Preamble. (See reference 2.) 14 ------- Emissions Offset Requirements Major stationary sources seeking to satisfy the requirements of section 173(a) (1) (A) of the Act must obtain “sufficient offsetting emissions reductions...so as to represent reasonable further progress” as part of the requirements to obtain a Part D NSR permit. Section 182 of the Act prescribes specific minimum of fset ratios for VOC and NOL emissions from sources in ozone nonattainment areas. The minimum offset ratio requirements are presented in Table 1. In the case of severe and extreme areas, section 182 (C) (10) allows the minimum offset ratio to be reduced to a ratio of 1.2 to 1 if the applicable SIP requires all existing major sources in such nonattainment areas to use best available control technology (BACT) for the control qf VOC and N0 emissions. Certain criteria must be met for emissions reductions to be creditable toward the emissions offsets. These criteria are discussed in detail in the following sections of this document. Emissions reductions projected to occur from the offset requirements are not creditable toward the 15 percent rate—of— progress plan requirements due to the inherent uncertainty in projecting new source growth, and in determining the amount of the emissions reductions from offsets that will be needed to offset minor source growth. However, any additional, actual, permanent, and enforceable emissions reductions resulting after 1990 from an offset that is not used to offset minor source growth will be creditable in the milestone compliance demonstration due in February 1997 for serious and above areas. The following example illustrates the -creditability of emissions reductions in a milestone compliance demonstration. If a new source locating in a serious area proposes an allowable VOC emissions rate of 120 tpy, the source would be required to obtain offsets amounting to 144 tpy of actual emissions reductions. The entire 144 tpy actual emissions reduction will not be creditable toward the milestone compliance demonstration for the 15 percent VOC emissions reduction requirements because of the increase in allowable emissions from the new source. The allowable new source emissions increase is subtracted from the 144 tpy reductions obtained through the offset requirement to determine the amount of credit. Therefore, the State could credit only 24 tpy of reductions toward the 15 percent VOC emissions reduction requirements in the milestone compliance demonstration. Creditability of Emissions Reductions New section 173(c) (2) of the Act prevents emissions reductions otherwise required by the Act from being credited toward satisfying the Part D emissions offset requirement. This stipulation should not be confused with mandated emissions 15 ------- reductions that are creditable toward the 15 percent VOC emissions reduction requirements. For example, RACT “catch—up t ’ voc reductions under section 182(b) (2) (B) and (C) are not creditable toward emissions offset requirements, but are creditable toward the 15 percent VOC emissions reduction requirements. Likewise, VOC emissions reductions required under section 112 of the Act, are not creditable toward emissions offsets but may be creditable toward the 15 percent VOC emissions reduction requirements. For example, proposed new or modified major sources seeking emissions offsets may not use emissions reductions required by sections 112(d), 112(h), and 112(j) of the Act. Similarly, an early reductions program that meets the minimum specifications as described in section 112(i) (5) of the Act are not creditable toward emissions offsets. However, emissions reductions which are excess and incidental to the emissions reductions associated with the requirements of the Act are creditable toward emissions offsets as long as the requirements of section 173(c) (1) are met. For example, any emissions reductions in excess of those required by section 112 regulations are creditable toward emissions offsets. In the case of early reductions, any emissions reductions in excess of 90 percent (for VOC) may be considered surplus and, therefore, creditable if all other applicable requirements are met. Additionally, incidental emissions reductions are also creditable toward emissions offsets. For example, any reductions in nonhazardous VOC emissions that result from the !4ACT standards under section 112(d) (1) are creditable (i.e., if not otherwise required by the SIP). Incidental emissions reductions also include any reductions pursuant to a State requirement that is more stringent than the requirements of the Act. Creditability of section 112 reductions toward the 15 percent VOC emissions reduction requirements is discussed in the next section of this document. States must use caution to avoid double-counting of reductions toward the offset requirements (i.e., granting credit for the same emissions reduction twice). For example, an emissions reduction already credited toward the 15 percent VOC emissions reduction requirements in the State’s SIP, regardless of how the reduction was -actually obtained, cannot be used for offsetting purposes. States must keep careful records to avoid double-counting of reductions toward the 15 percent VOC emissions reduction requirements. P or example, excess emissions reductions resulting from the section 112(i) (5) early reductions program are potentially creditable toward the NSR emissions offsets. A source that reduces the emissions of a hazardous VOC from 10 tpy to 0.5 tpy would qualify for a section 112 early reduction exemption because emissions would be reduced by 95 percent. Because the total reduction exceeds the 90 percent reduction required by section 112(i) (5), 5 percent of the total reduction (0.5 tpy) would be available for emissions offset credit. The 16 ------- State in this case must be careful not to credit the entire 9.5 tpy early reduction toward the 15 percent VOC emissions reduction requirements and then credit the 0.5 tpy emissions offset toward the 15 percent VOC emissions reduction requirements. This would, in effect, produce a 10 tpy reduction on paper when only a 9.5 tpy reduction actually occurred. Only the actual reduction of 9.5 tpy could be credited toward the 15 percent VOC emissions reduction requirements (or alternatively, 9.0 tpy could be credited toward the 15 percent VOC emissions reduction, with 0.5 tpy credited toward the emissions offset requirements). Creditability of Banked Emissions Reduction Credits The use of preenactment banked emissions for-offsetting must be treated as growth in the 15 percent rate-of-progress plan. States may use the preenactinent banked emissions reduction credits for offsetting purposes as long as the credits meet all other offset creditability criteria. For VOC and NO offsets, such reductions must be used in accordance with the offset requirements established for the different ozone nonattaininent area classifications. Existing EPA policy (40 CFR 51. 165(a) (3) (ii) (C) (1)] prohibits the use of certain preenactment banked emissions credits in the absence of’an EPA—approved attainment plan. - The prohibitions apply to reductions achieved by shutting down existing sources or permanently curtailing production or.operating hours. Preenactment banked emissions reductions may be used to offset new source- growth, but these banked emissions are not creditable toward the 15 percent VOC emissions reduction requirements. For example, if aState chooses to use banked VOC emissions reductions to offset new source growth -of -200 tpy in a serious nonattainment area, it must obtain offsetting emissions of 240 tpy from its bank to meet the offset requirement of 1.2 to 1. Although the bank has been reduced by 240 tpy, the additional emissions resulting from the new source are 200 tpy. To ensure that the nonattainment area will meet the 15 percent VOC emissions reduction requirements, this 200 tpy emissions increase must be compensated for by reductions from existing sources. Minor Source Growth A State must demonstrate in its 15 percent rate-of—progress plan that it has achieved the emissions reductions needed to meet its target level of emissions for each milestone date. Therefore, a State will need to implement control measures that will offset new source growth. New source growth not only results from new or modified major stationary sources, but also from minor sources. This minor source growth must also be taken 17 ------- into account to ensure that the 15 percent rate—of—progress requirements are achieved. Emissions increases from minor sources must be offset by emissions reductions at existing sources. However, EPA has not yet resolved whether the State or the source should accept the burden of compensating for minor source growth. Readers are encouraged to review the final NSR regulations, when published, for guidance regarding minor source growth. GeopraDhic Location of Offsets Section 173(c) (1) of the Act specifies that a proposed major new or modified source must generally obtain emissions offsets from the source itself or from other existing sources in the same nonattainment area. However, sources are allowed to obtain offsets from other nonattainment areas if two criteria are satisfied. First, the other nonattainment area must have an equal or higher nonattainment classification than the nonattainment area in which a proposed source is to be constructed or modified. This criterion is only met in cases where the other nonattainment area has an equal or higher nonattainment classification for the same pollutant. For example, a major new source of VOC or NO proposing to locate in a serious ozone nonattainment area could obtain offsets in another ozone nonattainment area ‘classified as serious, severe, or extreme. Second, emissions from the other nonattainment area must contribute to a violation of the NAAQS in the nonattainment area in which a proposed source would construct or be modified. The permitting authority should acknowledge and verify any demonstration made to meet the second criteria. In cases where offsets are .obtained in a -nonattainment area other than the area where ar proposed major source would be constructed or, modified, a State may credit the offset emissions reductions toward the 15 percent. VOC emissions reduction requirements for the nonattainment area in which the reductions occurred. However, the emissions increase associated with the proposed major source must be treated as growth in the nonattainment .area in which the increase occurred, and must be controlled to meet the 15 percent VOC emissions reduction requirements. For example, if a new source proposes allowable emissions of 120 tpy in serious nonattaimunent area A and proposes actual emissions offsets of 144 tpy in serious nonattainment area B, the State can credit a reduction of 144 tpy toward the 15 percent VOC emissions reduction requirements for area B. The State must then debit the actual emissions increase of 120 tpy from the proposed new source against the 15 percent VOC emissions reduction requirements for area A.. 18 ------- Timing of Offsets New section 173(c) (1) of the Act also specifies that any offsets obtained by a proposed major new or modified source in conjunction with the issuance of a permit must be in effect and enforceable by the time the proposed source commences operation. This new condition clarifies an existing requirement under section 173(a) that simply stipulates offsets must be “legally binding” before a permit may be issued. The new condition emphasizes that the obtained offsets must be federally enforceable before the permit can be issued to the proposed source. The offsets are generally made federally enforceable through a permit condition made by the permitting authority to the permit for the source(s) where the offsets are to be obtained. States should be aware that problems may exist in making off-site offsets federally enforceable. Additionally, States must also ensure that the required emissions reductions actually occur no later than the date on which the proposed source would commence operation. These conditions must be met before States can claim offset credits. These conditions must also be met if emissions reductions associated with an offset are to be creditable toward the 15 percent emissions reduction requirements in a milestone compliance demonstration. Offset and Rate-of-Progress Baselines Changes in section 173(a) (1) support current EPA requirements that the calculation of the emissions baseline for offset credits be consistent with the calculation of the emissions baseline for the rate-of-progress plan. The EPA’S current policy concerning the baseline for emissions offsets provides that the offset baseline is the allowable emissions limit under the applicable SIP in effect at the time the proposed source files its permit application. However, the offset baseline is based on actual emissions if the State’s rate-of— progress plan and attainment demonstration are based on actual emissions,, or if the SIP does not contain an allowable eii issions limitation for the proposed source or source category. States that based their previous rate-of-progress plan and attainment demonstration on actual emissions should comply with the new offset provisions with little difficulty. Most States historically used yearly assessments of net actual emissions reductions to track rate—of-progress emissions reductions because actual emissions reductions correlate better with improvements in ambient air quality than allowable emissions reductions. States that based their plans on allowable emissions can still obtain o f set credits f or reductions in allowable emissions as necessary to conform with the requirements of section 173(a) (1). However, such offset credits will be deemed inadequate if, by definition, a. real reduction. in actual emissions does not occur at the offsetti!ng source that equals or exceeds the amount of offset - 19 ------- provided to the proposed source. Furthermore, States should realize that if these offsets do not correspond to real emissions reductions, then States will not be likely to achieve the necessary emissions reductions for milestone compliance. 20 ------- 2.3 Creditable Emissions Reductions for Netting Except for the additions of the provisions of sections 182(c) (6)-(8) to Title I of the Act, the CAAA generally do not affect EPA’S current procedures for netting emissions decreases and increases. Netting should still be determined in a manner consistent with EPA’S current NSR rules (40 CFR 51.165) and the ETPS for the purpose of determining whether a proposed source or modification is subject to the NSR requirements. Netting preenactment reductions with post-enactment emissions increases can still be conducted to the extent allowed under State rules. However, because preenacthent emissions reductions represent emissions that are not included in the 1990 base year inventory, States must consider such post—enactment increases as growth even though, for NSR applicability purposes, the source’s net emissions change is de minimis (note, if netting includes post— enactment decreases, then growth equals post—enactment increases minus post-enactment decreases). States should be aware that post-enactment net growth from minor modifications to major sources could significantly affect the rate-of—progress plan and attainment demonstration. As discussed previously with regard to minor source growth, EPA has yet to resolve who should accept the burden of compensating for such growth. States must use caution to avoid double-counting of reductions toward the netting requirements. Mi emissions reduction -is creditable for netting purposes only if the relevant reviewing authority has not relied on the reduction in issuing a NSR permit for the source, and the permit is still in effect when the increase in actual emissions from the proposed major modification occurs. (See reference 3.) For example, an emissions reduction obtained through an offset at a modified source cannot also be used for netting purposes. :Additionally, States must keep careful records to- avoid double—counting of reductions toward the 15 percent VOC emissions reduction requirements. For example, all reductions resulting from the section 112 early reductions program are also potentially creditable toward the NSR netting requirements. A source that reduces the actual emissions of a hazardous VOC from 10 tpy to 0.5 tpy would qualify for a section 112 early reduction exemption because emissions would be reduced by 95 percent. Because the early reduction is creditable for nett’ing purposes, the 9.5 tpy reduction would be available for either netting credit or as a credit against the 15 percent VOC emissions reduction requirements. However, the State in this case must be careful not to credit the 9.5 tpy section 112 early reduction toward the 15 percent Voc emissions reduction requirements and also allow a 9.5 tpy netting credit. This would, in effect, produce a 19 tpy reduction on paper when only a 9.5 tpy reduction actually occurred. 21 ------- Emissions reductions creditable to the 15 percent VOC emissions reduction requirements are not necessarily creditable for netting purposes, or vice-versa. For example, an of fset previously obtained by a modifying source may be creditable toward the 15 percent VOC emissions reduction requirements, but would not be creditable for netting purposes. However, the restrictions regarding the creditability of reductions for netting purposes are somewhat more lenient than those for offsets. For example, early reductions under section 112 (i) (5) may be creditable for netting purposes, whereas such reductions could not be used for offsetting purposes. 2.4 Growth Allowances The CAAA sharply limit the opportunities for States to set up new growth allowances in nonattainment areas and voids certain existing growth allowances. Sections 172(c) (4) and 173(a) (1) (B) of the Act limit new growth allowances to only those portions of a nonattaininent area that have been formally targeted for economic growth by the Administrator, in consultation with the Secretary of HUD. Emissions reductions used to create growth allowances in a HUD zone -are not creditable toward the 15 percent VOC emissions reduction requirements because the reductions must be surplus, enforceable, permanent, and quantifiable to be creditable toward the 15 percent VOC emissions reduction requirements. Emissions reductions obtained to create growth allowances are not surplus or permanent, since the reductions may be used to offset future-growth. In situations where the emissions reductions exceed the enforceable growth allowances in absolute quantity, the surplus -reductions can be credited toward the 15 percent VOC emissions reduction -requirements. New section 173 (b) of the Act invalidates, by Loperation of law, any existing growth--allowances in• any z onattairnnent area that either (1) received -a notice thatthe SIP was substantially inadequate under section 110(a) (2) (H) (ii) of the Act, or (2) receives a notice of inadequacy under new section 110(k) (1) of the Act. Where growth allowances are no longer valid or established, a proposed major-new or modified source in a nonattainment area is required to obtain emissions offsets on a case-by-case basis in order to obtain construction approval. (This was discussed previously in the emissions offsets section of this document.) 2.5 Construction Bans The CAAA repeal most of the federally imposed construction bans established in nonattainment areas prior to November 15, 1990, wider section 110(a) (2) (I) of the Act. However, new section 110(n) (3) of the Act also preserves certain preenactment construction bans imposed by virtue of a finding that the SIP for the area did not contain an adequate NSR permitting program as 22 ------- required by section 172(b) (6) of the Act. The retained construction bans remain in effect until the EPA determines that the SIP meets the new Part D permit requirements. Construction bans can, in effect, be imposed under section 173(a) (4) of the Act if the Administrator determines that the SIP for the Part D requirements is not being adequately implemented for the nonattainment area where new or modified sources are proposed. Section 173 (a) (4) stipulates that a permit cannot be issued to a new or modified major source in a nonattainment area if the SIP is not adequately implemented. Section 113(a) (5) of the Act provides that EPA may prohibit. the construction or modification of any specific major stationary source in any area, including an attainment area, and may take other enforcement actions against States as allowed by the Act. The EPA may apply section 113 (a) (5) whenever the Administrator finds, on the basis of available information, that a State is not acting in compliance with any requirement or prohibition of the Act (or approved SIP meeting the requirements of the Act) relating to construction of new sources or the modification of existing sources. Upon such a finding, the Administrator has the option of issuing an order that prohibits the construction or modification of any major stationary source in any area to which such requirement applies. Construction bans do not necessarily prevent minor source growth and de minimis increases at major sources. Therefore, States with nonattaininent areas.subject to construction bans must still track emissions increases and decreases for the milestone compliance demonstration. ., 2.6 Tribal Lands - . Section 301(d) of the Act grantsEPA the authority to treat Indian tribes in certain respects as States and specifically to allow Tribes to develop tribal implementation plans for achieving the NAAQS on tribal lands. Like SIP’s, these plans must include all implementation requirements. specified in the Act including complete NSR programs for constructing or modifying existing sources located on tribal lands. Further guidance on the provisions of the Act, including the 15 percent VOC emissions reduction requirements, for which Indian tribes are to be treated as States will be provided as part of a separate rulemaking required by section 301(d) (2) of the Act. 23 ------- 2.7 NO Requirements Section 182(f) of the Act specifies requirements for NO, that apply to major new and modified sources in ozone nonattainment areas and ozone transport regions. This section reflects a new directive that NO, reductions are required in ozone nonattainment areas, with certain exceptions. As a result, States are generally required to apply the same’ requirements to major stationary sources of NO, as are applied tà major stationary sources of VOC. However, the emissions threshold at which a stationary source becomes major does differ for NO, and VOC sources in marginal and moderate ozone transport regions (100 tpy NO, rather than 50 tpy VOC). Section 182(f) also specifies that the new NO, requirements shall not apply where any of the following tests is met: • In any area where the net air quality benefits are greater without NO, reductions from the applicable sources. • In an ozone transport region where additional NO, reductions would not produce net ozone benefits in the transport region. • In nonattainment areas not located within an ozone transport region where additional NO, reductions would not contribute to ozone attainment. If a State wishes to be exempt from some or all of the NO, requirements of the Act, the State must demonstrate to the satisfaction of EPA that at least one of the three exemptions apply. This demonstration must be based on photochemical modeling and must consider various control strategies with and without NO reductions. Further details on the NO, exemption are provided in a supplement to the General Preamble for implementation of the Title I NO, requirements. (See reference 4.) The EPA anticipates releasing guidance on the substitution of NO, for VOC emissions reductions in the fall of 1993 for the post—1996 rate-of—progress requirements. 24 ------- 3.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION - REQUIREMENTS AND PROVISIONS FOR CONTROLLING HAZARDOUS AIR POLLUTANTS This section of the document describes the creditability of emissions reductions associated with the new or revised HAP requirements of section 112 of the Act. The creditability of emissions reductions associated with Resource Conservation and Recovery Act (RCRA) air emissions standards and EPA’S 33/50 program are also discussed. The purpose of this section is to provide States with guidance on how emissions reductions that occur under programs to control HAP’s can be used to achieve a portion of the 15 percent VOC emissions reduction requirements. 3.1 National Emission Standards for Hazardous Air Pollutants Prior to enactment of the CAAA, EPA either promulgated or initiated development of NESHAP’s to control HAP’s under section 112 of the Act. The NESHAP’s apply to both new and existing sources that exceed the exemption criteria specified in an NESHAP regulation. Some of the HAP emissions for which EPA has promulgated NESHAP’s are also classified as VOC’s. (See p. A—9 for the definition of VOC.) The NESHAP’s which also control VOC emissions are as follows: • Vinyl chloride production plants. • Benzene emissions from equipment leaks. • Benzene emissions from benzene storage vessels. • Benzene emissions from coke by-product recovery plants. • Benzene emissions from benzene transfer operations. • Benzene waste operations. - - The EPA proposed a NESHAP for coke oven batteries in 1987. However, on December 4, 1992, EPA withdrew the proposal (57 FR 57403) and proposed a new NESHAP for coke oven batteries (57 FR 57534). The NESHAP is expected to be promulgated in the spring of 1993. In addition, EPA proposed an hazardous organic NESHAP (HON) on December 31, 1992 (57 FR 62608). The final rule is expected to be promulgated in late 1993 or early 1994. The proposed rule would regulate the emissions of organic HAP’s, all of which are classified as VOC’s, from synthetic organic chemicals manufacturing industry (SOCMI) processes and from equipment leaks in non-SOCMI processes. The EPA is also preparing an NESHAP to control HAP’s from ship building and ship repair operations. The NESHAP is planned for promulgation in 1994. Reductions in VOC emissions associated with sources that were in compliance with an NESHAP prior to enactment of the CAAA are not creditable toward the 15 percent VOC emissions reduction requirements. Reductions in VOC emissions associated with existing sources which have complied with an NESHAP promulgated 25 ------- after November 15, 1990 and before the deadline for submittal of the rate-of-progress plans (i.e., November 15, 1993), are creditable. However, care must be taken to ensure that emissions reductions associated with an NESHAP are not double counted. For example, sources located in ozone nonattainment areas that become subject to an NES}IAP after November 15, 1990 may also be subject to a RACT rule in existence prior to November 15, 1990. For these cases, only the incremental emissions reduction between the allowable emissions required by the NESHAP and RACT rule is the emissions reduction creditable toward the 15 percent VOC emissions reduction requirements. The EPA recognizes that some of the new NESHAP’s may not be: promulgated in time to be used by States for their 15 percent rate-of—progress plans. The EPA is currently investigating - whether and under what circumstances a State may be able to take credit for unadopted NESHAP’s in its 15 percent rate—of-progress plans. Further guidance may be forthcoming. The CAAA revised section 112 of the Act which changed procedures for developing standards for controlling HAP’S. The new programs for controlling HAP’s under section 112 are discussed in sections 3.2 through 3.5 of this document. 3.2 Maximum Achievable Control Technology Standards Section 112 (d) (1) of the amended Act requires the promulgation of regulations establishing emissions standards for categories and subcategories of major sources and area sources of 189 HAP’s. The emissions standard for a new or existing source in a particular category or subcategory must be based on the maximum degree of reduction that the Administrator determines is achievable through the application of MACP. Maximum achievable - control technologies include, but are not limited to: - • Process changes, materials substitution, or other modifications. • Enclosed systems or processes. • Collection, capture, or treatment systems. • Design, equipment, work practice, or operational standards. • Combinations of the above. The determination of MACT considers the cost of achieving such emissions reductions arid any non-air quality health and environmental impacts and energy requirements. Section 112 (d) (3) states that MACP standards for new sources must not be less stringent than the control achieved by the best controlled 26 ------- similar source. The MACT standards for an existing source cannot - be less stringent than the achievable emissions limitation of the top 12 percent of existing sources, except in cases where the source achieves the lowest achievable emissions rate (as defined under section 171 of the Act) applicable to the source category for those source categories with more than 30 sources. For source categories containing less than 30 sources, MACT standards must be no less stringent than the emissions limitation achieved by the best performing 5 sources. Where achievable, MACT may include the prohibition on the emissions of a HAP.. The emissions standards, or MACT standards, must be promulgated no later than the dates outlined in sections 112(c) and 112(e) of the Act. The schedule mandated in section 112(e) (1) is as follows: • November 15, 1992: emissions standards..for not less than 40 categories and subcategories (not counting coke oven batteries) shall be promulgated. • December 31, 1992: emissions standards for coke oven batteries shall be promulgated. • November 15, 1994: emissions standards for 25 per centum of the listed source categories and subcategories shall be promulgated. • November 15, 1997: emissions standards for an additional 25 per centum of the listed source categories and subcategories shall be promulgated. • November 15, 2000: emissions standards for all source categories and subcategories shall be promulgated. As required under section 112(c), additional schedules are provided for area sources, previously regulated source categories, additional source categories not listed under sections 112(c) (1) or 112(c) (3), and specific HAP’s. By November 15, 2000, emissions standards must be promulgated for sufficient categories and . subcategories - of ‘area sources to ensure that area sources representing 90 percent of the area source emissions of the 30 HAP’s that present the greatest threat to public health in the largest number of urban -areas are subject to regulation. Emissions standards for additional source categories identified on or before November 15, 1998, must be promulgated by November 15, 2000. Emissions standards for additional source categories identified after November 15, 1998, must be promulgated within 2 years of identification of the additional source category. By November 15, 2000, emissions standards must be promulgated for categories and subcategories of sources that emit alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychiorinated biphenyls, 2,3,7, 8-tetrachlorodibenzofurans, and 27 ------- 2,3,7, 8—tetrachlorodibenzo—p-dioxin, assuring that sources accounting for not less than 90 per centum of the aggregate emissions of each such pollutant are subject to such standards. Many of the 189 HAP’s listed under section 112(b) (1) are VOC’s. Any emissions reduction of a hazardous VOC resulting from the application of a MACP standard is creditable toward the 15 percent VOC emissions reduction requirements for ozone nonattainment areas. Any incidental emissions reduction of a nonhazardous VOC resulting from the application of a MACP standard is also creditable toward the 15 percent VOC emissions reduction requirements. Crediting of MACT emissions reductions toward the 15 percent VOC emissions reduction requirements should not be confused with crediting such reductions toward NSR emissions offsets. Discussion regarding the creditability of MACP reductions toward NSR emissions offsets is discussed earlier in this document. It, is important to note that some sources will be subject to both MACT and RACT rules. Because only the more stringent of the two standards will apply in these cases, States should be aware that double-counting of the VOC reductions from these two programs must not occur. The EPA recognizes that some of the new MACP standards may not be promulgated in time to be used by States for their 15 percent rate-of-progress plans. The EPA is currently investigating whether and under what circumstances a State may be able to take credit for unadopted MACT standards in its 15 percent rate—of-progress plans. Further guidance may be forthcoming. 3.3 Early Reduction Program As a temporary alternative to complying with an applicable MACP standard, an existing source may elect to comply with the early reduction requirements of section 112(i)(5). By electing to achieve early reductions, an existing source may, under certain conditions, meet an alternative emissions limit in lieu of meeting an otherwise applicable MACT standard. The alternative emissions limit expires 6 years after the otherwise applicable MACT standard compliance date, at which time the source must comply with the ?4ACT requirement. Except as follows, to obtain the MACP compliance extension the reduction must be achieved before the othexwise applicable MACP standard is first proposed. A source may also obtain an extension if it makes an enforceable commitment to achieve such reduction before the proposal of the MACT standard, and it achieves the early reduction after the proposal of the applicable MACP standard, but before January 1, 1994. The early reduction program requires a source to achieve HAP emissions reductions of at least 90 percent for VOC. The emissions reduction must be determined from a comparison of the 28 ------- actual post-control emissions with the actual and verifiable emissions in a base year not earlier than 1987. A base year of 1985 or 1986 can be used by a source if its emissions data are based on information received by the Administrator prior to November 15, 1990, pursuant to an information request issued under section 114 of the Act. Hazardous VOC emissions reductions under the early reduction program are creditable toward the 15 percent VOC emissions reduction requirements if the reductions occur after the 1990 base year. Because a source can credit reductions prior to 1990 under the early reduction program, the entire 90 percent early reduction may not be creditable toward the 15 percent VOC emissions reduction requirements. States should be aware that EPA is developing a policy regarding potential conflicts between the early reduction program and the RACT requirements. (See reference 5.) The interaction between the early reduction program and RACT requirements causes concern because the prospect of applying RACT requirements to sources that already made early reductions would effectively limit the attractiveness of, and therefore participation in, the early reduction program. Additionally, States should also be aware that early reductions must be taken prior to November 15, 1996, to be credited toward the 15 percent VOC emissions reduction requirements. Guidance regarding the creditability of• section 112 early reductions toward the post-1996 reduction requirements is presently under development within EPA. Readers interested in further details regarding the section 112 early reduction program are referred to the final regulations published in the Federal Register . (See reference 6.) 3.4 Construction, Reconstruction, and Modifications of Major Sources Section 112(g) (2) of the Act stipulates that (after the effective date of a permit program under Title V in’ any State) the construction, reconstruction, or modification of a major source cannot commence unless the permitting authority under the established permit program determines that MACT will be achieved. Volatile organic compound emissions reductions achieved under section 112(g) (2) can be credited toward the 15 percent VOC emissions reduction requirements. Major sources proposing physical or operational changes resulting in HAP emissions increases that exceed a de minimis amount may be exempted under section 112 (g) (1) from being regarded as a modification if the emissions increase will be offset by an equal or greater emissions reduction of a more hazard’us pollutant. The offset must be an internal offset and should not be confused with NSR emissions offsets. It should be noted that the HAP’S that account for the increase and offset do 29 ------- not have to be VOC’s. For example, under Section 112(g) (1) (B), EPA may determine that mercury compound emissions are relatively more hazardous than styrene emissions. A hypothetical source proposing to increase emissions of styrene, which is both a HAP and a VOC, may propose to offset such an emissions increase with a reduction in the emissions of mercury compounds, which are HAP’s, but not VOC’S. A source proposing such an offset, while reducing HAP emissions, would actually produce an increase in total VOC emissions. Thus, States should be aware that offsets claimed under section 112(g) (1) will not necessarily result in a reduction in voc emissions. In contrast, a hypothetical source proposing to increase emissions of methyl chloroform, which is not a VOC, could propose to offset with a reduction in vinyl chloride emissions, a VOC. Another source may propose to offset an emissions increase in styrene with a reduction of vinyl chloride that exceeds the increase in styrene. Net VOC emissions reductions that are obtained through section 112(g) (1) offsets can be credited toward the 15 percent VOC emissions reduction requirements as long as such reductions are real, permanent, and enforceable. States should be aware that guidance regarding these offsets is presently being prepared by EPA. 3.5 Additional Emissions Standards Available under Section 112 of the Act Standard to Protect Public Health and the Environment Section 112(f) of the Act allows the Administrator to promulgate more stringent standards than established under section 112(d) for a source category or subcategory if such standard is required to provide an ample margin of safety to protect public health or to prevent an adverse environmental effect, Sections 112(f) (1) (A)—(D) of the Act describe the elements that EPA must include in investigating the need for more stringent standards. The Administrator is required to promulgate such standards within 8 years of the promulgation of the original MACP standard. However, no standards are anticipated under section 1.12(f) before November 15, 2000. Work Practice Standards and Other Reauirements Section 112(h) of the Act allows the Administrator to promulgate design, equipment, work practice, •or operational standards if the prescription or enforcement of an emissions standard is not feasible. To the extent that such standards are adopted and emissions reductions in VOC are required and quantifiable before November 15, 1996, such reductions are creditable toward the 15 percent VOC emissions reduction requirements. 30 ------- Equivalent Emissions Limitation by Permit In the event the Administrator fails to promulgate MACT standards by the dates specified in sections 112(e) (1) and (3), section 112(j) of the Act requires the permitting authority to issue source operating permits that contain emissions limitations deemed equivalent to the limitation that would have applied to the source had the MACT standard been issued. To the extent that such emissions limitations are adopted in an approved permit and emissions reductions in VOC are required before November 15, 1996, such reductions are creditable toward the 15 percent VOC emissions reduction requirements. State and Local Standards Section 112(1) allows State and local agencies to request delegation of section 112 implementation and enforcement authority from EPA. To the extent that such programs are approved and emissions reductions in VOC are required before November 15, 1996, such reductions are creditable toward the 15 percent VOC emissions reduction requirements. 3.6 Other EPA Programs Hazardous Waste Treatment, Storage, and Disposal facilities (TSDF’s) regulated under Subtitle C of the Solid Waste Disposal Act may be required to meet Resource Conservation and Recovery Act (RCRA) air emissions standards. Section 112(n) (7) mandates that requirements promulgated under section 112 be consistent with the applicable RCRA rules. Volatile organic compound emissions reductions achieved under the RCRA rules may be creditable toward the 15 percent VOC emissions reduction requirements. Because-the VOC emissions reduction may qualify as a RCRA reduction and a MACT reduction, States should take care to avoid crediting such an emissions reduction twice. Similarly, the 33/50 Project (Industrial Toxics Project) is designed to redu e the emissions of air toxics. Under this program, sources are encouraged to voluntarily reduce toxics releases. Again, States should avoid crediting VOC emissions reductions claimed under this program twice, because such reductions may qualify under the early reduction requirements of section 112 (i) (5). States should be aware that reductions under voluntary programs such as the 33/50 Project must be made enforceable and permanent to be creditable toward the 15 percent VOC emissions reduction requirements. 31 ------- 32 ------- 4.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION REQUIREMENTS AND NEW SOURCE PERFORMANCE STANDARDS Under the authority of Section 111 of the Act, the EPA Administrator was required to publish a list of categories of stationary sources that cause or contribute significantly to air pollution which may reasonably be anticipated to endanger public health or welfare, and to promulgate standards of performance for new stationary sources in the listed categories. The standards are typically called NSPS. The EPA has promulgated NSPS regulations for several VOC source categories. The purpose of the NSPS is to require the application of uniform performance standards for new, modified, or reconstructed sources within a source category, which commence construction or modification after the publication of the regulations (or, if applicable, proposed regulations). The NSPS are based on performance standards which reflect the best technological system of continuous emissions reduction which (taking into consideration the cost of achieving such emissions reduction, and any non—air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated. A performance standard is based on an emissions limit or control efficiency that can be achieved by demonstrated control technology. An NSPS can be based on a design, -equipment, work practice, or operational standard, or a combination thereof, if it is impractical to enforce a performance standard. For the categories of major stationary sources that EPA listed before the date of enactment of the CAAA, EPA is required to propose NSPS regulations for at least 25 percent of the source categories by November 15, 1992; 50 percent of the source categories by November 15, 1994; and for the remaining source categories by November 15, 1996. The EPA has the authority to add source categories to the list of categories for which NSPS may be warranted. Reductions in VOC emissions associated with stationary sources that become subject to an NSPS after November 15, 1990 and before November 15, 1996 are creditable toward the 15 percent VOC emissions reduction requirements. However, care must be taken to ensure that emissions reductions associated with an NSPS are not double-counted under the emissions offset or netting provisions of the NSR rules. In addition, existing sources that become subject to an NSPS as a result of modification or reconstruction may already be subject to RACT rules. The incremental emissions reduction between the allowable emissions required by the NSPS and RACT rules is the emissions reduction creditable toward the 15 percent VOC emissions reduction ‘equirements. The EPA is currently developinq guidance on how ach credit States may take in their 15 percent rate-of—progress Ians for usps promulgated between the date of their plan submittals and November 15, 1996. 33 ------- The EPA has promulgated NSPS to control VOC emissions from sources in the following source categories: • Bulk gasoline terminals. • Municipal waste combustors. • On-shore natural gas processing plants: VOC equipment leaks. • Petroleum dry cleaners. • Petroleum refineries: equipment leaks. • Petroleum refinery wastewater systems. • Polymer manufacturing. • Publication rotogravure printing. • Rubber tire manufacturing. • Storage vessels for petroleum liquids. • Storage vessels for volatile organic liquids. • Synthetic fiber production. • Surface coating operations: • Automobiles and light-duty trucks. • Beverage cans. • Flexible vinyl and urethane coating ahd printing. • Large appliances. • Magnet tape. • Metal coil. • Metal furniture. • Plastic parts for business machines. • Polymeric coating of supporting substrates. • Pressure sensitive tapes and labels. • SOCMI air oxidation unit processes. • SOCMI distillation unit operations. • SOCMI equipment leaks. 34 ------- 5.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION REQUIREMENTS AND MOBILE SOURCE PROVISIONS The CAAA require a combination of national and area-specific emissions control measures to reduce motor vehicle emissions. The following sections present the various mobile source programs and indicate which mobile source reductions qualify as creditable emissions reductions toward the 15 percent VOC emissions reduction requirements. In addition, the reader is referred to the appropriate program development rules and/or guidance. The majority of the mobile source measures mentioned below are included in the MOBILE5a emissions factor model. By using MOBILE5a, States will be able to model the future emissions reductions from specific mobile source programs that they-plan to implement. A MOBILE5a user’s guide will provide instructions on how to model the effects of these programs. Where a measure is not included in the MOBILE5a model, it is indicated below. 5.1. Federal Motor Vehicle Control Program (FMVCP) Tailpipe/extended useful life standards have been established for certification of light—duty vehicles.and light— duty trucks, which revise previously established standards under the pre-1990 FMVCP. These standards, known as Tier1;standards, are to be implemented in phases,- beginning with model ryear 1994. The final rules, published in the Federal Register , (see reference 7), describe new measurement. techniques on .which to base the standards. A new Federal evaporative test procedure will be mandated for:hot-soak and diurnal emissions, running losses, and resting losses. Emissions reductions -due-to implementation of pre-1990 FMVCP regulations cannot be credited toward the 15 percent VOC emissions reduction requirements. However, emissions reductions resulting from implementation of post-1990 FMVCP regulations can be creditable toward the 15 percent VOC emissions reduction requirements. 5.2 Reid Vapor Pressure (RVP) The Act mandates that EPA promulgate regulations-pertaining- to the handling of gasoline with an RVP in excess of 9.0 pounds per square inch (psi) during the peak ozone season.- The Phase II volatility rulemaking, published June 11,1990. in the Federal Register (see reference 8), establishes State RVP standards for 1992 and subsequent years. This regulation specifies RVP limits of 9.0 psi or 7.8 psi for each State. However, a Federal RVP limit below 9.0 psi cannot be required in the attainment areas within each State, unless an area is a former nonattainment area, as stipulated in a December 12, 1991 rulemaking. -(See reference 9.) 35 ------- Like the pre-1990 FMVCP emissions reductions, the reductions in emissions that result from implementation of the required RVP - limits cannot be credited toward the 15 percent VOC emissions reduction requirements. However, if a nonattainment area establishes an RVP limit below the Federal limit, reductions resulting from the lowered RVP limit will be creditable. The EPA guidance document entitled Enforcement of Volatility Regulations - questions and Answers , (see reference 10), addresses questions concerning how the Agency intends to implement and enforce the gasoline volatility regulations. The EPA is currently developing guidance on whether emissions reduction credit will be allowed when a nonattainment area’s projected actual RVP in 1996 will be below its 1996 RVP limit. 5.3 Reformulated Gasoline Section 211(k) of the Act requires certain ozone nonattainment areas to use reformulated gasoline beginning January 1, 1995. This requirement applies to the nine ozone nonattainment areas having a 1980 population in excess of 250,000, and having the highest ozone design value during the period 1987 through 1989. This provision alsoaffects any area that is reclassified .to a severe nonattainment ‘area 1 year after reclassification. --States are permitted to opt—in to the reformulated gasoline program upon formal notice to EPA. Proposed regulations for the reformulated gasoline program were published in the Federal Register on April 16, -1992. (See reference 11.) - To the extent that this measure results in quantifiable VOC emissions reductions before 1996, these reductions will be creditable toward the 15 percent VOC emissions reduction requirements. 5.4 Stage It Vapor Recovery Control 8 The CAAA require that owners or operators of gasoline dispensing systems in particular nonattainment -areas install gasoline dispensing pump vapor control devices, or Stage II controls. These systems control voc vapor releases, as well as benzene and other toxics, during motor vehicle refueling. The CAAA mandate that all moderate and above ozone nonattaininent areas and all areas in an ozone transport region must implement a Stage II program. According to the CAAA, EPA was directed to establish regulations mandating the installation of on—board vapor recovery systems, after consultation with, the Department of Transportation regarding the safety of the systems. In early 1992, EPA published its decision against promulgating on—board 8 Although Stage II vapor recovery control systems for gasoline service stations are discussed under the heading of mobile source provisions in this document, the emissions from gasoline service stations are generally inventoried as an area source. 36 ------- vapor recovery standards (57 FR 13220, April 15, 1992). This decision had the effect of removing the possibility of a Stage II exemption for moderate areas as provided in the Act. However, on January 22, 1993, the District of Columbia Circuit of the United States Court of Appeals ruled that EPA’S decision not to require on-board vapor recovery controls be set aside and on—board vapor recovery standards be promulgated pursuant to section 202(a) (6) of the Act. The EPA is currently studying a schedule for complying with the court’s ruling. When on-board rules are promulgated, a State may withdraw its Stage II rules for moderate areas from the SIP consistent with its obligation under sections 182(b) (3) and 202(a) (6), so long as withdrawal does not interfere with any other applicable requirement of the Act. A March 9, 1993 memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, to U.S. Environmental Protection Agency Regional Air Division Directors, regarding “Impact of the Recent On—Board Decision on Stage II Requirements in Moderate Nonattaininent Areas,” notes that EPA has recently issued findings of failure to submit Stage II rules covering about 20 moderate ozone nonattaininent areas. This memorandum also discusses the implications if a State does not submit complete Stage II rules within 18 months of the findings letter. Furthermore, the memorandum briefly discusses the consequences of moderate area failures to?submit approvable 15 percent rate-of-progress plans or to attain the ozone NAAQS by 1996. Given the significant contribution that Stage II can provide to achievement of these requirements, and the consequences of failure to meet these requirements, States have compelling reasons to submit their Stage II rules and maintain them even after an on-board rule has been promulgated. Further guidance on Stage II requirements for moderate nonattainmnent areas seeking redesignation will be forthcoming. Emissions reductions resulting from the post—1990 - implementation of a Stage II program will be creditable toward the 15 percent VOC emissions reduction requirements. TWO documents are available to guide States in developing and implementing acceptable Stage II programs. Technical information on Stage II programs is available in a 1991 document entitled, Technical Guidance - Stage II Vapor Recovery Systems for Control of Vehicle Refueling Emissions at Gasoline Dispensing Facilities . (See reference 12.) A second report entitled, Enforcement Guidance for Stage II Vehicle Refueling Control Programs (see reference 13), establishes the minimum requirements for an acceptable Stage II program. 5.5 Clean Fuel Vehicle Program for Fleets The clean fuel fleet vehicle program requires a specified percentage of fleet vehicles purchased in model year 1998 to be clean—fueled vehicles. Thirty percent of new centrally—fueled 37 ------- fleet vehicles in serious and above nonattainment areas with a 1980 population of 250,000 or more must meet standards of 0.075 gram of VOC per mile and 0.2 gram of NO per mile. The percentages increase to 50 percent in 1999, and 70 percent in 2000. Beginning in model year 1996, California will establish a pilot test program requiring 150,000 clean fuel cars to be sold which meet a standard o 0.125 gram of VOC per mile. Other cities can opt-in to the clean fuel fleet program. In the event that a nonattainment area implements a clean fuel fleet program that achieves emissions reductions before 1996, such reductions may be creditable toward the 15 percent VOC emissions reduction requirements. The effects of the clean fuel fleet program on future emissions are presently not modeled in MOBILE5a. The EPA promulgated a final rule entitled, “Clean Fuel Fleet Credit Programs, Transportation Control Measure Exemptions and Related Provisions,” (58 FR 11888, March 1, 1993). In addition, a notice of proposed rulemaking on conversion standards is expected to be released in early summer of 1993. 5.6 Inspection and Maintenance (I/M) Program Final regulations establishing minimum performance standards for I/M programs were published on November 5, 1992 in the Federal Register . (See reference 14.) Marginal ozone nonattainment areas with current or previously required I/M programs are required to submit SIP revisions necessary to meet EPA’s basic I/M program standards. Moderate ozone nonattainment areas must implement a basic I/M program regardless of whether an I/M program was previously required. For areas classified as serious and above with a 1980 population of 200,000 or more, an enhanced I/M program must be implemented. The enhanced I/M program must meet higher performance--standards than the basic I/M program. Guidance on the costs and benefits of enhanced I/M programs has been released by EPA in draft form. (See reference 15.) Corrections to existing I/M programs are necessary if the area’s I/M program fails to meet the more stringent of: EPA’S performance standard, or the standards of the nonattainment area’s current SIP. Emissions reductions achieved as a result of corrections to deficiencies in existing-I/N programs will not be creditable -toward the 15 percent VOC emissions reduction requirements. However, any emissions reductions resulting from additional I/M program requirements of the Act (such as enhanced I/M), or any improvements not mandated by the Act that a State chooses to make in its SIP are creditable toward the 15 percent VOC emissions reduction requirements. 38 - ------- 5.7 On—Board Diagnostic Systems The EPA has promulgated regulations that will require on- board diagnostic systems in all light—duty vehicles and light— duty trucks beginning in model year 1994. These systems monitor emission-related components for malfunctions or deterioration before such events cause emissions increases. The final rule, published February 19, 1993, (see reference 16), discusses EPA’s regulatory approach. Because on-board diagnostic systems are considered part of a State’s I/M program, emissions reductions resulting from the use of these systems will be actounted for when modeling the nonattainment area’s I/N program in MOBILE5a. These reductions are therefore creditable toward the 15 percent VOC emissions reduction requirements. 5.8 Transportation Control Measures (TCM’s) Transportation control measures are strategies to both reduce vehicle miles travelled (VMT), and decrease the amount of emissions per VMT. According to the Act, TCM’s have been identified as an essential element of control strategies for many nonattainment areas. A listing of some of the possible measures to be implemented is found in section 108(f) of the Act. These measures describe strategies to reduce vehicle trips, induce changes in the type of vehicles used, shift travel time, and/or improve traffic flow. When a TCM results in a measurable decrease in VMT, the emissions reductions that result from the reduced VMT can be calculated by multiplying this lower VMT value by the MOBILE5a emissions factor. The TCM’S may also affect other components that are factored into the MOBILE5a model. Further guidance by EPA is forthcoming describing the methods to quantify the emissions reductions achieved as a result of TCM’s. Emissions reductions resulting from TCM’s are creditable if the TCM is not already federally mandated (e.g., the employee trip reduction program required under section 182(d) (1) (B) for severe and extreme ozone nonattainment areas), or is not part of an already existing SIP. As with all other emissions reductions, emissions reductions associated with TCM’s are only creditable to the 15 percent rate-of-progress plan if they are quantifiable, real, enforceable, replicable, accountable, and occur by November 15, 1996. Two EPA documents provide guidance on identifying, evaluating, implementing, monitoring and enforcing TCM’s: Transportation Control Measures: State Implementation Plan Guidance , (see reference 17), and Transportation Control Measure Information Documents . (See reference 18.) 39 ------- 40 ------- 6.0 RELATIONSHIP BETWEEN THE 1993 ATTAINMENT DEMONSTRATION PLAN - AND N0 REQUIREMENTS Nitrogen oxide emissions reductions occurring in the period 1990-1996 may not be substituted for VOC emissions reductions for the rate-of-progress requirements. However, section 182 (b) (1) (A) of the Act stipulates that the revised SIP sishall provide for such specific annual reductions in emissions of volatile organic compounds and oxides of nitrogen as necessary to attain the national primary ambient air quality standard for ozone by the attainment date applicable under this Act.” (Additionally, CO emissions reductions can also be used to facilitate attainment of the ozone NAAQS.) The purpose of this section is to address the. use of NO emissions reduction requirements as an option available to States for achieving attainment of the ozone NAAQS. Section 407(b) of the Act (under the Acid Rain provisions) includes NO emissions limits for coal-fired boilers. The schedule for issuing regulations that establish the emissions limitations are as follows: • May 15, 1992: tangentially fired boilers and dry bottom wall—fired boilers. • January 1, 1997: wet bottom wall—fired boilers, cyclones, units applying cell burner technology, and all other types of utility boilers. The maximum allowable emissions rates for tangentially fired boilers and dry bottom wall-fired boilers were established by the Act as 0.45 pounds per million British thermal units (lb/NMBtu) and 0.50 lb/MNBtu, respectively. The maximum allowable emissions rates for the remaining boilers will be based on the degree of reduction achievable through the retrofit application of the best system of continuous emissions reduction. As indicated previously, section 182(b) (1) (A) allows NO reductions to be used in conjunction with VOC emissions reductions only for purposes of attaining the ozone NAAQS, not for meeting the 15 percent rate-of-progress requirement. This is particularly important for moderate areas, which must attain the ozone NAAQS by November 15, 1996. Moderate areas proposing to use NO reductions to achieve ozone attainment must establish in their attainment demonstration-with the use of a model—that such reductions will result in attainment. Intrastate moderate areas will generally utilize the Empirical Kinetic Modeling Approach (EKMA) model for the modeling demonstrations; however, moderate areas may choose to use the UAN. Attainment demonstrations for moderate areas are due by November 15, 1993, unless a photochemical grid model (such as UM4) is employed, in which case the attainment demonstration is due by November 15, 1994. 41 ------- In accordance with section 182(c) (2) (C), substitution of NO emissions reductions for VOC reductions is allowable in serious and above areas for the post-1996 VOC emissions reduction requirements. Further details regarding NO substitution will be addressed in the forthcoming guidance for preparing the post—1996 rate-of—progress plan. States are required to present their NO emissions inventories along with their VOC emissions inventories in their rate-of-progress plan submittals (e.g., base year inventory, periodic inventories, modeling inventories). Readers interested in further details regarding the Title I NO requirements are referred to the NO supplement to the General Preamble. (See reference 19.) The EPA anticipates releasing guidance on the substitution of NO 1 for VOC emissions reductions in the fall of 1993. 42 ------- 7.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION REQUIREMENTS AND ECONOMIC INCENTIVE PROGRAMS 7.1 Background Section 182(g) (4) (B) of the Act requires EPA to promulgate rules for EIP’s. A State with an extreme ozone nonattainment area must submit an EIP if it fails to submit a milestone compliance demonstration or fails to meet an applicable rate-of- progress milestone. Such programs are also identified as an explicit option upon such failures in serious and severe ozone nonattainment areas. Additionally, the Act explicitly allows the use of EIP’s in the general SIP requirements [ section 110(a) (2)], the general provisions for nonattaininent area SIP’S (section 172(c) (6)], and in the system of regulations for controlling emissions from consumer or commercial products [ section 183(e) (4)]. On February 23, 1993, EPA proposed a rule for implementing EIP’s (58 FR 11110). The purpose of this section is to discuss the proposed EIP rule, and to address the creditability of emissions reductions under EIP’s toward the 15 percent VOC emissions reduction requirements,. net of growth,. and toward attainment demonstrations. The proposed.-EIP rule serves as interim guidance for both mandated (statutory). and discretionary’ EIP’s and addresses some of the generalissues associated with the design and’ implementation ofEIP’s. The following discussion of the proposed rule reflects EPA’s interim guidance: for EIP’s. The final EIP rule, when promulgated, may differ from this discussion. ‘ • - - - Economic incentive programs are intended to result in the timely reduction of emissions through cthe development and implementation of methods ;less ‘costly than traditional command— and—control methods for meeting air .pollutiontgoals. The’ following three broad types of programs were highlighted in the Act and discussed in the proposed rule: • Marketable permits or marketable emissions limits — emissions sources may achieve their permitted emissions limits either directly or bypurchasing emissions credits from other sources. • Emissions fees — emissions sources 1iave :a direct economic incentive to reduce emissions to the point where the cost of abating emissions equals the emissions fees. • Mobile source programs — programs to reduce vehicle emissions or VMT, including TCM’s. 43 ------- The Act does not limit EIP’s to these three general categories. Other programs could potentially include public awareness campaigns, capital grants for technological innovation or implementation, information programs that encourage consumers to purchase less polluting products, credit for early reductions, and adjustments in building codes or zoning ordinances. A combination of EIP’s may enhance the ability of the general program to reduce emissions on schedule, while reducing the costs of emissions reductions on individual sources. The EPA’s proposed rule is intended to ensure that EIP’s will result in real and quantifiable emissions reductions, and that such reductions will be surplus to reductions required by, and credited to, other SIP provisions to avoid double—counting of emissions reductions. Additionally, the rules are intended to provide that such programs contain adequate and appropriate compliance requirements to ensure that programs are enforceable and that reductions are permanent. The rules are not intended to limit the flexibility and innovation of such programs. The EPA’S proposed rule classifies economic incentive strategies into three broad regulatory categories: emissions limiting, market response, and directionally sound. These- categories, -which are discussed in more detail in the :foflowing. paragraphs, are based on Lwhether a quantifiable emissions—related requirement is directly specified as an :integral element of the ‘. program, or whether the program depends upon marketplace decisions, made in response to a programmatic -incentive, -to produce the intended emissions-related objective of the program. Further, the categorization is a function of whether or not the results of the program are quantifiable. I ! Emissions limiting strategies directly specify -the -total amount of emissions ‘that may -be produced -by the affected sources,’ the limit on emissions-related parameters such as emissions per unit of production, or a specified amount of emissions reduction that must be achieved by affected sources. A marketable - - - emissions allowance program with aggregate total emissions limitations is an example of such a program. If every affected source in such a program complies with -its emissions limit (net of any traded emissions credits), the program will necessarily achieve the specified emissions -requirement. - - Emissions limiting strategies are generally creditable toward the 15 percent rate- of-progress requirement provided other-conditions specified elsewhere are met. 44 ------- Market response strategies create one or more economic incentives for an affected source to reduce emissions, without directly specifying a required emissions-related target for individual sources or for all sources in the aggregate. An emissions fee program is an example of a market response strategy. In such a program, each source must pay a fee on each unit of actual emissions. The response to the incentive, in terms of actions which affect emissions levels, will be determined by each source. Thus, each source has flexibility in determining its level of emissions, but must not exceed any limitation imposed by other regulatory requirements. In developing such a program, a State must project the aggregate response to the incentive, and subsequently compare the projected emissions with the actual emissions from affected sources. Inherent in programs based on market response strategies is the consequence that actual emissions from affected sources may differ from the projected level even if every affected source is in full compliance with the EIP requirements. Thus, programs using a market response strategy must contain reconciliation procedures that compare projected emissions with actual emissions. Any shortfall identified by the reconciliation procedure must be made up through a revision of certain parameters of the EIP (e.g., increase the fee or include more sources), or by invoking part of the general SIP contingency plan or a program-specific contingency. Market response strategies may be used in some instances to provide credit toward the 15 percent rate-of-progress requirements. The next section contains additional discussions on the creditability of market response strategies. Directionally sound strategies do not yield quantifiable emissions reductions creditable toward the emissions reductions required to meet rate-of-progress requirements or for attainment demonstrations. A public awareness campaign is an example of a directionally sound strategy. Such strategies may be included in an area’s attainment plan, without credit, or in a maintenance plan if the approach contributed to the area achieving attainment. Emissions reductions from such programs are not creditable because the program lacks one or more of the basic program elements, such as an emissions baseline or adequate quantification procedures. However, a State may want to pursue such a strategy as a part of its overall program to attain and maintain the NAAQS. 7.2 Creditability in SIP’S The creditability of emissions reductions obtained under EIP’s toward the 15 percent VOC emissions reduction requirements, net of growth, and attainment demonstrations is a critical issue for States considering the implementation of such a program. The SIP credit given for traditional source—specific technology or 45 ------- performance standards is based on detailed evaluations of the emissions reductions that will be achieved by complying sources. A factor is then used to account for the lower reductions that will result from an anticipated level of less—than-complete compliance, such as through the use of a rule effectiveness factor for stationary sources. Creditability of rule effectiveness improvements is discussed in sections 5.5 and 5.6 of the document entitled Guidance for Growth Factors. Projections, and Control Strategies for the 15 Percent Rate—of— Progress Plans . (See reference 20.) However, for market response strategies it is inherently not possible to specify, prior to the implementation of such a strategy, the exact emissions reductions that will be achieved even if all sources comply with all relevant requirements of the program. In its proposed rule for EIP’s, EPA addresses the components that must be included.in an EIP .if the emissions reductions projected by a State are to be given credit in a SIP. In order for projected emissions reductions from EIP’s to be creditable in a SIP, the emissions reductions must be quantifiable (i.e., credible, workable, and replicable); consistent with the SIP rate-of-progress and attainment requirements; surplus to reductions required by the current SIP requirements, the attainment demonstration, or any milestone demonstration; enforceable at the State and Federal levels; and permanent. These requirements for creditability are the same as for any emissions reduction for which a State seeks credit. In addition to these requirements for creditability, there are also requirements that are specific to emissions reductions from EIP’s. If a State is to receive credit for projected emissions reductions from an EIP program,’the State must address the uncertainties in the projected emissions reductions from its EIP’s. In order to do’this, the State must specify, for each of its EIP’s, the following elements: program uncertainty factor; rule compliance factor; program audit provisions; and, for market—response EIP’s, reconciliation procedures. The rule compliance factor is intended to discount the amount of emissions reductions credited in an implementation plan demonstration to account for less—than—complete compliance by the affected sources in an EIP. 9 The program uncertainty factor is intended to discount the amount of emissions reductions credited in an implementation plan demonstration to account for any strategy-specific uncertainties in an EIP. The EPA intends, for these factors to address the issues of less—than—complete 9 The rule compliance factor is analogous to the rule effectiveness factor for stationary sources equipped with control devices. 46 ------- compliance and the inherent uncertainties in future market response, respectively. Credit would, in certain cases, be taken at the beginning of an approved EIP, with the level of credit based on emissions reduction projections which incorporate these two discounting factors. In the proposed rule on EIP’s, States would be required to develop and submit a justification for the values of these two discounting factors. Program audit provisions are used to track actual emissions reductions from an EIP. If a State uses a market—response EIP, the program audit provisions must be accompanied by reconciliation procedures to compare the projected emissions reductions (which are credited emissions reductions in the SIP) with the actual emissions reductions. Additionally, market— response EIP’s must have contingency measures developed to make up for any shortfall between projected and actual emissions reductions. These measures must be automatically executed if there is an emissions shortfall; the State may choose a specific measure(s) from the contingency measures in the EIP, but the measure must be able to go into effect without further action from the State. In the proposed rule on EIP’s, EPA suggests that program audits and reconciliations be made at time intervals consistent with the rate—of—progress milestones and emissions inventory requirements, which are generally every 3 years. States should consult with the appropriate EPA Regional Office concerning the creditability of emissions reductions from EIP’s toward the emissions reductions required for the rate—of— progress requirements and the attainment demonstration. Reductions from EIP’s must of course occur before the rate—of— progress milestone date to be creditable toward the 15 percent VOC emissions reduction requirements, net of growth. 7.3 Baseline Emissions -in EIP’s Economic incentive programs incorporated in a SIP pursuant to section 182(g)(4) are designed to produce emissions reductions. In most cases, a State will want to credit that part of the emissions reductions not consumed by minor source growth (including minor:sources increasing to major source size) toward the rate—of-progress plan requirements, or attainment demonstration, or both. Emissions reductions from EIP’s creditable for either-the rate-of—progress plan requirements and attainment demonstration must be fully consistent with the requirements specified by the Act and the EIP rule. Many types of EIP’s require an emissions level as a starting point for the program. The total emissions level used as a starting point in an EIP is referred to as the EIP baseline. For instance, a marketable allowance program with an emissions cap must initially allocate some level of allowable emissions to affected sources. After the program begins, affected sources may 47 ------- adjust their emissions cap by buying or selling emissions allowances from other sources. All affected sources must periodically demonstrate that they are in compliance with their emissions cap, as adjusted by trading. The proposed rule on EIP’s would allow States flexibility in determining baseline emissions. The baseline, however, must be specified within the EIP as it is used as the basis for initializing the EIP incentive mechanism and projecting program results. Under certain circumstances, a State may choose to establish an EIP baseline different than actual 1990 emissions. In such cases, an ElF baseline may be established as a function of actual emissions, allowable emissions, a combination of actual and allowable emissions, or some other basis. A State may want to establish the ElF baseline based on a consideration of equity, economic conditions, or political viability. However, it should be noted that the State must use the 1990 actual base year inventory as the baseline for the State’s rate-of—progress plan. This issue is discussed in the guidance document entitled Guidance on the Adjusted Base Year Emissions Inventory and the 1996 Target for the 15 Percent Rate—of—Proqress Plans . (See reference 21.) The only emissions reductions that will be creditable toward the 15 percent rate—of-progress requirements or attainment demonstration are those fully consistent with the applicable EPA policy on the demonstrations. If a State uses an EIP baseline - different than the baseline used in its 15 percent rate—of— progress plan, the State-must establish the relationship between emissions reductions from the ElF and emissions reductions creditable in its plan. For example, a State may decide to require a 15 percent reduction, net of growth, in actual emissions (measured against a 1990 actual emissions baseline) from a group of sources over the next five years. Alternatively, the State could choose to implement a marketable allowance program using an allowable emissions baseline. After initializing each source’s emissions limit at 1990 allowable emissions, the State could require a 40 percent reduction, for example, in the emissions cap between 1990 and 1996. In order for the State to receive-a 15 percent reduction creditable toward the rate—of-progress plan, theState would need to demonstrate that a 40 percent reduction in allowable emissions for a group of sources would result in a 15 percent reduction in actual emissions for those sources. 7.4 Quantification of Emissions Economic incentive programs require the development and use of accurate, reliable, and replicable methods to quantify emissions, including baseline emissions. Such methods should include: 48 ------- • Specification of quantification methods. • Specification of averaging times. • Accounting for shutdowns and production curtailments. • Accounting for batch, seasonal, and cyclical operations. • Determining emissions contribution for periods for which monitoring data were not gathered, or data are otherwise missing or have been demonstrated to be inaccurate. • Accounting for travel mode choice options for TCM’s. The selected approach to emissions quantification should be the most effective for a particular source type. Potential approaches include direct measurement of emissions, either continuously or periodically; equations which are a function of process or control system parameters, ambient conditions, activity levels, and throughput or production rates; mass balance calculations which are a function of inventory, usage, or disposal records; EPA-approved emissions factors; or any combination of such approaches. The proposed EIP rule does not require the use of any particular quantification approach, but cautions that if emissions reduction credits are to be taken, the method for quantifying emissions must yield results which can be shown to have a level of certainty comparable to that for source- specific standards and traditional methods of control strategy development. 49 ------- 50 ------- 8.0 RELATIONSHIP BETWEEN THE 15 PERCENT VOC EMISSIONS REDUCTION - REQUIREMENTS AND TITLE V (OPERATING PERMITS) Title V of the Act requires States to develop and submit operating permit programs by November 15, 1993, to EPA for approval. Sources subject to the program must submit permit applications within 1 year of EPA’s approval of the State program or, where the State program is not approved, within 1 year of EPA’s promulgation of a permit program. The operating permit program should more efficiently implement the Act, providing improved enforcement and enhanced State air program resources. The operating permit program is designed to streamline regulation of permitted sources by incorporating the various Act requirements (including preconstruction permit requirements) to which a source is subject into a single document. The program will eventually apply to the following sources, however, initially only major sources are covered: • Major stationary sources, as defined in Table 1 of this document. • Any other source, including an area source, subject to a HAP standard or regulation under section 112.- - • Any source subject to an NSPS under section 111. • Affected sources under the acid rain provisions of Title IV. • Any source required to have a preconstruction- review’ permit pursuant to the requirements of the PSD-prograiu under Title I, Part C, or the NSR program under Title I, Part D. • Any other stationary source in a category EPA designates in whole or in part by regulation, after notice and comment. Additionally, the operating permit program may be used to facilitate the use of market-based incentives for emissions reductions, consequently, the operating permit program may be the primary implementing mechanism of EIP’s, discussed in Section 7.0 of this document. Key concepts of the operating permit program should be understood for States to effectively integrate permit programs into emissions reduction requirements such as the 15 percent rate-of-progress requirement. These concepts include: • Operating permits must contain SIP requirements and reflect terms of preconstruction permits. 51 ------- • Operating permits must ensure continued compliance by the source with all applicable requirements of the Act, which include all SIP requirements and permit limits necessary to meet a rate-of—progress requirement; however, meeting the NAAQS is not an applicable requirement except for “temporary” sources. • States may implement a more extensive operating permit program than required to comply with the Act’s requirements or schedules. • The EPA must implement a Federal operating permit program in the event a State fails to satisfactorily develop or implement its program. • The SIP will continue to be the mechanism for demonstrating attainment and maintenance of the NAAQS, and for demonstrating achievement of emissions reductions. Thus, States may rely on their regulatory program alone in their rate-of—progress plan to demonstrate that sufficient emissions reductions will occur to meet the 15 percent emissions reduction requirement. That regulatory program will ultimately be implemented through the permit program at least for sources for which permits are required. Emissions controls that are not in a regulatory program but contained in a permit alone will not be creditable toward the 15 percent rate-of-progress requirement unless the permit itself is submitted as part of the SIP. Of course, the emissions reduction must occur prior to November 15, 1996 to be creditable toward the 15 percent emissions reduction requirements. Readers interested in further details of the operating permit program are advised to refer to the final Title V regulations, published July 21, 1992 in the Federal Register . (See reference 22.) - 8.1 satisfying si Principles with Operating Permits As stated above, the SIP continues to be the mechanism for demonstrating the attainment of the NAAQS, maintenance of the NAAQS once attainment occurs, and prescribed rates of progress. The SIP, and any implementing instruments, including permits, must adhere to principles discussed in the Title I General Preamble. (See reference 23.) These principles are: quantifiability, enforceability, replicability, and accountability. These four principles must be adhered to for any emissions reduction to be creditable toward the 15 percent VOC emissions reduction requirements. 52 ------- State implementation plans generally contain enforceable emissions limits, recordkeeping, reporting, and testing requirements adequate to satisfy these principles. The four principles could be fulfilled by a combination of the SIP and operating permits. For example, operating permits could satisfy the principle of quantifiability because they are well suited to contain source-specific recordkeeping and reporting requirements and most source-specific measuring and monitoring requirements (e.g., the permit may specify a test method where one is not referenced in the SIP). The principle of enforceability and accountability could be satisfied by stipulating source-specific emissions limitations and control techniques in the operating permit. Future permits may be able to satisfy the principle of replicability, if they implement a replicable procedure by which a permit requirement is revised. This procedure would have been approved previously in the SIP. 8.2 Areas Requiring Emissions Reductions Less Than 15 Percent Section 182(b) (1) (A) (ii) allows moderate, serious, and severe ozone nonattainment areas to reduce VOC emissions by less than 15 percent if the following conditions are met. First, the State must demonstrate that the area has a NSR program equivalent to the requirement in extreme areas (section 182(e)], except that a “major source” must include any source that emits, or has the potential to emit, 5 tpy of VOC. All major sources (down to those with emissions of 5 tpy of VOC or greater) in the area must be required to have RACT-level controls. The plan must also include all measures that can be feasibly implemented in the area, in light of technological achievability. To qualify for the lesser percentage, the State must demonstrate that the SIP includes all measures (both stationary and mobile) that are achieved in practice by sources in the same source category in nonattainment areas of the next higher classification. If a moderate or above ozone nonattainment area chooses to meet the requirements of section 182(b) (1) (A) (ii) to get a “waiver” of the 15 percent provision, EPA interprets Title V to require operating permits for all VOC sources in that area that are considered major under this new definition of major source (i.e., new and existing sources that emit or have the potential to emit 5 tpy of VOC). This is because the definition of “major source” in Title V expressly refers to “major stationary source” as defined in Part D of Title I. Since, under the waiver provision of section 182(b) (1) (A) (ii), “major stationary source” would be defined as having the potential to emit 5 tons per year for the purposes of Title I, this would become the definition of major source for the purposes of Title V. 53 ------- 54 ------- REFERENCES 1. 51 FR 43814. “Emissions Trading Policy Statement; General Principles for Creation, Banking and Use of Emission Reduction Credits.” December 4, 1986. 2. 57 FR 13498. “General Preamble, Implementation of Title I, Clean Air Act Amendments of 1990.” April 16, 1992. 3. New Source Review Workshop Manual. Prevention of Significant Deterioration and Nonattainment Area Permitting , U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards. Draft. October 1990. 4. 57 FR 55620. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990.” November 25, 1992. 5. “Early Reductions Program/Title I Interface,” Memorandum from John S. Seitz, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, December 20, 1991. 6. 57 FR 61970. “National Emission Standards for Hazardous Air Pollutants; Compliance Extensions for Early Reductions.” December 29, 1992. 7. 56 FR 25724. “Control of Air Pollution From New Motor Vehicles and New Motor..Vehicle Engines: Gaseous and Particulate Emission Regulations for 1994 and Later Model Year Light-Duty Vehicles and Light—Duty Trucks; Final Rule.” June 5, 1991. 8. 55 FR 23666. “Volatility Regulations for Gasoline and - Alcohol Blends Sold in Calendar Years 1992 and Beyond.” June 11, 1990. 9. 56 FR 64704. “Regulation of Fuels and Fuel Additives: Standards for Gasoline Volatility.” December 12, 1991. 10. Enforcement of Volatility Regulations’—— Questions and Answers , U.S. Environmental Protection Agency, Field Operations and Support Division of the Office of Mobile Sources, Ann Arbor, MI. May 1992. 11. 57 FR 13416. “Regulation of Fuels and Fuel Additives; Standards for Reformulated and Conventional Gasoline.” April 16, 1992. 55 ------- 12. Technical Guidance - Stage II Vapor Recovery Systems for Control of vehicle Refueling Emissions at Gasoline Dispensing Facilities , U.S. Environmental Protection Agency, Off ice of Air Quality Planning and Standards, Research Triangle Park, NC. 450/3—91—022a. 1991. 13. Enforcement Guidance for Stage II Vehicle Refueling Control Programs , U.S. Environmental Protection Agency, Office of Mobile Sources, Ann Arbor, MI. October 1991. 14. 57 FR 52950. “Inspection and Maintenance Program Requirements.” November 5, 1992. 15. I/M Costs, Benefits, Impacts and Analysis , U.S. Environmental Protection Agency, Office of Mobile Sources, Ann Arbor, MI. Draft. February 1992. 16. 58 FR 9468. “Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines; Regulations Requiring On-Board Diagnostic Systems on 1994 and Later Model Year Light-Duty Vehicles and Light—Duty Trucks.” February 19, 1993. 17. Transportation Control Measures: State Implementation Plan Guidance , U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. September 1990. 18. Transportation Control Measure Information Documents , U.S. Environmental Protection Agency, Office of Mobile Sources, Ann Arbor, MI. March. 1992. 19. Reference 4. 20. Guidance for Growth Factors,- Prolections. and Control Strategies for the 15 Percent Rate—Of—Progress Plans , EPA— 452/R-93-002, U.S. Environmental Protection Agency, Office of Air Quality and Planning Standards, Research Triangle Park, NC. March 1992. 21. Guidance on the Adiusted Base Year Emissions Inventory and the 1996 Taraet for the 15 Percent Rate-of—Progress Plan , EPA-452/R-92-005, U.S. Environmental Protection Agency, Office of Air Quality and Planning Standards, Research Triangle Park, NC. October 1992. 22. 57FR 32250. “State Operating Permit Program; Final Rules.” July 21, 1992. 23. Reference 2. 56 ------- APPENDIX A DEFINITION OF TERMS This appendix provides the specific definitions of EPA terms as they are used in this guidance. Different EPA programs sometimes use different definitions of the same term (e.g., major source). This appendix notes where conflicts occur in the definition of a term used in this guidance. These definitions are presented for the purposes of this guidance document only; the reader is advised to refer to specific regulations, policies, and sections of the Act to obtain complete definitions for the program or title of interest. Allowable Emissions The emissions from a source based on either the maximum rated capacity of the source (unless the source is subject to a federally enforceable permit which restricts the operating rate, or hours of operation, or both) and the applicable emissions standards, or federally enforceable emissions limit. Area Source Any stationary and nonroad sources that are too small and/or too numerous to be included in the stationary point source emissions inventories. For the purposes of section 112 of the Act, any stationary source of HAP’s that is not a major source. Attainment Demonstration Moderate and above ozone nonattainment areas must demonstrate that the reductions specified in the revised SIP will result in modeled air quality for the nonattaininent area that achieves, attainment by the applicable attainment date. This requireinent.can.be met through.the application of an EPA-approved mode1 and EPA—approved modeling techniques described in the current. version of the Guidance on Air quality Models, 9 which is currently under revision. Two models are suggested: the UAN or EKMA. The EPA requires the submittal of attainment demonstrations employing UAN for serious and above areas and multi-State moderate areas as part of the SIP revision due by November 15, 1994. Attainment demonstrations based on EKNA for moderate. nonattainnient areas within..a single State (intrastate moderate areas) must be submitted as part of the SIP revision due by November 15, 1993, unless the State chooses to use UAN, in which case the demonstration must be submitted as part of the SIP revision due by November 15, 1994. 9 Guidance on Air Quality Models (Revised) , EPA—450/2—78—027R, July 1986 (currently under revision). A-i ------- The use of EKNA is described in Guideline for Use of City— Specific EKMA in Preparing Ozone SIP’s,’° as well as the aforementioned guideline that is under revision. This document, and the appropriate Regional Office, should be consulted before an analysis is conducted with this modeling approach. The use of UAM is described in Guideline for Regulatory Application of the Urban Airshed Model.” Attainment Determination The EPA must determine within 6 months after the applicable attainment date whether an area has attained the NAAQS for ozone. The attainment dates are as follows: • Marginal areas -- November 15, 1993. • Moderate areas —- November 15, 1996. • Serious areas —— November 15, 1999. • Severe areas —— November 15, 2005 (severe areas with a 1986-1988 ozone design value of 0.190 up to, but not including 0.280 parts per million have until November 15, 2007). • Extreme areas —— November 15, 2010. In making the attainment determination, EPA will use the most recently available,, quality-assured air quality data covering the 3-year period preceding the attainmentt date. For ozone, the average number of exceedances per year after adjustment for missing data are used to determine whether the area has attained. Basic Inspection and Maintenance• (I/M ) Programs requiring the inspection of vehicles including, but not limited to, measurement of tailpipe emissions, and mandating that vehicles with tailpipe emissions higher than- the program’cutpoints be repaired to-pass a tailpipe emissions retest.. Basic I/Mprograms must be at--least as stringent as the requirements set out’in section 182(a)(2)(B). Directionally Sound Strategy An economic incentive strategy that does not specify a program baseline, nor adequate procedures to quantify emissions reductions. ‘ °Guideline for Use of City-Specific EKMA in Preparing Ozone SIP’s , EPA—450/4-80-027, U.s. Environmental Protection Agency. 1980. “ Guideline for Regulatory Application of the Urban Airshed Model , EPA-450/4-9l-013, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. A-2 ------- Economic Incentive Program A1located ase1jne The initial level of emissions for sources affected by an EIP. The emissions reduction effect of the EIP’s incentive strategy is measured from the EIP baseline. The EIP baseline year may be different than the 1990 base year inventory required under Title I. Further, the EIP baseline may be based on actual emissions, allowable emissions, a combination of actual and allowable emissions, or some other alternative. Emissions Limiting Strategy An economic incentive strategy that directly specifies limits on total mass emissions, emission— related parameters (e.g., emission rates per unit of production, product content limits), or levels of emissions reductions relative to a program baseline that are required to be met by affected sources, while providing flexibility to sources to reduce the cost of meeting program requirements. Enhanced Inspection and Maintenance (I/M ) A program including, at a minimum, computerized emissions analyzers, on—road testing, denial of waivers for warranted vehicles or repairs related to tampering, a $450 cost waiver requirement for emissions—related repairs not covered by warranty, and inspection of the emissions control diagnostic system (when required by EPA)... In addition, enforcement through registration denial, annual inspections, and centralized testing are required, unless less stringent measures can be proven fully effective by the State (or in the case of enforcement, more effective). Housing and Urban Development (HUD Zones ,A portion of.a nonattainment area targeted for economic growth by the Administrator, in consultation with the Secretary of HUD. Growth allowances are restricted to HUD zones under the Act. Incidental Emissions Reductions Reductions inthe emissions of a pollutant caused by the mandatory reduction in the emissions of another pollutant. Malor Modification The Act has multiple definitions for major modifications depending on the. nonattainment classification and the pollutant. Major modification thresholds are listed in Table 2 for both VOC and NO 1 sources. The term major modification is used to determine whether the modification of an existing facility is subject to NSR requirements. Malor Stationary Source The Act has multiple definitions for major stationary sources depending upon the nonattairunent classification and the pollutant. Section 302 of the Act defines a major stationary source as one that directly emits, or has the potential to emit, 100 tpy or more of any air pollutant. As exceptions to this rule, major stationary source emissions A-3 ------- thresholds, as defined in Part D of Title I of the Act, are listed in Table 1 for both VOC and NO sources. Milestone Compliance Demonstration For serious and above classified nonattainment areas, demonstrating achievement of the 15 percent VOC emissions reduction over the 1990—1996 period, or demonstrating subsequent 3 percent VOC emissions reductions per year averaged over each consecutive 3—year period from November 15, 1996 until the attainment date. Section 182(g) (2) requires that within 90 days of the date on which an applicable milestone occurs (not including an attainment date on which a milestone occurs in cases where the standard has been attained), States with nonattainment areas must submit a demonstration that the milestone has been met (e.g., the 15 percent VOC emissions reduction is demonstrated by February 13, 1997). The EPA expects to release regulations pertaining to the requirements of the milestone demonstration in the Summer of 1993. Market Response Strateav An economic incentive strategy that creates one or more incentives for affected sources to reduce emissions, without directly specifying limits on emissions or emission—related parameters that individual sources or even all sources in the aggregate are required to meet. Modification .With respect to section 112 of the Act, any physical change in, or change in the method of operation of, a major source which increases the actual emissions of any HAP emitted by such source by more than a de minimis amount or which results in the emissions of any HAP not previously emitted by more than a de minimis amount. ‘ - Netting The procedure of determining the net emissions ‘increase associated with a modification combined with certain previous and prospective emissions changes at an existing majorcstationary source. If an existing major stationary source proposes a modification that will result in a significant net emissions increase, it will be subject to all applicable NSR requirements. Netting must take place at the same stationary source; emissions reductions used in netting cannot be traded between stationary sources. 1990 Adjusted Base Year Inventory Section 182(b) (1) (B) and (D) describes the inventory• (hereafter referred to as the adjusted base year inventory) from which moderate and above ozone nonattainmerit areas must achieve a 15 percent reduction in VOC emissions by 1996. This inventory is equal to “the total amount of actual Voc or NO emissions from all anthropogenic (man—made) sources in the area during the calendar year of enactment,” excluding the emissions that would be eliminated by FMVCP regulations promulgated by January 1, 1990, and RVP regulations (55 FR 23666, June 11, 1990), which require specific maximum RVP A-4 ------- levels for gasoline in particular nonattainment areas during the - peak ozone season. The 1990 rate-of—progress base year inventory - (defined below) removes biogenic emissions and emissions from sources listed in the base year inventory that are located outside of the nonattainment area. The adjusted base year inventory removes the emissions reductions from the FMVCP and RVP program from the 1990 rate—of—progress base year inventory. The adjusted base year inventory, which is due by November 15, 1992, is used to calculate the required 15 percent reductions. Adjusted Base Year Emissions Inventory = Base Year Emissions Inventory, minus the following: • Biogenic source emissions. • Emissions from sources outside of the nonattainment area boundary. • Emissions reductions from.the FXVCP. - • Emissions reductions from the RVP rules. 1990 Base Year Inventory The 1990 base year inventory is an inventory of actual annual and typical weekday peak ozone season emissions that States use in calculating their adjusted and projected inventories, and in developing their control strategy. The base year inventory comprises emissions for the area during the peak ozone season, which is generally the summer months. It includes anthropogenic sources of N0 and CO emissions, and both anthropogenic and biogenic sources of VOC emissions. Also included in the inventory are emissions from all stationary point sources and area sources as well as highway and nonroad mobile sources located within the nonattaininent area, and stationary sources with emissions of 100 tpy or greater of VOC, NOR, and CO emissions within a 25-mile wide buffer zone of the designated nonattainment area. The base year inventory contains off-shore sources located within the nonattainment area boundaries and of f— shore stationary sources with emissions.of 100 tpy or greater of VOC, N0 , or Co emissions within the 25-mile wide buffer area. For nonattainment areas that will perform photochemical grid modeling (e.g., serious and above areas and multi—State moderate areas), emissions for the entire modeling domain, which is usually largerthan the .nonattainmentarea because ozone is an area-wide problem, are required in the modeling inventory. This modeling inventory could be submitted with the base year inventory, or the modeling inventory submittal could b in a separate package. It is important to note that the 1990 base year inventory serves as the starting point for all other inventories. 1990 Rate-of-Progress Base Year Inventory An accounting of all anthropogenic VOC, CO, and NO, emissions in the nonattairnuent area. This emissions inventory is calculated by removing biogenic emissions and the emissions from sources that are A-5 ------- located outside of the nonattainment area from the base year inventory. This inventory is used in developing the adjusted base year inventory. It is also used as the basis from which to calculate the 1996 target level of emissions. 1996 Target Level of Emissions The 1996 target level of emissions is the maximum amount of ozone season VOC emissions that can be emitted by an ozone nonattainment area in 1996 for that nonattainment area to be in compliance with the 15 percent rate-of-progress requirements.. It is calculated by first taking 15 percent of the adjusted base year inventory emissions. This emissions value is then added to the expected emissions reductions due to the FMVCP and RVP program, and from corrections to any deficient RACT rules and I/M programs. The summation of the 15 percent, the expected reductions from deficient I/M and RACT programs, and reductions from the FMVCP and RVP program are then subtracted from the 1990 rate-of-progress base year inventory to arrive at the 1996 target level of emissions. This target is used by States to design their 15 percent VOC emissions reduction control strategies. The projected control strategy inventory used in the rate-of-progress plan must be at or below the 1996 target level of emissions to demonstrate that the 15 percent VOC emissions reduction will be accomplished. 1996 Target-Level of Emissions = Rate—of—Progress Base Year Inventory, minus the following: • 15 percent of the adjusted base year inventory emissions. • Emissions reductions from corrections to any deficient RACT rules. • Emissions reductions from corrections to deficient I/N programs. • Emissions reductions from the pre—1990 FNVCP. • Emissions reductions from RVP rules. Of f sets Surplus emissions reductions secured from existing source(s) by a prospective major new stationary source, or a source planning major modifications, in order for the new or modified source to obtain a nonattainment. area preconstruction permit. Offsets are generally secured from other sources in the vicinity of the new source or modification, but can also be obtained, with limitations, from the source itself in the case of a modification. Offset Ratios For the purpose of satisfying the emissions offset reduction requirements of section 173(a) (1) (A), the emissions offset ratio is defined as the ratio of total actual emissions reductions of VOC [ and NO unless exempted under section 182(f)] obtained as offsets from existing sources to total allowable A-6 ------- emissions increases of such pollutant from the new source. (See Table 1 for a list of offset ratios by nonattainment area.) Point Source Any stationary source that has the potential to emit more than some specified threshold level of a pollutant or is identified as an individual source in a State’s emissions inventory. For base year SIP inventory purposes, point sources are defined as sources emitting 10 tpy or more of VOC or 100 tpy or more of N0 or Co. Post-1996 Rate-of-Progress Plan The portion of the SIP revision due by November 15, 1994, which describes how serious and above areas plan to achieve the post-1996, 3 percent per year VOC emissions reductions averaged over each consecutive 3—year period from November 15, 1996 until the attainment date. This SIP revision also includes the attainment demonstration for moderate interstate nonattainment areas and serious and above nonattainment areas. Potential to Emit The maximum capacity of a source to emit a pollutant under its physical or operational design, except as constrained by federally—enforceable conditions which may include the effect of installed air pollution control equipment, restrictions on the hours of operation, and the type or amount of material combusted, stored, or processed. Potential to emit is used for major source determinations under NSR (40 CFR 51.165(b)]. Program Uncertainty Factor A factor applied to adjust the amount of emissions reductions attributed to an EIP and credited in an implementation plan demonstration to account for strategy— specific uncertainties inherent in EIP’s that are based on strategies other than emissions limiting strategies. Rate-of-Progress Plan The portion of the SIP revision due by November 15, 1993, that describes how moderate and above ozone nonattainment areas plan to achieve the 15 percent VOC emissions reduction. All moderate intrastate areas that choose to utilize the ERMA in their attainment demonstration, are also required to include their attainment demonstration in this SIP revision. Reformulated Gasoline A blend of gasoline that is certified as meeting all the requirements applicable to reformulated gasoline. These requirements have been proposed as 40 CFR Part 80, Subpart D, and include: • At least 2.0 percent oxygen by weight. • No more than 1.0 percent benzene by volume. • No heavy metals, absent a waiver by EPA. • No increase in NO emissions from baseline vehicles. A-7 ------- • Required reductions in emissions of ozone forming VOC’s. • Required reductions in toxics emissions. Compliance with the emissions requirements is determined by comparing emissions of baseline vehicles (representative model year 1990 motor vehicles) using a baseline gasoline (specified in section 211(k) of the Act) with emissions of baseline vehicles using the reformulated gasoline. The EPA’s proposed regulations provide for the use of credits to meet the above requirements under specified circumstances. Reid Vapor Pressure (RVP ) A maximum gasoline volatility level established to reduce summertime gasoline volatility. Depending on the area, gasoline RVP may not exceed 9.0 psi or 7.8 psi between May 1 and September 15, beginning in 1992. Regulations established by EPA are published in 40 CFR Part 80. Rule Compliance Factor A factor applied to adjust the amount of emissions reductions attributed to an EIP and credited in an implementation plan demonstration to account for less than complete compliance by sources affected by the EIP. Rule Effectiveness (RE ) For stationary sources, a measure of the extent to which a regulatory program achieves emissions reductions. An RE of 100 percent reflects a regulatory program achieving all the emissions reductions that could be achieved by full compliance with the applicable regulations at all sources at all times. However, regulations typically are not -100 percent effective due to limitations of control techniques or shortcomings in-the implementation and enforcement process. The EPA allows the use of several different methods for determining RE including an 80 percent default value; results from EPA Questionnaires; or results from a Stationary Source Compliance Division (SSCD) study. Stage II Gasoline dispensing devices that control VOC vapor releases during the refueling of motor vehicles. This process takes the vapors that would otherwise be emitted directly into the atmosphere during refueling, and redirects them back into the fuel storage tanks. Total Actual Emissions The total emissions from a source over a year or other averaging period that is based on an emissions unit’s actual operating hours, production rates, control equipment, and types of material processed, stored, or combusted. The averaging period used depends on the program. For example, NSR netting baselines are based on 2 years of emissions and operating permit fees are based on 1 year of emissions. For the purposes of the 1990 base year inventory for ozone, actual VOC, A-8 ------- NO , and Co emissions are based on a typical weekday of the peak ozone season. Transportation Control Measure (TCMI Any program that encompasses elements of transportation system management and/or transportation demand management. Transportation system management strategies generally refer to the use of low capital intensive transportation improvements to increase the efficiency of transportation facilities and services. Transportation demand management generally refers to policies, programs, and actions that are directed toward increasing the use of high occupancy vehicles (transit, carpooling, and vanpooling) and the use of bicycling and walking. Section 108(f) of the Act lists the following programs as examples of TCM’s: • Accelerated retirement of vehicles. • Activity centers. • Area-wide ridesharing. • Bicycling alternatives to motor vehicle travel. • Employer-based transportation management programs. • Limitations on extended vehicle idling. • Control of extreme low-temperature cold starts. • High occupancy vehicle lanes. • Park and ride and fringe parking. • Parking management programs. • Minimization of congestion during special events. • Traffic flow improvements. • Transit improvements. • Trip-reduction ordinances. • Vehicle use limitations/restrictions. • Work schedule changes. Volatile Organic Compound Any compound of carbon, excluding CO , carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photocheinical reactions. This includes any organic compound other than those EPA has determined to have negligible photochemical reactivity.’ 2 ‘ 2 See 57 Federal Register 3945, February 3, 1992. A-9 ------- •IA ‘Y% i i . D S74, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards _____ Research Triangle Park. North Carolina 27711 p 1 I( DflO t JUN14 1993 MEMORANDUM SUBJECT: Rate-of-Progress Plan Guidance for Ozone Nonattainment Areas -- Enforceable Regulations and Compliance Programs FROM: D. Kent Berry, Acting Director Air Quality Management Division 15) TO: Director, Air, Pesticides and Toxics Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X Attached is a document entitled, “Guidance on Preparing - Enforceable Regulations and Compliance Programs for the 15 Percent Rate—of-Progress Plans,” which was prepared to guide States as they begin to develop the State implementation plans (SIP’S) to meet the new rate—of—progress requirements of section 182 (b) (1). This document focuses on compliance and enforcement aspects of control measures that moderate and above ozone nonattainment areas must include in their rate—of-progress plans. The Clean Air Act Amendments of 1990 require a specified rate of emissions reductions for all ozone nonattainment areas classified as moderate or above. These areas must submit a SIP revision detailing how the area will achieve a reduction in volatile organic compounds (VOC) emissions of at least 15 percent between November 15, 1990 and November 15, 1996 (hereafter called the rate-of-progress plan). The rate—of-progress requirement is calculated from the 1990 base-year emissions inventory. The rate-of—progress plan revision is part of the full SIP (including an attainment demonstration based on modeling) for most moderate areas, and a separate submittal for serious and above areas (due November 15, 1993). ------- 2 The attached document provides technical guidance to support the policy presented in 57 FR 13498, April 16, 1992 (“General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990”). The technical guidance provides information on how to prepare enforceable stationary and mobile source regulations and addresses compliance and enforcement issues that typically arise during the development and implementation of regulations. We request that you forward this document to your State and local agencies (an unbound original is attached). This document will also be placed on the Technology Transfer Network, the Management and Accountability Process System, and the State and Local Air Directors Bulletin Board under the file name ENFORCE.RPP. We will provide hard copies upon request as soon as they are available. We trust this information will be helpful to you as you guide your States through the SIP development process. Questions or comments on this document may be addressed to Carla Oldham at (919) 541—3347. Attachment cc: Air Branch Chief, Regions I-X Jane Armstrong, OMS William Becker, STAPPA/ALAPCO John Bosch, TSD Ogden Gerald, TSD Tom Helms, AQMD Steve Hoover, SSCD Vishnu Katari, SSCD Marty Martinez, TSD Ned Meyer, TSD David Mob].ey, TSD Rich Ossias, OGC John Rasnic, SSCD Kiinber Scavo, AQMD Laurel Schultz, AQMD John Seitz, OAQPS John Si].vasi, AQMD Joe Tikvart, TSD Mary Ann Warner-Seiph, TSD Lydia Wegman, OAQPS Dick Wilson, OIlS Howard Wright, TSD ------- Guidance on Preparing Enforceable Regulations and Compliance Programs for the 15 Percent Rate-of-Progress Plans Ozone/Carbon Monoxide Progr ims Branch U.S. Environmental Protection Agency Office of Air Quality Plamung and Standards Research Triangle Park, NC 27711 ------- CONTENTS Page LIST OF TABLES . iv ACRONYMS AND ABBREVIATIONS v EXECUTIVE . . . . . . . . . . . . . . . . . . . . . 1.0 INTRODUCTION . 1.1 Purpose 1.2 Statutory Requirements 1.3 Organization of Document . . . . . . . . 2.0 ESTABLISHING AN ENFORCEABLE STATE RULE 2 • 1 Stationary Source Regulations Common RACT Rule Deficiencies . . . . Model VOCRACTRu1es • . • . • • . . 2.2 Mobile Source Regulations • . . . . • . Inspection and Maintenance (I/M) Programs Stage II Vapor Recovery Control Programs Transportation Control Measures (TCM’ s) . Reid Vapor Pressure (RVP) . . . . . . Reformulated Gasoline Program . . . .. . . 2.3 Economic Incentive Programs (EIP’s) . Baseline EIP Issues . . . . . . . • . Emissions Quantification . . . . • Long—Term Averaging . . . . . Criteria for Monitoring, Recordkeeping, and Reporting • . . • . 3.0 RULE EFFECTIVENESS . • . . . . . . . . . • . . . . 3.1 Compliance Effectiveness . . . . . . • . Stationary Source Compliance Division (SSCD) Study . . . . . . . . 3.2 Inventory Rule Effectiveness 3.3 Rule Effectiveness Improvements 3.4 SiPEffectiveness. . . • . . . . . . . . •1I 4 • 0 DETERMINING COMPLIANCE WITh EPA REGULATIONS • . . 4.1 Current Regulations Related to Compliance . 4 • 2 Enhanced Monitoring and Compliance Certification Regulations . . . . . . . . . . . . . . . . . . . 25 REFERENCES . . . • . . . . . . . . . . . . . . . . . . . . . 29 APPENDIX A: DEFINITION OF TERMS . . . A—i APPENDIX B: CHECKLIST FOR DETERMINING THE ACCEPTABILITY OF STATE RTJLES • . • • . • • . . . . . . . . . . . . . . . B—i 1 3 4 7 8 • . . 11 • . 11 • . . . 12 • . . . 13 . • . . 13 • . . . 14 • • . . i4 • • • . 15 • . . . 16 • • . . 17 • . . . 17 • . . . 18 • . • • 18 • . . • 19 . . • . . . 20 21 21 22 23 23 23 25 25 iii ------- LIST OF TABLES Page A-i. MAJOR SOURCE THRESHOLDS FOR OZONE A-4 iv ------- ACRONYMS AND ABBREVIATIONS Act Clean Air Act CAAA Clean Air Act Amendments of 1990 CC Compliance Certification CFR Code of Federal Regulations CTG Control Technique Guideline EIP Economic Incentive Program EEMA Empirical Kinetic Modeling Approach EM Enhanced Monitoring EPA U.S. Environmental Protection Agency FIP Federal Implementation Plan FR Federal Register gal gallon I/M Inspection and Maintenance kg kilogram NAAQS National Ambient Air Quality Standard NO 1 Nitrogen Oxides psi pounds per square inch RACT Reasonably Available Control Technology RE Rule Effectiveness RVP Reid Vapor Pressure SIP State Implementation Plan SSCD Stationary Source Compliance Division of EPA’s Office of Air Quality Planning and Standards TcM Transportation Control Measure tpy tons per year UAI4 Urban Airshed Model VMT Vehicle Miles Traveled VOC Volatile Organic Compound(s) v ------- EXECUTIVE SUMMARY Section 182(b) (1) of the Clean Air Act (Act) requires all ozone nonattainment areas classified as moderate and above to submit a State implementation plan (SIP) revision by November 15, 1993, which describes, in part, how the areas will achieve an actual volatile organic compound (VOC) emissions reduction of at least 15 percent during the first 6 years after enactment of the Clean Air Act Amendments of 1990 (CAAA) (i.e., up to November 15, 1996). The portion of the SIP revision that illustrates the plan for the achievement of this emissions reduction is subsequently defined in this document as the “rate—of—progress plan.” The purpose of this document is to provide States with guidance on how to prepare enforceable stationary and mobile source regulations for their rate—of—progress plans. Developing clear, concise, enforceable rules and establishing strong compliance programs helps to ensure that the emissions reductions projected for specific control strategies are actually achieved. The document identifies the minimum criteria and the information sources that the U.S. Environmental Protection Agency (EPA) will use to evaluate the enforceability of regulations, and to determine compliance with Federal guidelines and regulations. States should follow the guidelines provided in this document as part of their quality assurance process involved in the development of control measures for their rate—of—progress plans. This document attempts to address compliance and enforcement issues that typically arise during the development and implementation of regulations. The document discusses the ke- elements needed in stationary and mobile source regulations to make the regulations enforceable. For stationary sources, issues related to the development of reasonably available control technology (RACT) rules are discussed. For mobile sources, issues related to inspection and maintenance (I/M) programs, Stage II vapor recovery programs, transportation control measures (TCM’ s), gasoline volatility control programs, and reformulated gasoline programs are discussed. The document also discusses issues related to the development and implementation of economic incentive programs (EIP’s) for nonattainment areas. The EPA is preparing regulations to implement the enhanced monitoring and compliance certification (EM and CC) requirements of the Act. This document provides a general overview of some of the key EM and CC elements that States will need to consider when preparing their regulations for stationary sources. Rule effectiveness is a measure of the degree to which all affected sources comply with an applicable regulation over time. This document discusses the use of rule effectiveness measurements to estimate compliance effectiveness, inventory rule effectiveness, rule effectiveness improvements, and SIP 1 ------- effectiveness. Emphasis is placed on the method for determining compliance effectiveness using the Stationary Source Compliance Division (SSCD) study. 2 ------- 1.0 INTRODUCTION Section 182(b) (1) of the Act requires all ozone nonattainment areas classified as moderate and above to submit a SIP revision by November 15, 1993, which describes, in part, how the areas will achieve an actual VOC emissions reduction of at least 15 percent during the first 6 years after enactment of the CAAA (up to November 15, 1996). Emissions and emissions reductions shall be calculated on a typical weekday basis for the “peak” 3-month ozone period (generally June through August). The 15 percent VOC emissions reduction required by November 15, 1996 is defined within this document as “rate—of—progress.” Furthermore, the portion of the SIP revision that illustrates the plan for the achievement of the emissions reduction is subsequently defined in this document as the “rate—of—progress plan.” It is important to note that section 182(b) (1) also requires the SIP for moderate areas to provide for reductions in VOC and nitrogen oxides (NOr) emissions “as necessary to attain the national primary ambient air quality standard for ozone” by November 15, 1996. This requirement can be met through the use of EPA-approved modeling techniques and the adoption of any additional control measures beyond those needed to meet the 15 percent emissions reduction requirements. States with intrastate moderate ozone nonattainment areas will generally be required to submit attainment demonstrations with their SIP revisions due by November 15, 1993 (such areas choosing to use the Urban Airshed Model (TThN) to prepare their attainment demonstrations will be allowed to submit attainment demonstrations by November 15 ,“3.994) States choosing to run !Th1’I f or their intrastate-moderate areas must submit-by November 1 , ‘The EPA recognizes that the Act terms, for both the 15 percent Voc emissions reduction requirement of section 182(b) (1) and the section 182(c) (2) (B) requirement for 3 percent per year Voc emissions reductions averaged over each consecutive 3-year period from November 15, 1996 until the attainment date, as reasonable further progress requirements. However, because the Act requires sIp revisions for the 15 percent reduction to be submitted in 1993 and SIP revisions for the 3 percent per year reductions to be submitted in 1994, EPA believes that it would be clearer, within the context of both the 15 percent rate-of— progress plan and the post—1996 rate-of—progress plan guidance documents that EPA is producing, to create distinct labels for these two seemingly similar reductions. The 1994 SIP revisions describing the requirement for 3 percent VOC emissions reductions averaged over each consecutive 3—year period from November 15, 1996 until the attainment date, constitute the post-1996 rate-of— progress plan. - 3 ------- 1993, their 15 percent rate-of-progress plan and a committal SIP addressing the attainment demonstration. The committal si subject to a section 110(k) (4) approval would include, at a minimum, evidence that grid modeling is well under way and a commitment, with schedule, to complete the modeling and submit it as a SIP revision by November 1994. The completed attainment demonstration would include any additional controls needed for attainment. Section 182(c) (2) requires all ozone nonattainment areas classified as serious and above to submit a SIP revision by November 15, 1994 which describes, in part, how each area will achieve additional VOC emissions reductions of 3 percent per year averaged over each consecutive 3—year period from November 15, 1996 until the area’s attainment date. It is important to note that section 182(c) (2) (C) allows for actual NO 1 emissions reductions (exceeding growth) that occur after the base year of 1990 to be used to meet post-1996 emissions reduction requirements for ozone nonattainment areas classified as serious and above, provided that such NO 1 reductions meet the criteria outlined in forthcoming substitution guidance. The portion of the SIP revision (due in 1994) that illustrates the plan for the achievement of these post—1996 reductions in VOC or NO 1 is subsequently defined in this document as the “post-1996 rate—of- progress plan.” This plan must also contain an attainment demonstration based on photocheinical grid modeling. The EPA will distribute a separate guidance document on the development of the post—1996 rate—of—progress plan in early to .mid—1993. Demonstrating achievement of the 15 percent VOC emissions reductions by November 15, 1996, and then subsequently - demonstrating achievement; of the 3 percent per year VOC emissions reductions averaged over each consecutive 3—year period from November 15, 1996.until an area’s attainment date, are termed milestone demonstrations. Achievement of the milestones must be demonstrated within 90 days of the milestone date (i.e., the 15 percent VOC emissions reductions must be demonstrated by February 13, 1997). The EPA is currently developing a rule which will describe the information and analysis required for the milestone demonstrations. The rule is scheduled for promulgation in the summer of 1994. 1.1 Purpose The purpose of this document is to provide States with guidance on how to prepare enforceable regulations and compliance programs for their rate-of-progress plans. Developing clear, concise, enforceable rules and establishing strong compliance programs helps to ensure that the emissions reductions projected for specific control strategies are actually achieved. This document is intended to provide the minimum criteria for 4 ------- developing enforceable control measures. In addition, information sources are cited that inform States of the criteria EPA will use in evaluating stationary and mobile source regulations submitted as SIP revisions under their rate—of— progress plans. States should follow these guidelines as part of the quality assurance process involved in the establishment of their control measures. In addition, this document provides guidance to States on EPA’S forthcoming EM and CC regulations, as well as EPA’s criteria for the measurement and determination of source compliance. Compliance and enforcement issues (e.g., recordkeeping) related to the implementation of control measures needed to meet the 15 percent voc emissions reduction requirements are addressed with respect to the following EPA regulations and guidance: • VOC SIP deficiencies and model Federal RACT rule guidance. • Mobile source guidance, such as the TCZ4 SIP guidance and information documents. • Title V operating permit regulations. • Enhanced monitoring and compliance certification regulations. Because some of the guidance and regulations are in the development stage, States should track them as they evolve through the regulatory process. For these cases, this document serves as a general discussion of how EPA’ S enforcement and - compliance regulations-and directives relate to the 15 percent VOC emissions reduction requirements. As part of the SIP revisions required under Title I of the Act, States are required to make any necessary corrections to their current RACT rules (PACT fix—ups) and provide for additional PACT rules (PACT catch-ups). Although emissions reductions due to PACT fix-ups are not creditable toward meeting the 15 percent voc emissions reduction requirement, examination of past PACT rule deficiencies can help a State avoid developing new rules with similar deficiencies. Emissions reductions from new PACT catch-up rules are creditable toward the 15 percent requirement. The EPA has identified compliance issues related to States’ current programs, and has issued SIP calls to States where EPA has noted significant PACT deficiencies. This document highlights guidelines that will assist States in developing PACT rules that comply with EPA guidance. Additionally, new mobile source emissions reduction programs are required in particular ozone nonattainment areas under the CAAA. This document cites the appropriate EPA guidance and 5 ------- regulations that States should use in developing these programs. The effective use of this information will assist States in developing and implementing mobile source programs that meet the objectives of the Act. An economic incentive program (EIP) is not a mandatory requirement for any area to meet the 15 percent VOC emissions reduction requirement. However, some areas may chose to establish EIP’s in order to allow for increased flexibility and innovation in their control strategies. Therefore, this document briefly discusses some of the general design and implementation issues that the forthcoming EIP rules and guidance will address. Rule effectiveness (RE) reflects the ability of a regulatory program to achieve all the emissions reductions that could have been achieved by full compliance with the applicable regulations at all sources at all times. Many specific RE applications may be generically referred to as RE. The appropriate method for determining and using RE depends upon the purpose of the determination: control program compliance, SIP inventories, SIP improvement creditability, and SIP progress. This document provides background on these four elements of RE. Emphasis is placed on determining compliance effectiveness using a methodology developed by EPA s Stationary Source Compliance Division (SSCD), known as the SSCD Study. The SSCD Study estimates the degree of compliance with an existing regulation by comparing actual and allowable emissions for sources included in the study. The EM regulations combined with the CC requirements under Part 70 will mandate which sources must certify compliance, hoy they must certify compliance, and how often they must certify - compliance. The EM regulations will be implemented primarily through the operating permits program under Title V of the Act. Final regulations covering the implementation of the operating permits program have been promulgated. (See reference 1.) Since the EM and Cc requirements will only apply to certain stationary sources, enforcement and compliance guidance is also discussed for those sources that will not be subject to the EM and CC requirements. This guidance is part of EPA’s technical memoranda whose objective is to assist States in preparing rate—of—progress plans demonstrating how nonattainment areas are to achieve a 15 percent reduction in Voc emissions over the period 1990 to 1996. This guidance is not intended to supersede other reports or guidance, and guidance documents that address certain subjects more completely are identified herein. 6 ------- 1.2 Statutory Requirements Sections 182(b) (1) (A) and 182(c) (2) (A) of the Act specify that ozone nonattairunent areas classified as moderate or above develop SIP’s to provide for attainment of the national ambient air quality standard (NAAQS) for ozone. One element of each SIP must outline the adoption of RACT rules for designated source categories and all major sources (section 182(b)(2)]. New model RACT rules have been developed by EPA and may be used as guidelines for areas subject to the RACT “fix—up” requirements of section 182(a), and the RACT “catch-up” requirements specified in section 182(b)(2). (See reference 2.) Section 182 (a) (2) (8) of the Act requires that moderate ozone nonattainment areas meet the basic 1/14 program standard. In addition, enhanced I/N programs, which must meet a higher performance standard than the basic 1/14 program, are to be implemented in any areas classified as serious or above (section 182 Cc) (3)]. According to section 182(d) (1), severe and extreme nonattairunent area SIP’S must include a transportation control measure (TCM) program. Section 182(c) (5) presents TCN’s as potential control measures f or serious nonattairunent areas where future vehicle miles traveled (VMT) and congestion parameters exceed those predicted in the SIP. Also, other nonattainment areas may select TCM’s as part of their overall control strategy. A listing of some of the possible TcM’s, including provisions for reducing ‘fliT and improving traffic flow, is provided in section 108(f) of the Act. Stage II systems are vapor recovery systems installed at gasoline pumps to reduce vehicle refueling emissions. Section 182(b) (3) of the Act requires that all ozone nonattairunent àréas classified as moderate or above implement a Stage II vapor recovery program as a control measure. -...Section - 202 (a) (6) of the Act provides an exemption from the Stage II requirement for moderate ozone nonattainment areas after EPA promulgates on—board vapor recovery standards. After consulting with the U. S. Department of Transportation, EPA published in the Federal Register its decision against promulgating on—board vapor recovery standards (57 FR 13220, April 15, 1992), removing the possibility of a Stage II exemption for moderate areas. However, on January 22, 1993, the United States Court of Appeals for the District of Columbia Circuit ruled that EPA’s decision not to require on—board vapor recovery controls be set aside and on- board vapor recovery standards be promulgated pursuant to section 202(a) (6) of the Act. The EPA is currently studying a schedule for complying with the court’s ruling. These provisions of the Act indicate that a State’s obligation to adopt Stage II rules for moderate areas continues until on-board rules are actually promulgated. When on—board rules are promulgated, a State may withdraw its Stage II rules 7 ------- for moderate areas from the SIP consistent with its obligation under sections 182(b) (3) and 202(a)(6). Further guidance on Stage II requirements for moderate nonattairunent areas seeking redesignation will be forthcoming. The EPA is further considering how this court ruling affects a State’s obligation under section 184(b) (2) regarding Stage II or measures that get equivalent emissions reductions in the Northeast ozone transport region. The section 184(b) (2) requirement applies to all areas in the region regardless of the ozone designation or classification. Guidance concerning the Northeast ozone transport region will be issued at a later date. Title II of the Act specifies Federal mobile source regulations and control measures that must be implemented for specified ozone nonattairunent areas. For example, section 2 11(h) (1) mandates that EPA promulgate rules making it unlawful for any person during the high ozone season to sell, offer for sale, dispense, supply, offer for supply, transport, or introduce into commerce gasoline with a Reid vapor pressure (RVP) in excess of 9.0 pounds per square inch (psi). Section 2 11(h) (2) further provides that EPA may not impose a standard lower than 9.0 psi in an attainment area for ozone, unless the area was formerly a nonattainment area. Section 211(h) (4) provides a 1 psi waiver for certain gasoline blends containing 10 percent ethanol. Under section 211(k) of the Act, the sale of reformulated gasoline will be required in the nine largest cities with nonattaininent areas having the highest ozone design value, taking effect January 1, 1995. Other nonattainment areas may opt-in to this Federal reformulated gasoline program. Section 702(a) of the CAAA amended section 114(a) of theAct by establishinq stricter provisions concerning the recording, reporting, and monitoring of emissions from any part of a stationary source which emits or has the potential to emit any regulated pollutant. Section 702(b) of the CAAA amended section 114 (a) (3) of the Act by adding EM and CC requirements that apply to owners or operators of major stationary sources. The EPA is currently developing regulations to implement the EM and CC program, and proposed rules are expected in June 1993. 1.3 Organization of Document This document is organized as follows. Section 2 provides an overview of the characteristics of an enforceable rule, and cites the guidance that EPA will use, at a minimum, to evaluate the acceptability of State regulations for controlling VOC emissions from stationary and mobile sources. Once the rules have been developed and implemented, a State may want to measure the degree to which the affected sources are complying with the regulations (known as rule effectiveness) in order to identify weaknesses in the control strategies and to improve the accuracy 8 ------- of emissions estimates for the nonattainment area. Section 3 describes the four elements of rule effectiveness, including a discussion of the method for calculating compliance effectiveness. Section 4 of this document discusses how formal determinations of source compliance with EPA regulations will be made, which provides the basis for evaluating rule effectiveness. Appendix A provides definitions for terms used throughout this document. Appendix B provides a checklist that States may use to evaluate the acceptability of their rules. 9 ------- 10 ------- 2.0 ESTABLISHING AN ENFORCEABLE STATE RULE When States establish regulations as part of their SIP’s to control stationary or mobile sources, the rules must undergo a review by EPA to determine their acceptability. The general criteria that are used to evaluate a rule take into account the overall clarity and completeness of the rule. The rule must clearly indicate what limits or standards apply to what sources, and must outline enforceable compliance procedures (i.e., compliance test methods and inspections). In addition, the rule must specify the time frames within which the provisions must be met. Test methods, monitoring, recordkeeping, and reporting requirements must be specified to establish the procedures for determining a source’s compliance status. In addition to clarity, simplicity is an important characteristic of a rule because complex rules are more likely to be misunderstood and violated. Appendix B provides a checklist for States to use as guidance when developing rules to meet EPA requirements. General characteristics of an enforceable rule include: • A specific statement defining which sources comprise the regulated universe. • An established emissions standard or limit that is consistently applied to regulated sources. • A clear statement of the compliance period. • A description of the test methods and monitoring procedures used to• evaluate compliance ‘ dt1tthe - applicable limit. • Conversion .factors to convert test data inth unitS of the applicable standard (i.e., a calculátio óonversion procedure to determine compliance). • Nonitoring, recordkeeping, and reporting requirements that are consistent with the compliance time frame. • Penalties (e.g., fines, sanctions) for sources in violation. • Exemptions from the rule. 2 • 1. Stationary Source Regulations The Act specifies that moderate and above nonattainment area SIP’s must include RACT regulations for designated source categories and all “major new or modified sources.” The EPA has issued control technique guideline (CTG) documents that contain information on recommended air pollution control techniques and 11 ------- their costs for many industrial source categories. A summary of the existing CTG documents is provided in the EPA document entitled Guidance for Growth Factors. Projections and Control Strategies for the 15 percent Rate-of-Progress Plan . (See reference 3.) The CTG’s provide guidance to States for developing their RACT rules. The CTG’s represent EPA’s assessment of the degree of emissions reduction that is reasonable for a specific source category. Upon publication of a CTG document, States must submit a SIP revision that incorporates regulations for the applicable source category. The CTG guidance is not binding; a State may elect to follow the guidance or, alternatively, may choose to adopt regulations which differ from the CTG. The “alternative” RACT rule must be approved by EPA in the initial SIP submittal or in a SIP revision. It should be noted that the major source size cutoff is lower for higher ozone nonattainment area classifications. For example, in moderate ozone nonattaininent areas, major sources are defined as those emitting 100 tons per year (tpy) or more, whereas in serious nonattainment areas, the size cutoff for a major source is 50 tpy. Table A—i presents the major source size cutoffs for classified and nonclassified nonattainment areas and the ozone transport region nonattainment and attainment areas. Common RACT Rule Deficiencies The EPA issues a SIP call to a State pursuant to section 110(a) (2) (H) when it finds significant deficiencies in a State’s RACT rule(s). A deficiency involves a rule or portion of a rule that is less stringent than RACT recommendations defined by a CTG document. The publication èfltit1ed Issues Relating to VOC Requlatiori Cutpoints, Deficiencies, and Deviations (see reférénce 4), lists the most prevalent ozone SIP deficiencies identified by EPA. Most of the -revisions to. . RACT rules required by the 1988 and 1989 SIP calls havebeen carried out, although some deficiencies still exist. -In the event that these deficiencies are not corrected within 2 years after a finding of deficiency is made, the Act authorizes EPA to prepare a Federal implementation plan (FIP) for the negligent area. Described below are some of the more prevalent RACT deficiencies identified by EPA. States should be aware of these common RACT deficiencies while establishing their RACT rules so they can avoid future problems. Under the pre—ainended Act, RACT was required for sources not regulated by a CTG that have the potential to emit 100 tpy of a regulated pollutant. Some States have mistakenly interpreted this provision as applying to individual emissions units emitting 100 tpy or more, but EPA interprets “non—CTG source” as the aggregate of all the nonregulated sources at the plant. 12 ------- Many proposed State regulations specif led a greater number of RACT exemptions than those recommended in the CTG documents. The exemption cutoff s established in some cases were not clearly defined, which led to loose interpretations of the exemption cutoffs. Many rules specified an inaccurate vapor pressure cutoff, which resulted in some photochemically reactive VOC’s escaping regulation. Coating rules for VOC’s specify an emissions limit that is usually expressed as kilograms (kg) of VOC/liter of coating (less water and exempt solvents) (pounds of VOC/gallon (gal) of coating (less water and exempt solvents)]. Many rules have not expressed these limits as equivalent kg VOC/liter or pounds of VOC/gal of solids as applied. The coating limit must be expressed in this form (i.e., as-applied solids basis) in order to make a compliance determination when cross-line averaging, emissions trading, add-on control equipment, and/or credit for improved transfer efficiency are allowed. Additionally, definitions involved in a majority of VOC coating rules have been found to be unacceptable or ambiguous. Compliance time frames associated with a particular emissions limit must be specified, and records must be kept consistent with this compliance period to determine compliance with the emission limitation. Missing or deficient records render an accurate evaluation of compliance status impossible. Also, the use of the most current EPA—approved test methods is required, unless States submit alternative rnethods that are formally approved as part of the SIP. Model VOC PACT Rules Model Federal VOC PACT rules are available to guide States in developing rules for controlling VOC emissions from source categories covered by CrG documents. A State may obtain a copy of the model PACT rules from its EPA Regional Office. (See reference 5.) These model rules will serve as the basis for FIP’s for areas failing to completely address deficiencies in their existing PACT rules. Most of the previously released CTG documents do not contain compliance provisions. However, the model PACT rules include provisions for compliance certification, monitoring, recordkeeping, and reporting, as well as the test methods and procedures that enable a determination of compliance status. - 2.2 Mobile Source Regulations In addition to stationary source controls, ozone nonattainment areas must adopt rules to reduce emissions from mobile sources. As with stationary source rules, effective State mobile source control measures should follow the general criteria outlined in section 2.0 of this document, which are the basis of 13 ------- any enforceable control program. Specific mobile source provisions must be included in SIP’s for particular nonattairunent area classifications. The measures that are required differ by nonattainment area classification, and are outlined in the General Preamble. (See reference 6.) It should be noted that the RVP and reformulated gasoline programs are both Federal programs that will go into effect without State action. There is no statutory requirement that States adopt their own version of these programs under State law. The following discussion presents the various State and Federal mobile source programs and refers the reader to the appropriate program development guidance. Inspection and Maintenance (I/M) Programs The EPA is required to establish minimum performance standards for I/M programs. Final regulations were published on November 5, 1992 in the Federal Register . (See reference 7.) Marginal ozone nonattaiñment areas with current or previously required I/M programs are required to submit SIP revisions necessary to meet EPA’S existing basic I/M program standards, which will be specified in 40 CFR Part 51, Subpart S. Moderate ozone nonattainment areas must implement a basic I/M program regardless of whether an I/H program was previously required. For areas classified as serious and above with a 1980 population of 200,000 or more, an enhanced I/H program must be implemented. This enhanced I/H plan must meet higher performance standards than the basic I/H program. These standards, will also be described in 40 CFR Part 51. In addition, guidance on the costs and benefits of enhanced I/M programs has been released by EPA in draft form. (See reference 8.) - Stage II Vapor Recover , Control Programs Owners or operators of gasoline dispensing systems that are subject to Stage II controls are required to install gasoline dispensing pump vapor control devices. 2 These systems are designed to control VOC releases, including releases of benzene and other toxics, during the refueling process of motor vehicles. The Act mandates that all areas classified as moderate and above for ozone nonattaininent implement a Stage II program as a control measure. Two documents are available to guide States in developing and implementing acceptable Stage II programs. Technical information on Stage II programs is available in a 1991 2 Although Stage II technically is a stationary source control measure, it is included with the mobile source regulations in this document because the Office of Mobile Sources is responsible for Stage II enforc ’nent activities. In addition, EPA has recommended that the MOBILE5 model be used to calculate emission factors for estimating refueling emissions. 14 ------- document entitled Technical Guidance — Stage II Vapor Recovery Systems for Control of Vehicle Refueling Emissions at Gasoline Dispensing Facilities . (See reference 9.) A second document, Enforcement Guidance for Staae II Vehicle Refueling Control Programs (see reference 10), establishes the recommended elements for an acceptable Stage II program. These criteria include: • Establishment of training and public education programs. • Identification of facilities which will be subject to Stage II requirements. • Data collection (recordkeeping) to monitor compliance. • Periodic inspections to ensure compliance. • Establishment of appropriate penalties for sources violating the regulations. Stage II vapor recovery programs are rated based on an in— use effectiveness value which is the control efficiency of the system multiplied by the RE value determined for the system. The RE value accounts for efficiency decreases associated with defects in the installation and/or operation and maintenance of the system. All Stage II systems certified in California have been shown to operate with at least 95 percent control efficiency, a value which must then be multiplied by the appropriate RE value to yield the appropriate in—use effectiveness value. For example, using the 80 percent default RE value for a system that is certified upon installation would yield an in—use-effectiveness value of 76percent (i.e., 0.80x 0.95). However, a State can use an 86 percent in-use effectiveness value if no gasoline dispensing-facilities are exempt from the Stage II requirements, all below—ground vapor piping systems are 100 percent properly installed, and the vapor piping systems are inspected annually. For details concerning these requirements, the reader should refer to the technical guidance cited previously. Transportation Control Measures (TcM’s According to the Act, TcM’s will likely be necessary elements of control strategies for many nonattainment areas. A listing of some of the possible measures to be implemented is found in section 108(f) of the Act. These plans describe strategies to reduce vehicle trips, induce changes in the type of vehicles used, shift travel time, and/or improve traffic flow. Two EPA documents comprise the guidance focusing on identifying, evaluating, implementing, monitoring, and enforcing Tal’s: Transportation Control Measures: State Implementation 15 ------- Plan Guidance (see reference 11), and Transportation Control Measure Information Documents . (See reference 12.) Transportation control measures should provide the following so that EPA can approve the measures in a SIP submittal: • A complete description of the measure and, if possible, its estimated emissions reduction benefits. • Evidence that the measure was properly adopted by a jurisdiction(s) with legal authority to execute the measure. • Evidence that funding will be available to implement the measure. • Evidence that all necessary approvals have been obtained from all appropriate government offices. • Evidence that a complete schedule to plan, implement, and enforce the measure has been adopted by the implementing agencies. • A description of any monitoring program to evaluate the measure’s effectiveness and to allow for necessary in— place corrections or alterations. Reid Vapor Pressure (RVP ) The Act mandates that EPA promulgate regulations pertaining to the handling of gasoline with an RVP in excess of 9.0 psi during the peak ozone season • In additi6n, :thè Aet further states that EPA may not establish a standardlower than 9.0 p i in an attainment area for ozone, unless the area had been redesignated attainment from a former nonattajnaent area. In the Phase II volatility rul making (see reference 13), EPA established Federal RVP standards for 1992 and beyond; the maximum RVP allowed under this rule is 9.0 psi. However, for particular ozone nonattainment areas, EPA stipulates a standard of 7.8 psi. The EPA recently revised this regulation on December 12, 1991, to conform with section 211(h) of the Act. (See reference 14.) The EPA document entitled Enforcement of Volatility Reaulations — questions and Answers (see reference 15), addresses questions concerning how EPA intends to implement and enforce the gasoline volatility regulations. Topics cover the applicable RVP standard, regulated parties, defenses, test and sampling methods, inspections, and notice of violations. A final section deals with the relationship between State volatility programs and Federal volatility standards. A State may adopt and enforce a more stringent RVP standard only if its SIP so provides. The EPA 16 ------- may approve such a SIP revision upon a finding that the more stringent State RVP standard is necessary to achieve the applicable NAAQS (section 211(c)(4)]. For a thorough description of these issues and a listing of ozone nonattairiment areas and their required RVP standards, refer to the above referenced document. Reformulated Gasoline Proaram Section 2 11(k) of the Act mandates that EPA promulgate regulations prohibiting the distribution and sale of conventional gasoline in particular ozone nonattainment areas. The CAAA require the sale of gasoline, that has been reformulated to be less polluting, in the nine largest cities having designated nonattainment areas with the highest ozone design values and any nonattaizunent areas reclassified as severe. This prohibition becomes effective January 1, 1995. Proposed provisions for the reformulated gasoline program were published April 16, 1992 in the Federal Register (FR). (See reference 16.) The Federal reformulated gasoline program will be extended to additional ozone nonattainment areas upon application of the Governor of the State to EPA (“opt-in areas”). 2.3 Economic Incentive Programs (EIP’s) Section 182(g) (4) (B) of the Act requires EPA to promulgate rules for EIP’s. The proposed rules were published February 23, 1993 at 58 FR 11110. (See reference 17.) A State with an extreme ozone nonattainment area must submit an EIP when it fails to submit a milestone compliance demonstration or to meet an applicable rate—of—progress milestone. In additionr EIP’ s’ are identified as an-option for-States to .select.upon such fai1ür s in serious and severe ozone nonattainment areas. Discretionary EIP’s may be implemented by a State, as explicitly allowed for in sections 110(a) (2) (A) .and 172(c) (6) of the Act, for stationary, area, and mobile sources. The purpose of this section is to briefly discuss the forthcoming EIP rules (for mandatory EIP’s) and guidance (for discretionary EIP’s) as they will address some of the general design and implementation issues related to approvable EIP’s. The EPA’s upcoming rules and guidance are intended to ensure that EIP’s will result in real and quantifiable emissions reductions and that such reductions will be surplus to reductions required by, and credited to, other SIP provisions to avoid double-cow ting of reductions. Additionally, the rules are intended to ensure that such programs contain adequate and appropriate compliance requirements to ensure that programs are enforceable and that reductions are permanent within the time frame specified in the program. The rules are not intended to limit the flexibility and innovation of such programs. 17 ------- The creditability of emissions reductions obtained under EIP’s toward the 15 percent VOC emissions reduction requirements is discussed in the EPA document entitled Guidance on the Relationship Between the 15 Percent Rate-of-Proqress Plans and Other provisions of the Clean Air Act . (See reference 18.) States should keep in mind that reductions from EIP’s, must occur bef ore November 15, 1996, to be creditable toward the 15 percent VOC emissions reduction requirements. Post-1996 VOC reductions from EIP’s will be addressed in forthcoming guidance on the post- 1996 rate-of—progress plans. Baseline EIP Issues Many types of EIP’s require an emissions level as a starting point for the program. This baseline level is required to administer the program and measure the program’s level of compliance with its stated emissions reduction goal. The total emissions level used as a starting point in an EIP is referred to as the EIP baseline. For instance, a marketable allowance program with an emissions cap must initially allocate some level of allowable emissions to affected sources. After the program begins, affected sources may adjust their individual emissions cap by buying or selling emissions allowances from other sources. All affected sources must periodically demonstrate that they are in compliance with their emissions cap, as adjusted by trading. The EPA is currently considering allowing the States considerable flexibility in determining any baseline used as a part of an Eli ). Under certain circumstances, a State may choose to establish an EIP baseline different than 1990 actual emissions. In such cases, an EIP baseline may be established as a function of actual emissions, allowable emissions, a combination of actual and allowable emissions, or some other basis. A State may want to establish the EIP baseline based on a consideration of equity, economic conditions, or political viability. However, it should be noted that the State must use the 1990 actual base year inventory as the baseline for the State’s rate—of—progress plan. This issue is discussed in the EPA document entitled Guidance on the Adiusted Base Year Emissions Inventory and the 1996 Taraet for the 15 Percent Rate— of-Proaress Plans . (See reference 19.) Emissions Quantification Economic incentive programs require the development and use of accurate, reliable, and replicable methods to quantify emissions, including baseline emissions. Such methods should address: • The general conceptual approach to quantification. • The averaging time of the data to be used. 18 ------- • The means by which shutdowns; operational downtime; and batch, seasonal, and cyclical operations are to be accounted. • Appropriate sources of data. • The adequacy of the quality of the data. The selected approach to emissions quantification should be the most effective for a particular source type. Potential approaches include direct measurement of emissions, either continuously or periodically; equations which are a function of process or control system parameters, ambient conditions, and throughput or production rates; mass balance calculations which are a function of inventory, usage, or disposal records; or any combination of such approaches. It is expected that the forthcoming rulemaking and guidance will not require the use of any particular quantification approach, but will establish criteria for selecting quantification approaches for different general types of sources. This will help provide reasonable certainty and consistency among programs with regard to emissions quantification. Long-Term Averaging The EPA requires that typical summer weekday emissions be used in constructing the rate—of—progress plan and attainment demonstrations. States wishing to incorporate long—term averaging (i.e., longer than 24—hours) to quantify emissions in their EIP will be required to ensure that the EIP: • Is consistent with the rate—of—progress plan and attainment demonstrations. • Is accompanied by a demonstration that the aggregate effect in terms of daily emissions and ambient pollutant concentrations is equivalent to that which would be obtained with a 24—hour averaging time. • Contains additional constraints to ensure equivalency with all applicable RACT requirements. The EPA anticipates the need f or additional guidance on criteria for equivalency demonstrations, outlining the type of data that a State would need to demonstrate statistical associations between short— and long—term averaging times. 19 ------- Criteria for Monitoring, Recordkeeping, and Reporting Economic incentive programs are inherently more flexible and less prescriptive than traditional technology or performance standards and, therefore, depend more heavily on monitoring, recordkeeping, and reporting to ensure compliance and provide for adequate enforcement. Because a wide range of monitoring methods are available to show compliance for different sources, EPA expects to leave the selection of the most appropriate approach to the State in designing a program. However, EPA expects to provide criteria on the selection of appropriate monitoring methods, as well as recordkeeping and reporting requirements for each affected source category. The above discussion of EPA’S current position regarding EIP’s is not official policy, but does reflect EPA’s current approach towards developing the EIP rules. The final EIP rules, when promulgated, may differ from the above discussion. 20 ------- 3.0 RULE EFFECTIVENESS Rule effectiveness (RE) reflects the ability of a regulatory program to achieve all the emissions reductions that could have been achieved by full compliance with the applicable regulations at all sources at all times. The appropriate method for determining and using RE depends upon the purpose of the determination: control program compliance, SIP inventories, SIP improvement creditability, and SIP progress. Many specific RE applications may be generically referred to as RE. The following common uses fall under the generic umbrella RE. • Identifying and addressing weaknesses in control strategies and regulations related to compliance and enforcement activities is called compliance effectiveness. These applications fall under the purview of EPA’S Stationary Source Compliance Division (SScD). • Improving the accuracy or representativeness of emission estimates across a nonattairnuent area is called inventory rule effectiveness. When used in a base year SIP (the usual application), it is also called base year inventory RE. When used for projections beyond the base year to develop rate—of-progress plans and demonstrate attainment, it is called projection year inventory RE. • Rule effectiveness improvements are measures taken to improve rule compliance and affect emission reductions as part of a rate-of-progress emission reduction program. • Measuring, defining, and refining the control strategy process to achieve the- required emission reductions designated in the CAA is more accurately called SIP effectiveness. This section provides background on all four elements of RE; however, the discussion focuses on the determination of compliance effectiveness. The EPA is developing detailed guidance on the above applications of RE in a forthcoming document entitled, Rule Effectiveness: Integration of Inventory Compliance, and Assessment A p1ications . This document will be released in the summer of 1993. 3.1 Compliance Effectiveness Compliance effectiveness is a determination made to evaluate the compliance (or noncompliance) of a particular source category in a single geographic area using the SSCD Protocol Study approach. The SSCD study methodology is detailed in a December 21, 1992 EPA memorandum. (See reference 20.) The study results help to identify specific implementation problems which need to be addressed by the State and EPA compliance and enforcement 21 ------- staff in order to achieve greater rule effectiveness in the future. Stationary Source Compliance Division (SSCD) Study The SSCD Study procedure consists of two phases. The first phase involves field inspection of a representative number of sources, whereby all applicable rules and policies are identified and a determination of compliance status is made. The second phase involves an office evaluation of the specific components of rule implementation. The RE and compliance effectiveness calculations are based on a comparison of actual emissions to the allowable emissions for sources included in the study. Emissions must be documented and the calculations must be based on emissions testing, sampling, and usage data. The SIP effectiveness calculations are based on a comparison of baseline, current and projected emissions as determined in the base year inventory, the current emissions inventory and projections of uncontrolled growth and emissions after control by the regulation. Starting in 1989, RE studies were performed for single point source categories according to the SSCD study protocol. The most prominent implementation problems revealed in the studies involved: • Inspection frequency. • Compliance determinations. • Inspection thoroughness. • Regulation exemptions. • Variances. • Permit loopholes. • Reporting and recordkeeping discrepancies. • Procedures to identify unregistered (or unknown) sources that are subject to regulation. While the SSCD study provides a good indication of the compliance of a certain source category, it cannot be used to determine compliance status per Se. In other words, it cannot be used as an enforcement I subjecting sources with an RE value below a certain limit to fines or sanctions. Section 4 of this document discusses EPA’ s provisions for determining source compliance. 22 ------- 3.2 Inventory Rule Effectiveness Base year inventory RE is an adjustment to estimated emissions data to account for emission underestimates due to compliance failures and the inability of most inventory techniques to include these failures in an emission estimate. The RE adjustment is a category-specific, emission adjustment applied to both point and area sources operating under emission control rules. By definition, all source categories for which a regulation exists should have an RE value between zero and 100 percent. Inherent in past emissions inventories was the assumption that regulatory programs are 100 percent effective. However, EPA has determined that 100 percent RE is uncommon. Therefore, actual emissions reported in the SIP were underestimated because RE was overestimated. Guidance is available on the estimation and application RE values to the base year emissions inventory. (See reference 21.) Rule effectiveness must also be factored into the projected inventories that support the SIP rate—of—progress plans. New control measures cannot be assumed to be 100 percent effective; the emissions estimates based on the emission control strategies must account for the same effects of noncompliance as did the base year inventory. 3.3 Rule Effectiveness Improvements A rule effectiveness improvement is an ..improvement in the implementation of a rule for a regulatory program. It refers to a comparison of the implementation of the rules before the improvement to the implementation of the rules after the - improvement. Rule effectiveness improvements must reflect actual emissions reductions. An RE improvement can take several forms, ranging from more frequent and in depth training of inspectors to larger fines for sources that do not comply with a given rule. The purpose of an RE improvement is to provide States with additional measures to achieve actual emission reductions for their SIP’S. Achieving creditable emissions reductions through RE improvements is discussed in the EPA document entitled Guidance for Growth Factors. Prolections and Control StratecTies for the 15 Percent Rate-of—Proqress Plan . (See reference 22.) More detailed information will be provided in the forthcoming document entitled, “Rule Effectiveness: Integration of Inventory, Compliance, and Assessment Applications.” 3.4 SIP Effectiveness SIP effectiveness is defined as the ability of the attainment plan to achieve the planned emissions reductions. It is estimated by comparing actual emissions reductions to the 23 ------- projected emissions reductions. By contrast, RE estimates the degree to which an existing rule is working. High SIP effectiveness may be due to over compliance, unrelated source process changes, or overestimated growth. Low SIP effectiveness may be caused by inadequate rules; poor compliance, emission violations, variances, and enforcement problems; and unrealistic baseline emissions, or underestimated growth. SIP effectiveness evaluations can be used in con]unction with compliance program effectiveness to determine where implementation, emission projections and/or rule development resulted in emission shortfalls. Evaluating SIP effectiveness during implementation of measures contained in the 15 percent rate—of—progress plan (or attainment plan) may provide the State information to enable revision of the SIP as necessary to achieve the emissions reductions originally contemplated. 24 ------- 4.0 DETERMINING COMPLIANCE WITB EPA REGULATIONS The degree of compliance with established VOC regulations is a significant factor in determining whether the emissions reductions required under the rate—of-progress plan will be achieved. Data collected and reported under monitoring, recordkeeping, and reporting requirements will assist in certifying the emissions reductions. This section discusses existing monitoring, recordkeeping, and reporting provisions and briefly describes the forthcoming enhanced monitoring (EM) 3 and compliance certification (CC) regulations. 4.1. Current Regulations Related to Compliance Certain sources are already required under new source performance standards to conduct monitoring and submit reports detailing compliance and performance test methods. These standards and the specific sources to which they apply are described in 40 CFR Part 60. (See reference 23.) General source surveillance provisions are ‘outlined in 40 CFR Part 51, Subpart K (see reference 24), including the emissions monitoring, reporting, and recordkeeping requirements of SIP’S. Continuous emissions monitoring is required for a small number of specific source types under this regulation. In addition, some CrG documents provide recommended monitoring and recordiceeping provisions for the applicable source category. The forthcoming EM and CC regulations described below are being developed to complement and expand upon the above mentioned rules, targeting the most significant sources of air pollution. 4.2 Enhanced Monitoring and Compliance Certification Regulations Enhanced monitoring refers to monitoring by a source to certify continuous compliance -with emissions iimitatIons and standards. “Enhanced” means modified, if necessary, -to meet the specifications outlined by the forthcoming EM regulations as required by the CAAA. When promulgated, the EM regulations combined with the CC requirements of Part 70 viii mandate which sources must certify compliance, how they must certify compliance, and how often they must certify compliance. In accordance with section 114(a) of the Act, this certification is anticipated to apply to pollutants for which the source has been defined as major, occur no less than annually, and be based on information collected by an enhanced monitoring protocol. The necessary components that must be contained in a compliance certification include: 3 Enhanced monitoring in this context refers to specific monitoring requirements for stationary sources and should not be confused with enhanced air quality monitoring. 25 ------- • Identification of the applicable requirement that is the basis of the certification. • The method used for determining the compliance status of the source. • The compliance status. • Whether compliance is continuous or intermittent. It is expected that the EM regulations will be implemented primarily through the Title V operating permit program. The objective of the operating permit program is to implement, and to ensure compliance with, the stationary source requirements of the Act. Monitoring, recordiceeping, and reporting are some of the required elements of permits issued for a regulated source. The forthcoming EM regulations will further clarify these requirements as they relate to the Title V operating permit program. An enhanced monitoring protocol may include all sampling, measurement, analysis, recording, recordkeeping, and reporting devices or procedures; and all testing, calibration, operation and maintenance, data reduction, calculation, quality assurance, and corrective action procedures. An enhanced monitoring protocol provides a reasonable level of assurance that any period of noncompliance will be detected. Under the EM rules, the source owner or operator will propose an enhanced monitoring protocol based on the selection criteria outlined in the rules. If an adequate monitoring system 4.s not in place for an existing source, the permit application must describe plans to establish an approvable protocol. Permitting authorities.wil-ltdetermine whether or not the proposed enhanced monitoring protocol meets the enhanced monitoring criteria. New sources will be required to adopt EM requirements in preconstruct ion permits. The EPA will not specify a particular type of monitoring protocol for each source category. However, certain criteria will be included in the EM regulations to ensure that a monitoring protocol is sufficiently reliable. It is important to note that certain sources are already required under other established regulations to employ an approvable enhanced monitoring protocol. (See reference 24.) In certain cases, recordkeeping may serve as part of the enhanced monitoring protocol to determine compliance (e.g., where compliant coatings are used to meet a VOC standard at an uncontrolled source). Alternatively, sources may select process or control system parameter monitoring protocols provided they can be correlated to the emissions limit. Permits for sources 26 ------- using process or control monitoring protocols must specify an operating parameter standard that will be maintained. For example, the permit might stipulate a minimum operating temperature for an incinerator. Another option for sources, when choosing a monitoring protocol, is a continuous emissions monitoring system that employs a direct emissions monitoring technique. Continuous emissions monitoring systems designed to monitor VOC emissions are available and may be used to certify compliance. 27 ------- S REFERENCES 1. 57 FR 32250. “State Operating Permit Program; Final Rules.” July 21, 1992. 2. “Volatile Organic Compounds Rules for Reasonably Available Control Technology,” Memorandum from G.T. Helms, U.S. Environmental Protection Agency, Ozone/CO Programs Branch, Research Triangle Park, NC, to Regional Division Directors. June 24, 1992. 3. Guidance for Growth Factors Projections, and Control Strategies for the 15 Percent Rate-of—Progress Plans , EPA-452/R-93—002, U.S. Environmental Protection Agency, OAQPS, Research Triangle Park, NC. March 1993. 4. Issues Relating to VOC Regulation Cutpoints, Deficiencies. and Deviations . U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. May 1988. 5. Reference 2. 6. 57 FR 13498. “General Preamble, Implementation of Title I, Clean Air Act Amendments of 1990.” April 16, 1992. 7. 57 FR 52950. “Inspection and Maintenance Program Requirements.” November 5, 1992. 8. I/N Costs. Benefits. Impacts and Analysis . Draft. U.S. Environmental Protection Agency, Office of Mobile Sources, Ann Arbor, MI. February 1992. 9. Technical Guidance — Stage II Vapor Recovery Systems for Control of Vehicle Refueling Emissions at Gasoline Dispensing Facilities . EPA—450/3—91—022a. U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. November 1991. 10. Enforcement Guidance for Staae II Vehicle Refue1in Control Programs . U.S. Environmental Protection Agency, Office of Mobile Sources, Ann Arbor, MI. October 1991. 11. Transportation Control Measures: State Im 1ementation Plan Guidance . U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. September 1990. 12. Transportation Control Measure Information Documents . U.S. Environmental Protection Agency, Office of Mobile Sources, Ann Arbor, MI. March 1992. - 29 ------- 13. 55 FR 23666. “Volatility Regulations for Gasoline and Alcohol Blends Sold in Calendar Years 1992 and Beyond.” June 11, 1990. 14. 56 FR 64704. “Regulation of Fuels and Fuel Additives: Standards for Gasoline Volatility.” December 12, 1991. 15. Enforcement of Volatility Reaulations —— Questions and Answers . U.S. Environmental Protection Agency, Office of Mobile Sources, Field Operations and Support Division, Ann Arbor, MI. May 1992. - 16. 57 FR 13416. “Regulation of Fuels and Fuel Additives; Standards for Reformulated and Conventional Gasoline.” April 16, 1992. 17. 58 FR 11110. “Economic Incentive Program Rules.” February 23, 1993. 18. Guidance on the Relationship Between the 15 Percent Rate—of— Progress Plans and Other Provisions of the Clean Air Act , EPA-452/R-93-007, U.S. Environmental Protection Agency, OAQPS, Research Triangle Park, NC. May 1993. 19. Guidance on the Adlusted Base Year Emissions Inventory and the 1996 Target for the 15 Percent Rate-of—Progress Plan , EPA-452/R-92-005, U.S. Environmental Protection Agency, OAQPS, Research Triangle Park, NC. October 1992. 20. “Revised Rule Effectiveness National Protocol,” Memorandum from John B. Rasnic, U.S. Environmental Protection Agency, Stationary Source Control Division, Washington, DC, to EPA Regional Office Division Directors. December 21, 1992. 21. Guidelines for Estimatina and Airnlvina Rule Effectiveness for Ozone/CO State Im plementation Plan Base Year Inventories . EPA—452/R-92-O1O. U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Ozone and Carbon Monoxide Programs Branch, Research Triangle Park, NC. November 1992. 22. Reference 3. 23. 40 CYR Part 60. Standards of Performance for New Stationary Sources . 24. 40 CFR Part 5].. Reauirements for Preparation, Adoption, and Submittal of Implementation Plans . 30 ------- APPENDIX A: DEFINITION OF TERMS This appendix provides the specific definitions of EPA terms as they are used in this guidance. Different EPA programs sometimes use different definitions of the same term (e.g., major source). This appendix notes where conflicts occur in the definition of a term used in this guidance. These definitions are presented for the purposes of this guidance document only; the reader is advised to refer to specific regulations, policies, and sections of the Act to obtain complete definitions for the program or title of interest. Attainment Demonstration Moderate and above ozone nonattaininent areas must demonstrate that the reductions specified in the revised SIP will result in modeled air quality for the nonattainment area that achieves attainment by the applicable attainment date. This requirement can be met through the application of an EPA-approved model and EPA-approved modeling techniques described in the current version of the Guidance on Air Quality Models, 4 which is currently under revision. Two models are suggested: the UAM or the Empirical Kinetic Modeling Approach (EKMA). The EPA requires the submittal of attainment demonstrations employing U1 }1 for serious and above areas and multi-State moderate areas as part of the SIP revision due by November 15, 1994. Attainment demonstrations based on EKMA for moderate nonattainment areas within a single state (intrastate moderate areas) must be submitted as part of the SIP revision due by November 15, 1993, unless the State chooses to use UAI4, in which case the demonstration must be submitted as part of the SIP revision due by November 15, 1994. The use of EKMA is described in Guideline for Use of City-Specific E 1A in Preparing Ozone SIP’s, as well as the aforementioned guideline that is under• revision. This document, and the appropriate Regional Office, should be consulted before an analysis is conducted with this modeling approach. The use of UAN is described in Guideline for Regulatory A p1ication of the Urban Airshed Model.’ ‘ Guidance on Air Quality Models (Revised) , EPA—450/2—78— 027R, July 1986 (currently under revision). 5 Guideline for Use of City—Specific ERMA in Preoarina Ozone SIP’s , EPA-450/4—80-027, U.S. Environmental Protection Agency. 1980. ‘ Guideline for Regulatory A lication of the Urban Airshed Model , EPA-450/4—91—013, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. A-]. ------- Attainment Determination The EPA must determine within 6 months after the applicable attainment date whether an area has attained the NAAQS for ozone. The attainment dates are as follows: • Marginal areas —— November 15, 1993. • Moderate areas —- November 15, 1996. • Serious areas —— November 15, 1999. • Severe areas —— November 15, 2005 (severe areas with a 1986-1988 ozone design value of 0.190 up to, but not including 0.280 parts per million have until November 15, 2007). • Extreme areas —- November 15, 2010. In making the attainment determination, EPA will use the most recently available, quality—assured air quality data covering the 3—year period preceding the attainment date. For ozone, the average number of exceedances per year after adjustment for missing data are used to determine whether the area has attained. Basic Inspection and Maintenance (I/Mi Programs requiring the inspection of vehicles including, but not limited to, measurement of tailpipe emissions, and mandating that vehicles with tailpipe emissions higher than the program cutpoints be repaired to pass a tailpipe emissions retest. Basic I/M programs must be at least as stringent as the requirements set out in section 182 (a) (2) (B). Compliance Certification A demonstration of compliance through the use of an enhanced monitoring protocol, adhering to the provisions outlined in section 114(a) of the Act. Compliance certification Report A report submitted by a .. stationary source to the permitting authority at least annually, demonstrating compliance with the applicable requirements ôf ‘the CAAA. Continuous Emissions Monitoring System The equipment used to sample, analyze, and provide a permanent record of emissions on a continuous basis. Control Techniaue Guideline (CTG ) Documents prepared by EPA to meet the requirements of section 108 of the Act which recommend RACT for particular categories of stationary sources • These include 29 CTG’S published prior to 1990 and 13 new CTG’s mandated by section 183 of the Act. These documents provide information relating to the cost of installation and operation, the emissions reduction benefits, energy requirements, and the environmental effects of reasonably available emissions reduction techniques applicable to a particular category of existing sources. Each CTG category document recommends RACT controls based on the “presumptive norm” for a particular source category. A-2 ------- Enhanced InsDectjon and Maintenance A program including, at a minimum, computerized emissions analyzers, on—road testing, denial of waivers for warranted vehicles or repairs related to tampering, a $450 cost waiver requirement for emissions-related repairs not covered by warranty, and inspection of the emissions control diagnostic system (when required by EPA). In addition, enforcement through registration denial, annual inspections, and centralized testing are required, unless less stringent measures can be proven fully effective by the State (or, in the case of enforcement, more effective). Enhanced Monitoring The monitoring of emissions limitations and standards by a source to certify compliance. “Enhanced” refers to modified, if necessary, to meet the requirements described below for an enhanced monitoring protocol. Enhanced Monitoring Protocol An enhanced monitoring protocol may include all sampling, measurement, analysis, recording, recordkeeping and reporting devices or procedures; and all testing, calibration, operation and maintenance, data reduction, calculation, quality assurance, and corrective action procedures. Major Stationary Source The Act has multiple definitions for major stationary sources depending upon the nonattainment classification and the pollutant. Section 302 of the Act defines a major stationary source as one that directly emits, or has the potential to emit, 100 tpy or more of any air pollutant. As exceptions to this rule, major stationary source emissions thresholds, as defined in Part D of Title 1of the Act, are listed in Table A-i for both VOC and NO 1 sources. Reasonably Available Control Technoloav (RACT ) The lowest emissions limit that a particular source is capable of achieving by the application of control technology that is reasonably available, considering technological and economic feasibility. RACT “Catch-ups ” The application of RACT for all applicable sources as listed in section 182(b) (2), regardless of what was previously required. Each moderate and above ozone nonattairunent area (as well as attainment areas within the ozone transport region) are subject to the PACT “catch—up” requirement of section 182 (b) (2). The new law requires any of the above areas that had not previously been required to adopt RACT consistent with all of the CTG’s to “catch-up” and apply PACT to all sources covered by a preenactment or post—enactment CTG document. Many of these areas were not previously required to apply PACT to sources covered by Group III CTG’s (CTG’s published after September 1982). In addition, areas previously considered rural A-3 ------- TABLE A-i. MAJOR SOURCE THRESHOLDS FOR OZONE NONATTAINMENT AREA CLASSIFICATIONS Ozone Nonattainment Area VOC (tpy) 6 NO (tpy) 6 Extreme • 10 10 Severe 25 25 Serious 50 50 Moderate 100 100 Moderate, in an Ozone Transport Region 50 100 Marginal 100 100 Marginal, in an Ozone Transport Region 50 100 All Other Nonattaininent Areas, an Ozone Transport Region 7 outside of 100 100 All Other Nonattainment Areas, in an Ozone Transport Region 7 Attainment, in an Ozone Transport Region : 100 50 100 100 6 tpy = tons per year 7 The other nonattainment areas are submarginal, transitional, and incomplete/no data. - A-4 ------- nonattainment, which had to apply PACT only to certain major sources in certain CTG categories under prior policy, will have to revise their SIP’s to apply PACT to all sources, including noninajor sources, that are covered by any CTG. The PACT “catch- up” provision also requires these nonattainment areas to adopt PACT rules for all major sources not covered by a CTG. Additional information on the RACT “catch—up” program will be provided in forthcoming guidance regarding the interaction of RACT rules with emissions inventories. PACT “Fix—uDs ” Corrections States are required to make under section 182(a) (2) (1) to their current RACT rules to make up for deficiencies (e.g., improper exemptions) in pre—amendment plans. Under PACT “fix-ups,” States are required to have PACT rules that comply with section 172(b) of the pre—1990 Act, as interpreted by EPA’s pre—amendment guidance. Since the RACT “fix—up” provisions refer to PACT as required by pre-amended section 172 (b), only areas subject to pre—ainended section 172 (b) need to meet the PACT “fix—up” requirement. Therefore, for nonattaininent areas that will be expanded to contain regions that were designated attainment prior to enactment, the PACT corrections are only for the original nonattainment area. The PACT “fix-up” provision essentially codifies EPA’s SIP calls, issued in May 1988 and November 1989 (as announced in the Federal Reaister on September 7, 1988 (53 FR 34500) and July 30, 1990 (55 FR 30973)]. The PACT fix—ups were due on May 15, 1991. Between May 24 and June 24, 1991, EPA’s Regional offices mailed letters to several Governors and air agency officials concerning the progress of the States in meeting PACT “fix—up” requirements and listing the outstanding deficiencies that still had not been corrected. Additional information on the PACT “fix-up” program will be provided in forthcoming. guidance regarding the interaction of PACT rules with emissions inventories. Rate-of-Proaress Plan The portion of the SIP revision due by November 15, 1993, that describes how moderate and above ozone nonattainment areas plan to achieve the 15 percent VOC emissions reduction. All moderate intrastate areas that choose to utilize the EXMA in their attainment demonstration, are also required to include their attainment demonstration in this SIP revision. Reformulated Gasoline A blend of gasoline that is certified as meeting all the requirements applicable to reformulated gasoline. These requirements have been proposed as 40 CFR Part 80, Subpart D, and include: • At least 2.0 percent oxygen by weight. • No more than 1.0 percent benzene by volume. • No heavy metals, absent a waiver by EPA. • No increase in NO emissions from baseline vehicles. A-5 ------- • Required reductions in emissions of ozone forming VOCI S. • Required reductions in toxics emissions. Compliance with the emissions requirements is determined by comparing emissions of baseline vehicles (representative model year 1990 motor vehicles) using a baseline gasoline (specified in section 211(k) of the Act] with emissions of baseline vehicles using the reformulated gasoline. The EPA’S proposed regulations provide for the use of credits to meet the above requirements under specified circumstances. Reid Vapor Pressure (RVP ) A maximum gasoline volatility level established to reduce summertime gasoline volatility. Depending on the area, gasoline RVP may not exceed 9.0 psi or 7.8 psi between May 1 and September 15, beginning in 1992. Regulations established by EPA are published in 40 CFR Part 80. Rule Effectiveness (RE ) For stationary sources, a measure of the extent to which a regulatory program achieves emissions reductions. An RE of 100 percent reflects a regulatory program achieving all the emissions reductions that could be achieved by full compliance with the applicable regulations at all sources at all times. However, regulations typically are not 100 percent effective due to limitations of control techniques or shortcomings in the implementation and enforcement process. The EPA allows the use of several different methods for determining RE including an 80 percent default value, results from EPA questionnaires, and results from an SSCD study. Stage II Gasoline dispensing devices that control VOC vapor releases during the refueling of motor vehicles. This process takes the vapors that would otherwise be emitted directly into the atmosphere during refueling, and redirects them back into the fuel storage tanks. Transportation Control Measure (TCM ) Any program that encompasses elements of transportation system management and/or transportation demand management. Transportation system management strategies generally refer to the use of low capital intensive transportation improvements to increase the efficiency of transportation facilities and services. Transportation demand management generally refers to policies, programs, and actions that are directed towards increasing the use of high occupancy vehicles (transit, carpooling, and vanpooling) and the use of bicycling and walking. Section 108(f) of the Act lists the following programs as examples of TcM’s: • Accelerated retirement of vehicles. • Activity centers. • Area-wide ridesharing. • Bicycling alternatives to motor vehicle travel. A-6 ------- • Employer—based transportation management programs. • Limitations on extended vehicle idling. • Control of extreme low-temperature cold starts. • High occupancy vehicle lanes. • Park and ride and fringe parking. • Parking management programs. • Minimization of congestion during special events. • Traffic flow improvements. • Transit improvements. • Trip-reduction ordinances. • Vehicle use limitations/restrictions. • Work schedule changes. Volatile Organic Compound (VOC ) Any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photocheinical reactions. This includes any organic compound other than those EPA has determined to have neg .igible photochemical reactivity. 8 857 Federal Register 3945, February 3, 1992. A-7 ------- APPENDIX B: CHECKLIST FOR DETERMINING THE ACCEPTABILITY OF STATE RULES 1. Does the rule clearly cite the State’s correct authority for rulemaking? ____YES NO 2. Does the rule include any uncorrected deficiencies as specified in a SIP-call? ____YES ____NO 3. Does the rule clearly define which sources are subject to the rule? ____YES ____NO 4. Does the rule document the State’s authority to install, maintain, and use emissions monitoring and control devices? ____YES ____NO 5. Are all applicable requirements identified in the permit: Emissions limits? ____YES ____NO Averaging times? ____YES ____NO Compliance schedule? ____YES ____NO Monitoring? ____YES ____NO Recordkeeping? ____YES ____NO Reporting? ____YES ____NO Operation and maintenance? ____YES ____NO Test requirements?’ ____YES ____NO 6. Is the required test method explicitly stated in the rule? ____YES ____NO ‘For examples of approved test methods, see “Test Methods or Procedures for Group I, II, and III CTG’s” in: Issues Relatinc to VOC Requlatjons. Cutpoints. Deficiencies, and Deviations , EPA, Ozone/Carbon Monoxide Program Branch, Air Quality Management Division, Office of Air Quality Management, May 25, 1988. B—i ------- 7. Is the averaging time in the compliance test method explicitly stated in the rule? ____YES ____NO 8. Is the averaging time used in the rule consistent with protecting the ambient standard (i.e., equal to or shorter than the time associated with the standard)? ____YES NO 9. If bubbling or averaging is allowed, is there an explicit description in the rule of how averaging, bubbling or equivalency is to be determined? ____YES ____NO 10. Do requests for extended averaging times for VOC sources include the criteria outlined in John O’Connor’s January 20, 1984 memo titled “Averaging Times for Compliance with VOC Emission Limits - SIP Revision Policy?” ____YES ____NO 11. Is the compliance date no later than the approved date of attainment? ____YES ____NO 12. Does the State require the source to keep records sufficient to enable a determination of compliance status? ____YES ____NO 13. Are the units of compliance (e.g., pounds of VOC/gal of coating minus water and exempt solvents) clearly stated in the rule? ____YES ____NO 14. If a compliance calculation is required to determine compliance, is the formula stated in the rule? ____YES ____NO B-2 ------- 15. Does the rule affirmatively require records to be kept and reports made? Categories of records are: Monitoring provisions for add-on control ____YES ____NO Quantity of each coating used ____YES ____NO Solids and solvents content of each coating used ____YES ____NO Allowable and actual emissions ____YES ____NO Transfer efficiencies ____YES ____NO Hours of operation of each line ____YES ____NO 16. Is it clear in what units and on what time basis the records/reports must be kept/reported? ____YES ____NO 17. Does the frequency of recordkeeping coincide with emissions/production averaging time? ____YES ____NO 18. Are the allowable exemptions clearly defined and distinguished from what constitutes a violation? YES ____NO 19. Is the calculation procedure for exemption clearly speci ied in the rule? ____YES ____NO 20. Does the rule include malfunction provisions specifying what exceedance may be excused? ____YES ____NO B-3 ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards Research Triangle Park. North Carolina 27711 28JUL 1993 MEMORANDUM SUBJECT: Correction Errata to the 15 Percent Rate—of-Progress Plan Guidance Series FROM: G.T. Helms, Chief Ozone and Carbon Monoxide Programs Branch ( -i5) TO: Air Branch Chief, Regions I—X This memorandum corrects several errors in the 15 percent rate—of—progress plan guidance series. 1. There is an error in the Table entitled, “Major Source Thresholds and Minimum Emissions Offset Ratio Requirements for Ozone Nonattairunent Area Classifications,” in the following 15 percent guidance documents: • “Guidance on the Adjusted Base Year Emissions Inventory and the 1996 Target for the 15 Percent Rate of Progress Plans” (EPA—452/R—92—005), p. A—3. - • “Guidance for Growth. Factors, Projections, and Control Strategies f or the 15 Percent Rate—of—Progress Plans” (EPA—452/R—93—002), p. A—3. • “Guidance on the Relationship Between the 15 Percent Rate—of—Progress Plans and Other Provisions of the Clean Air Act” (EPA—452/R—93—007), p. 12. • “Guidance on Preparing Enforceable Regulations and Compliance Programs for the 15 Percent Rate—of-Progress Plans” (EPA—452/R—93—005), p. A—4. The error is in the item, “All Other Nonattainment Areas, in an Ozone Transport Region.” The volatile organic compounds tons per year (tpy) should be 50 tpy rather than 100 tpy. 2. The document entitled “Guidance on the Relationship Between the 15 Percent Rate-of-Progress. Plans and Other Provisions of the Clean Air Act” (EPA—4521R-93—007), has an error concerning the creditability of certain transportation control measures. Section 5.8 of this document states the following on page 39: 1 U. 0 ------- 2 Emissions reductions resulting from TCM’s are creditable if the T M is not already federally mandated (e.g., the employee trip reduction program required under section 182 (d) (1) (B) for severe and extreme ozone nonattainment areas), or is not part of an already existing SIP. As with all other emissions reductions, emissions reductions associated with TcM’s are only creditable to the 15 percent rate-of-progress plan if they are quantifiable, real, enforceable, replicable, accountable, and occur by November 15, 1996. The correction revises the first sentence of the preceding paragraph: Emissions reductions resulting from TcM’s are creditable if the T M was not a pre—1990 control measure in an already existing SIP. As with all other emissions reductions, emissions reductions associated with TcM’s are, only creditable to the 15 percent rate- of-progress plan if they are quantifiable, real, enforceable, replicable, accountable, and occur by November 15, 1996. 3. In the document, “Guidance for Growth Factors, Projections, and Control Strategies for the 15 Percent Rate—of— Progress Plans” (EPA-452/R-93-002, March 1993), there are several errors in Chapter 6. a. On page 55, the text under the table, last sentence, “The ((20O—RE )/1O0] factor is not valid for low RE values” is incorrect and should be deleted. b. On page 57, the sentence before the heading, “Equation 5 - Projection calculated from permitted emissions rates,” (“The ((200 - RE)/100] factor is not valid for low RE values”) is incorrect and should be deleted. c. On page 57, the second and third paragraphs under the heading, “Equation 5 - Projection calculated from permitted emissions rates,” should read as follows: ------- 3 The equation for projecting emissions in this case is: [ (200— REPY ) EMIS = ER [ 100 * EMISBYO ] (5) ( 200 1? Ear ) BY,Anrnial J 100 where: EMIS = Projection year emissions ozone season typical weekday (mass of pollutant/day) ER = Projection year annual emissions cap (mass of pollutant/year) BY = Base year RE (percent) RE = Projection year RE (percent) EMIS 0 = Base year ozone season typical weekday emissions (mass of pollutant/day) EMISBY,A UI I = Base year annual emissions (mass of pollutant/year) The factor EMIS , 0 /EMIS y , converts the long—term annual emissions cap to an ozone season typical weekday emissions cap using the ratio of base year. ozone season typical weekday to annual emissions. Note that the mass units (i.e., tons, pounds) must be equivalent in both terms. These projections must also account for RE. The factor, “((200 — RE)/100],” adjusts emissions for RE. See the. explanatIon under- equation (2) for additional information about this factor. d. On page 65 under: “6. Mass Emissions Limit—Based Permits,” the second and third paragraphs should be replaced with the following: The long—term annual limits will be used for emissions projections since these are more representative of expected rather than maximum activity. These limits must be converted to reflect ozone season typical weekday conditions. Annual limits are converted using the ratio of base year ozone season emissions to base year annual emissions. Base Year Operating Conditions Ozone season emissions = 150 lb/day = 0.075 tons/day Annual emissions = 23 tpy RE =80% Projection Year Conditions Current permit = 30 tpy RE =80% ------- 4 Equation (5) is used to calculate projection year emissions as follows: ( 200 - REPI !) 100 f EMISy F2vJIS , = ER * B . (5) ( 200 — BY ) I. EMIS 8 y g.. 1 100 [ (200 — 80) 1 EMZS = 30 * f(200—80) ] * [ 0.075 ] = 0.098 tons/day= 196 100 Please share this information with your State and local air pollution control agencies. Any questions about these corrections may be addressed to Kiinber Scavo at (919) 541-3354 or Laurel Schultz at (919) 541—5511. cc: William Becker, STAPPA/ALAPCQ Kent Berry, AQMD John Bosch, TSD Ogden Gerald, TSD Phil Lorang, 014S Ned Meyer, TSD David Misenheimer, TSD David Mobley, TSD Carla Oldham, AQMD Rich Ossias, OGC David Sanders, AQMD Ki]nbér Scavo, AQMD Laurel Schultz, AQMD John Seitz, OAQPS John Silvasi, AQMD Joe Tikvart, TSD Lydia Wegman, OAQPS Dick Wilson, OMS Mary Ann Warner-Selph, TSD Howard Wright, TSD ------- itO ! UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 7 WASHINGTON. D.C. 20460 S44 , tdF MJB 23 I 3 AI AND ftADIATION M (ORANDUM SUS JECT: Guidance on Issues Related to 15 Percent Rate—of- Progress Plans FROM: Michael H. Shapiro I Acting Assistant A ministrator for Air and Radiation (ANR—443) TO: Director, Air Pesticides and Toxics Management Division, Regions I and IV Director, Air and Waste Management Divis±on, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics Division. Regions VII, VIII, IX , and X As you )cnew, section 182(b) (1) of the Clean Air Act (Act) requires States to submit, by November 15, 1993 for all ozone nonattainmerit areas classified as moderate and above, a State implementation plan (SIP) that provides for a 15 percent Juct * .Ln emissions of volatile organic compounds (VOC) by November 15, 1996. The purpose of this memorandum is to provide guidance related to these SIP submissions. Committal SIP’ffi for 15 Percent Plan Control Measures .vSzal States asked to what extent will the Environmental ProtecU Q1a. Agency (EPA) accept committal SIP’S for the measures necessáj to achieve the 15 percent reduction. Under section 110(k) I () of the Act, EPA has the authority to conditionally approve a SIP submittal based on a commitment by the State to adopt specific enforceable measures by a date certain. A previous memorandum identified specific cases in which EPA would accept commitments for submittals which veze due by November 15, 1992. For the 15 percent rate-of-progress plane, EPA will not allow commitments to adopt the measures needed to meet the 15 percent reduction requirement and any such plans would not be considered approvable. c: s1.a% m.I ------- 2 f9x Substitution for Continaencv Measures Section 3.72(c) (9) of the Act requires moderate and above ozone nonattairunent areas to adopt contingency measures by November 15, 1993. These measures would have to be implemented if the area fails to make reasonable further progress (RPP) or to attain the national ambient air quality standards (NAAQS) by the applicable attainment dat .. In addition, section 182(c) (9) of the Act requires serious and above areas to adopt contingency measures which would be implemented if the area fails to meet any applicable milestone. When triggered, the contingency measures must be implemented without further action by the State or the EPA. The “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 3.990” (57 FR 13498, April 2.6, 1992) requires that the contingency measures generally must provide reductions of 3 percent of the emissions from the adjusted baee ycar inventory. The reductions must be achieved in the year following that in which the failure has been identified. Thzs. percent represents 1 year’s worth cC redi ctions under the post—1995 rate-cf-progress requirement. The contingency measures that are required to be adopted by November 15, 1993 are for both failure to achieve RIP and failure to attain. While the contingency measures to address failure to achieve RIP must be for VOC, the contingency measures for failure to attain may be for VOC and/or NOx. Since these measures will be implemented after 19.96, and because these measures serve two purposes (i.e., failur, to achieve RIP and failure to attain), the contingency measures could provide for less than 3 percent in VOC reductions as long as some of the measures are for VOC and the area would have the difference (up to 3 percent) in NOx reducti ps Based on discussions with EP A’s Office of General 1 nsei, ‘ e have determined that States must adopt a minimum of 0.3 percent in VOC measures of the 3 percent contingency measure requirement to be legally defensible. Therefore, in an area that has demonstrated that NOx controls ar. needed for attainment, 2.7 percent of the required 3 percent could be NOx contingency measures; at least 0.3 percent must still be voc to cover the contingsmcy requirement for meeting RIP. Note that this applies to modrnt.. areas as well; moderate areas must submit an approva$. plan that shows how they will achieve the 15 percent requir.á nt but are not required to submit a demonstration that the milestone was achieved. Moderate areas, of course, must demonstrate that they have attained the NAAQS for ozone by November 15, 1996. ------- UU4/tJlj 3 In order for NOx contingency measures to be acceptable, the State must ad2 .re to EPA’s forthcoming guidance on P Ox substitution. In addition, States must show with modeling evidence that NOx reductions are needed in a particular nonattainasnt area. Therefore, in order to give States enough time to Consult EPA’S guidance On NOx substitution and to determine if NOx reductions are needed, EPA viii accept cojttal. for contingency measures that are due November 15, 1993. If the contingency measures themselves an, not included with the November 15, 1993 submittal, that submittal must include a commitment, with schedule, for contingency measures to be adopted by November 15, 1994. We believe that this is acceptable due to the fact that the earliest a contingency measure would be implemented would be in 1997 • The first attainment date and milestone date for areas that are required to adopt contingency measures is November 15, 1996. The EPA will expect all actions needed to make the measures fully effective to occur within 60 days after EPA notifies the State of its milestone failure or within 6 months of its attainment failure. Therefore, the State would not need to implement ths contingency measures until 1997 and EPA could accept measures that could not be impl.m.rntsd until 1997. Upon activation of the conting,ncy measures, reductions of up to 3 percent (or such lesser percentage that will cure the identified failure) must be achieved 1 year following the date on which the failure had been identified. The State must achieve these reductions while conducting additional control measure development and implementation as necessary to correct the shortfall if it is beyond the 3 percent the State would have already adopted. In determining what measures shou],d be implemented if less than 3 percent reduction is needed to cure th a...Lail ej all VOC contingency measures should be required first fol1 Visdby the appropriate percentage of NOx measures-that will correct the shortfall. 1 J.rcen Wiij er Provision Und - esction 182(b) (1) (A) (ii), areas can submit plans demon.t j* g less than a 15 percent emission reduction if the foiiow 7iditions an. met. First, the State must demonstrate that th has a new source reviev program equivalent to the in extreme areas [ section 182(e) ), except that a “major source” must include any source that salt., or n th. potential to emit, 5 tons per year (tpy) of ‘ i CC. Second, all major sources (down to those with emissions of 5 tpy of VOC or greater) in the area must be required to have RACI-level controls. Third, the State must demonstrate that the SIP includes all measures (both stationary and mobile) that are achieved in practice by sources in the earn. sourc. category in nouiattainnent areas of the next higher classification. Fourth, ------- 05/21/93 13.02 V9 19 541 0821 .4GMD RTP — oGc OO$1OQ1 4 the plan must include all measures that can be feasibly implemented in the area, in light of technological achievability and cast. If an area chooses to meet the requirements of section 182(b) (1) (A) (ii) to get a waiver of the 15 percent provision 4 A interprets title V to require operating permits for all VOC sources in that area that emit or have the potential to emit S tpy of VOC. This is because the definition of “major source” in title V expressly refers to “major stationary source” as defined in part D of title I. Since, under the waiver provision, “major stationary source” would be defined as having the potential to emit 5 tpy for the purposes of title I, this would become the definition of major sourc. for the purposes of titi. V. I suggest that you provide a copy of this memo to your affected State and local agencies. Inquiriss may be directed to John Silvasi at (919) 5415666. cc: Air Branch Chief, R.gions I-X William Becker Rich Ossias Lydia Wegman Dick Wilson ------- : 1 ( ç) ( ) ‘ o tO $ i, .:IiI t J 1% SD UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY Office of Aic Quality Planning and Standards Research Triangle Park. North Carolina 27711 SEP I 0 I9 3 MEMORANDT.TM SUBJECT: FROM: TO: Credit Toward the 15 Percent Requirements from Architectural and Industrial intenance Coatings Seitz Qua1 ity 10) Director, Air, Pesticides Toxics Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, .ir, Pesticides and Toxics Division, Region VI Director, Aix and Toxics Division, Regions VI I, VIII, IX, and X The Environmental Protection Agency (EPA) is currently involved in negotiations concerning the development of a regulation for architetural and industrial maintenance (AIX) coatings. The Afli coatings are defined as coatings applied to stationary structures and their appurtenances, portable buildings, pavements, and curbs. These coatings include of f-the- shelf paints sold to c3nst2mers, as well as certain industrial specialty products (e.g., traffic paints and coatings for such items as bridges and petroleum storage tanks). The negotiations are still under way, but it appears that the regulation viii be successfi Il developed, possibly as a national rule. - ing their 15 percent volati] anic cømpounds (VOC) plans which are due November 15, 1993 r take :redit for reductions from this emissions category since it seei :s apparent that reductions will be achieved by the Ant rule by 1995. We anticipate that this rule will reduce AIM emissions by approximately 25 percent from current emissions from the sa level of paint use. It will be acceptable for States to assume a 25 percent reduction from their AIM coatings emissions inventory and incorporate this reduction into their 15 percent b c plan. Portions of plans incorporating such an assumption will be approvable by EPA. I.’.. I ------- 2 I trust that this information will be helpful to you. If you have any questions, please call Bill Johnson at (919) 541 5245. cc: Air Branch Chiefs, Reijions 1-IX ------- io aC !‘) SF . UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards Research Triangle Park, North Carolina 27711 06 OC1 1993 MEMORANDUM SUBJECT: Clarification of “Guidance for Growth Factors, Projections and Control Strategies for the 15 Percent Rate of Progress Plans” FROM: G. T. Helms. Chief’1 ” Ozone/Carbon Monoxide Programs Branch (MD-15) TO: Air Branch Chief, Regions I—X This memorandum clarifies the document entitled, “Guidance for Growth Factors, Projections and Control Strategies for the 15 Percent Rate of Progress Plans,” (EPA—452/R—93—002) which was released in March 1993. Section 6.5 of this document discusses the effects of equipment replacement and new source requirements on the 15 percent plane. However, this discussion, as it relates to new source review, is inconsistent with the document entitled, “Guidance on the Relationship Between the 15 Percent Rate—of- Progress Plans and Other Provisions of the Clean Air Act,” (EPA— 452/R—93-007) which was released in May 1993. As discussed in this document, emissions reductions projected to occur from the part D new source review offset requirements are not creditable toward the 15 percent rate-of-progress plan requirements. However, at the time of reconciliation, any additional, actual, permanent, and enforceable emissions occurring after 1990 resulting from offsets that are not used to offset minor source growth will be creditable in the milestone compliance demonstration due in February 1997 for serious and above areas. The EPA’S Office of General Counsel concurs with this position. A cor ected version of section 6.5 of the growth factors document, *.jch is consistent with the relationship document, is attached Please share this information with your State and appropriate local air pollution control agencies. Any questions about this correction may be addressed to Laurel Schultz of my staff at (919) 541—5511, or me at (919) 541—5527. Attachment ------- 2 cc: John Seitz Lydia Weg an Dick Wilson Jane Armstrong Rich. Ossias David Mobley John Silvasi Kimber Scavo Laurel Schultz David Solomon Dan DeRoeck Mary Ann Warner-Seiph Terry W sie, Region IX Williar ecker, STAPPA/ALAPCO ------- 6.5 EffectS of Equipment Replacement Failure to consider the effects of equipment replacement and NSPS requirements for an affected facility’s existing capital stock, may result in development of a SIP which requires more emissions reductions than necessary to meet rate—of—progress milestones or NAAQS attainment dates. As an existing facility wears out and is replaced with newer equipment, it may become subject to a NSPS: To the extent NSPS requirements are more restrictive than present requirements on the existing (not modified or reconstructed) facility, future emissions will be reduced. The implications of such emissions reductions can be assessed using the following formula: Ext = ((Eb — En) • (1 + r) exp t] where: Ert = Emissions reductions in year t Eb = Emissions in the base year En = NSPS emissions r = Annual replacement rate for worn out capital stock t = Years from the base year Consequently, zeró net growth emissions need not be the same as baseline; they might actually be less. ------- 01’ O IO Sr 4 , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards ______ Research Triangle Park. North Carolina 27711 / 4 OCT 29 93 MEMORANDUM SUBJECT: Rate-of—Progress Plan Guidance on the 15 Percent Calculations FROM: D. Kent Berry, Acting Director_ 4 &,6.-j )14L t,g41_ Air Quality Management Division (XD-1 ) TO: Director, Air, Pesticides and Toxica Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X The Clean Air Act (Act) requires a specified rate of emissions reductions for all ozone areas classified as moderate and above. Moderate and above areas must submit a State implementation plan (SIP) revision detailing how the area will achieve a reduction in volatile organic compounds emissions of at least 15 percent between November 15, 1990 and November 15, 1996 (hereafter called the rate—of—progress plan). The rate—of— progress requirement is based on the 1990 base-year emissions inventory. The rate—of—progress plan revision is part of the full SIP (including an attainment demonstration based on modeling) for most moderate areas, and a separate submittal for serious a$ above areas (due November 15, 1993). ThC 4*Osie/Carbon Monoxide Programs Branch coordinated the developaè t of a series of guidance documents to guide States as they develop their SIP’S to meet the new rate-of-progress requirements of section 182(b) (1). These documents were released between October 1992 and June 1993. In addition, Office of Air Quality Planning and Standards staff presented a satellite training workshop on the 15 percent rate-of-progress plans and the attainment demonstrations in the spring of 1993. The guidaace documents and the workshop explained the procedures for calculating the 15 percent requirement that was first put forth ------- 2 in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” (57 FR 13498, April 16, 1992). Several variations have been suggested for the calculation procedures of this requirement. One suggestion would allow States to offset only 15 percent of the growth rather than all of the growth. Another suggestion would take credit for the Federal motor vehicle control program as a means to achieve the total reductions necessary to meet the 15 percent requirement and offset growth. Regarding the requirement to account for growth, the Environmental Protection Agency’s (EPA’s) interpretation of the Act ensures that actual reductions will occur if an area is to meet the 15 percent reduction requirement. Some of the alternative interpretation suggested could lead to a situation where, due to significant growth, an area’s projected emissions-- even after applying a 15 percent reduction-—could be higher in 1996 than in 1990, but the area would still be considered as meeting the progress requirement. We do not believe this reflects the intent of the Act. States should, therefore, follow the guidance documents issued by EPA when developing their 15 percent rate-of-progress plans that are due November 15, 1993. Thus, we do not foresee allowing the variations such as those discussed above. A second issue ariées as a result of some confusion concerning the above-cited EPA guidance on 15 percent plans. The EPA intends to determine the approvability of the 15 percent rate—of—progress plans using four basic criteria: (1) the base— year inventory and associated projections must be appropriately justified; (2) the target level of emissions is properly calculated; (3) the target level of emissions will be achieved if the strategies adopted and identified in the plan are shown to successfully achieve the necessary level of reductions by the end of 1996; and (4) contingency measures of 3 percent (or a commitment to adopt such measures) are included. Some of the confusion associated with the guidance may come from the discussion of total required reductions. The best test of whether a 15 percent rate-of-progress plan will be acceptable is not wheth & certain amount of reductions is achieved, but whether thS rojected emissions in 1996 will be at or below the S attachment to this memorandum explains specifically how these calculations are to be done. Finally, there is apparently some confusion concerning the creditability of reductions due to the Federal motor vehicle control program (FMVCP). The Act states that emission reductions tram “(a]ny measures relating to motor vehicle exhaust or evaporative emissions promulgated by the Administrator by January 1, 1990” are not creditable toward the 15 percent requirement. This means that reductions due to the pre—1990 ------- 3 FMVCP standards are not creditable but that reductions due to any new standards promulgated January 1, 1990 are creditable. We suggest that you forward this information to your State and local agencies. If you have questions or comments, please contact Kimber Scavo at (919) 541-3354 or Laurel Schultz at (919) 541—5511. Attachment cc: John Seitz Lydia Wegman Dick Wilson Rich Ossias David Mobley Tom Helms Kimber Scavo Laurel Schultz Air Branch Chief, Regions I-X William Becker, STAPPA/ALAPCO ------- ATTACHMENT A specific question that has been raised is whether the 1996 projected emissions that are used to calculate the total required reductions (box “C” in the attached flowchart) should reflect the effects of the noncreditable Federal motor vehicle control program (FMVCP) and Reid vapor pressure (RVP) requirements. There are at least three approaches to this. All three approaches will result in the same answer if followed carefully. However, some may be easier than others depending on what work has already been done. Method 3 may be the simplest of the three because it does not require individual calculation of reductions associated with each mobile source measure. In all cases (including method 3), full dormentation must be provided, including information on MOB :5a input and vehicle miles travelled (VMT) used in the c. - ;ulations. States should also note that the test of the plan will be to determine whether the reductions from the measures listed below are greater than or equal to the “Reductions Needs by 1996 to Achieve 15 Percent Net of Growth” (box C - box D). Because of the possibility for errors in these reduction calculations, States should double-check their calculations by looking at whether the projected emissions for 1996, including growth and. all of the controls expected to be in place, will be at or below the calculated 1996 target. If there is a discrepancy between the results calculated by comparing the projected 2.996 inventory to the target and the results calculated above, it is likely that some of the reductions have been double—counted. The EPA intends to compare the 1996 projected inventory (that should be submitted with the documentation of the 15 percent rate-of-progress olan) to the target as th primary test of whether a State’s pi demonstrates the re -uired reduction. 1. Growth Projections without Control Prolections (a) The State can project the 1996 emissions as if the reductions from FMVCP and RVP will not occur. In other words, the “1996 Estimated issions (Anthropogenic)” is the “1990 Rate— of-ProgressBase-Year Inventory” (box A) multiplied by the appropriati g owth factors. The on-road mobile portion of this 1996 inv is determined by multiplying the 1990 emission factors 1996 VMT. The “Reductions Needs by 1996 to Achieve 15 rcent Net of Growth” (box C - box D) will represent U. of the reductions needed by 1996, including pze-enactment FMVCP and RVP that will occur anyway. (b) The reduc-ions that will count toward this total are as follows: Pre-enactment FMVCP and RVP I/M corrections Tier 1 (post—1990 vehicle emission standards) Enhanced I/M ------- 2 Reformulated gasoline RACT corrections Reductions from any other stationary or mobile source measures States should take care that the reductions are properly calculated. For example, the reductions associated with the pre- enactment FMVCP and RVP in this ãase are calculated as the difference between the product of box A times growth factors (i.e., 1990 emission factors times 1996 VMT) and 1996 projected emissions with no new Clean Air Act (Act) measures (1996 emission factors with NEWFLG=5 and Phase II RVP times 1996 VMT). Note that this is different than the calculation used to adjust the 1990 base-year inventory. The reductions associated with Tier 1 standards are then calculated as the difference between 1996 emissions with no new Act measures (calculated in the previous step) afld 1996 projected emissions with NEWFLG=1 and Phase II RVP. Reductions for other measures can then be calculated sequentially in the same manner (i.e., compare 1996 projected emissions with the new control measure in place to 1996 emissions without the new control measure in place but with all the previously calculated control measures in place). 2. Growth Projections with Federal Mobile Source Control Projections - (a) The State can project the 1.996 emissions as if the reductions from FMVCP and RVP will occur, but no additional mobile or stationary source controls will be in effect. In this case, the “1996 Estimated Emissions (Anthropogenic)” is essentially the “1990 Adjusted Base—Year Inventory” multiplied by the appropriate growth factors. The on-road mobile portion of this 1996 inventory is determined by multiplying the 1996 emission factors (with NEWFLG=5, Tier 1 turned of f, Phase II RVP on) by the 1996 VMT. (b) The “Reductions Needs by 1996 to Achieve 15 Percent Net of Growth” (box.C — box D) will represent all of the reductions needed by 996, in addition to pre-enactment FMVCP and RVP that will occurJ ni..y. The reductions that will count toward this total are- J fol1ous: Tféri (post-1990 vehicle emission standards) Enhanced I/M Reformulated gasoline I/M corrections ------- 3 RACT Corrections Reductions from any other stationary or mobile source measures 3. Growth Projections with all Current Control Projections (a) The State can project the 1996 emissions as if the reductions from FMVCP and RVP and any other mobile and stationary source controls, planned or in effect, will occur. In this case, the “1996 Estimated Emissions (Anthropogenic)” is essentially the “1990 Rate—of-Progress Base—Year Inventory” with the. appropriate growth factors and controls applied. The on-road mobile portion of this 1996 inventory is determined by multiplying the 1996 emission factors (with NEWFLG=1, enhanced I/M, reform, and any other controls turned on) by the 1996 ‘.TXT. (b) The “Reductions Needs by 1996 to Achieve 15 Percent Net of Growth” (box C - box D) will represent all of the additional reductions needed by 1996. The reductions that will count toward this total are as follows:. - Reductions from any other stationary or mobile source measures. ------- FINAL BASE YEAR (1990) INVENTORY * BIOGENICSI EMISSIONS OUTSIDE NONATTAIN ENT AREA ADD ___ GROWTH 1 %0 C 1996 ESTIMATED EMISSIONS (ANTHROPOGENIC) 1990 RATE OF PROGRES S BASE YEAR INVENTORY C-D SUBTRACT FMVCP RVP REDUCTIONS 1990 ADJUSTED BASE YEAR INVENTORY IA-B I “P D TARGET LEVEL 4 FOR 1996 REDUCTIONS NEEDS 1996 TO ACHIEVE PERCENT NET OF 1B51 REDUCTIONS FROM: FMVCP/RVP RACT RULE CORRECTIONS I/H CORRECTIONS * DOES NOT INCLUDE PRE-ENACTZ4ENT BANKED EMISSION CREDIT SUBTRACT V EMISSION REDUCTI ON REQUIRED BY 1996 m 1Lip1y by 0.15 B Ii , TOTAL EXPECTED REDUCTIONS BY 1996 ADD Figure 1. Flowchart for rate-of-progress calculations. ------- l o Sr 4 , - ___ 4( pq t UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards Research Triangle Park. North Carolina 27711 DEC g1993 MEMORANDUM SUBJECT: Credit for 15 Percent Rate-of—’ Reductions from the Archil Maintenance (AIM) FROM: TO: John S. Seitz, of Air Quality Director, Air, Pesticides and Management Division. Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Regions Air and Toxics Division, VII, VIII, IX, and X This memorandum supplements my memorandum of September 10, 1993 concerning State credit for reductions from the forthcoming Federal AIM coating rule. As you know, a number of States have indicated that reductions from this source category are crucial to their 15 percent rate-of-progress plans. In order to allow States to take credit for expected reductions from the Federal rule while still providing necessary safeguards, EPA will approve a committal State Implementation plan (SIP) under section 110(k) (4) if the following conditions are met: 1. tee must submit a SIP by April 1994 committing to adopt an ___ rule if EPA does not promulgate a national rule by February The commitment must be to adopt and submit a State rule 1995 and to implement the rule and achieve reductions by 1996. 3. Emissions reductions in the State-adopted equivalent to the committal SIP, or else a new plan submitted to make up the shortfall. 2. by March November rule must be must be 0/1 Plans for al ------- 2 4. States that submit such a commitment will be allowed to take credit in their 15 percent rate—of—progress plans for these reductions. If you have any questions or comments concerning this approach, please contact Laurel Schultz at (919) 541-5511. cc: Kent Berry Alan Eckert Bruce Jordan Mary Nichols Rich Ossias ------- ‘ 919 541 0044 09121/95 09:32 EPA OAQPS OP11ONAL FQfIM 99(7 -90) NOx SUBSTITUTiON GUIDANCE December, 1993 Office of Air Quality Plarming arid Standards u.s. Environmental Protection Agency Research Triangle Park, North Carolina 27711 FAX TRANSMITTAL t J0oi 0. 1 11 * ------- 09/21/95 09:32 ‘ 919 541 0044 EPA OAQPS 002 Section 1: Background Title I of the Clean Air Act Amendments (CAAA) mandates a 15% reduction of volatile organic compound (Voc) emissions from the 1990 base inventory by November, 1996 in all ozone nonattainment areas classified moderate and above. Areas classified serious and above must achieve the 3% per year VOC reductions past November, 1996 as part of the reasonable further progress (RFP) provisions ( 182 [ c](2] [ Bfl. However, Section 182 (c)(2)(c) allows the post-1996 RFP plan to accommodate a less than 3% per. year Voc reduction if it can be demonstrated that substitution of NOX emission reductions (for VOC reductions) yields equivalent ozone reductions. Underlying this substitution provision is the recognition that NOx controls may effectively reduce ozone in many areas, and that the design of strategies is more efficient when the characteristic properties. responsible for ozone formation and control are evaluated for each area. The purpose of this document is to provide a procedure that can be applied to meet the post-1996 Section 182(c)(2)(B) RFP requirement as well as the Section 182 (c)(2)(C) equivalency demonstration requirements. The intent of this guidance is to facilitate implementation of the most effective ozone precursor control strategies, while meeting the intent of the CAA RFP provisions. The guidance consists of two basic steps that are established in Sections 2 and 3 of this document. First, an equivalency demonstration requires that cumulative RPP emission reductions must be consistent with the NOx and VOC emission reductions determined in the ozone attainment modeling demonstration. Second, specified reductions in NOx and VOC emissions should be accomplished in the interim period between 1996 and the attainment date, consistent with the continuous RFP emission reduction requirement. Section 4 provides the legal rationale underlying this guidance and the guidance is summarized in Section 5. ------- 09, ’21/95 09:33 - 919 541 0044 - EPA OAQPS j003 Section 2: Test for Equivalency — Use of Strategies Aimed at the Mandated Attainment Year [ The condition for deiuonstratini equivalency is that State- proposed emission control strategies must be consistent with emission reductions required to demonstrate attainment of the ozone NAAQS for the designated year of attainment.] The provision for NOx substitution recognizes that a VOC— only control pathway may not be the most effective approach for effecting attainment in all areas. Consequently, NOx reductions are placed on a near equal footing with VOC through substitution. This document establishes two conditions pursuant to both the substitution and RIP provisions in the Act. The first condition requires that control strategies incorporating NOx emission reduction measures must demonstrate that the ozone NAAQS will be attained within time periods mandated by the Act. This condition reflects the Title I provision for gridded photochemical model demonstrations (Section 182(c)). The second condition, addressed below in Section 3, maintains the requirement for periodic emission reductions in order to realize progress toward attainment. Flexibility is introduced by allowing VOC and NOx reductions rather than VOC reductions alone. A third condition exists in which the periodic emission reductions must be consistent with the model attainment demonstration. 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. Section 182(0) of the CAA requires that State implementation plans (SIPs) for serious and above nonattainment areas include a demonstration of attainment of the ozone National Ambient Air Quality Ambient Standard (NAAQS) with gridded photocheinical modeling. These SIP revisions are due by November 15, 1994 and provide the framework for demonstrating equivalent ozone reductions through the substitution of NOx emission reductions for VOCs. Model application procedures for demonstrating attainment are provided in EPA’s Guideline for Regulatorv _ p ticatjpn of the Urban Airshed _ M ode1 , (EPA—450/4—91— 013). This modeling requirement already exists as a Title I provision for areas classified serious and above. Due to the flexibility described below in Section 3.0 which permits virtually any set of NOx and VOC RFP reductions in years prior to the attainment date, a linkage to the attainment year control strategy is required. This linkage provides assurance that the RFP reductions are consistent with the SIP attainment demonstration. States are required to justify substitution by illustrating “consistency” between the cumulative emission 2 ------- 09/21/95 09:33 ‘ 919 541 0044 EPA QAQPS I 0Q4 changes emerging from the RFP/substitutiori proposal arid the emission reductions in the model attainment demonstration (or comparable modeling analysis). The EPA will approve substitution proposals on a case-by—case basis. Generally speaking, any reasonable substitution proposal will be approved. Linkage to the modeling demonstration provides a screen to remove unrealistic (and inefficient) substitution proposals. 3 ------- • 09121/95 09:33 919 541 0044 EPA OAQPS I j 005 Section 3: Reasonable Further Progress (RFP) Requirements (The condition for meeting the RFP emissions reduction provision is that the sum of all creditable VOC and NOx emission reductions must equal 3% per year averaged every three years.] The RFP provisions require periodic emissions reductions until attainment is reached. In the absence of the NOx substitution provision, an area classified serious or above would be required to reduce VOC emissions after 1996 an average of 3% per year every three year period until attainment. This guidance maintains the 3% per year emissions reduction requirement. However, no specified set of VOC or NOx controls is mandated. Reasons for not requiring specific “exchange” rates among VOC and NOX emissions include: 1. The strong likelihood that optimum “exchange” rates vary from year to year and across a geographic area as an area’s emissions distribution and atmospheric chemistry change over time; 2. Uncertainty in modeling analyses, particularly when attempting to ascertain responses from small percentage perturbations in emissions; and 3. Resource limitations associated with modeling specific control measures during interim years before attainment dates. Any combination of VOC and NOx emission reductions which totals 3% per year, and meet other SIP consistency requirements described in this document are allowed. These requirements ensure that the cumulative R?P reductions are consistent with the emission reduction measures identified in the model attainment demonstration. A percentage basis rather than a mass basis is used for calculating the RFP emission reductions. A percentage basis is applied to avoid “absurd” calculations. For example, substitution of NOx reductions for VOC on a ton for ton basis could yield calculated NOx reduction requirements which exceed the available NOx inventory in cases where the base VOC inventory greatly exceeds the NOx inventory. To illustrate, a 50% VOC reduction is analogous to a 100% NOx reduction assuming the VOC inventory is twice the NOx inventory and substitution is based on mass rather than percentage equivalency. The percentage basis also is consistent with the RFP “percent” reduction requirement, therefore buoying the legal justification underlying this guidance. 4 ------- 09.121/95 09:34 ‘919 541 0044 EPA OAQPS . ‘ juu The calculation to determine yearly VOC and NOx emission reduction totals must be based on typical summer day inventories (sam basis used for RFP and modeling inventories) . Specific details regarding calculation procedures and emission inventory definitions are found in separate documents, including EPA’s forthcoming Guidance on the Post-1996 Rate—of--Progress Plan and the Attainmertt Demonstration . The following equation generally describes the method to calculate the total 3% per year emission reductions: RV/VOCBASE + R,/NOxBASE >=. 0.03 where; typical summer day VOC reductions in mass units RN = typical summer day NOx reductions in mass units VOCBASE themass of anthropogenic VOC emissions in the 1990 adjusted base inventory, and NOXBASE = the mass of anthropogeniç NOx emissions in the 1990 adjusted base inventory (note, the cumulative mass reductions are not constrained to 3% per year so that RFP reductions greater than 3% per year are not discouraged.] The values of Rq and R include only the creditable emission reductions from the nonattainment area of concern. For instance, VOC or NOx reductions from the pre—enactment Federal Motor Vehicle Control Program (FMVCP), which are not creditable toward the 3% per year requirement are not included. Potential “creditable” NOX emission reductions which are available for substitution purposes are described in EPA’s forthcoming Guidance on the Post—1996 Rate—of—Proqress Plan and the _ Attainment DemonstratiozL The attainment strategy requirements must be met in addition to the RPP condition. Total emission reductions are determined by the attainment demonstration, implying that reductions averaging greater than 3% per year averaged from 1996 to the specified attainment year are required if shown to be necessary by the model demonstration. The 3% per year RFP requirement is thus a minimum requirement. Further, the NOx emission reductions credited toward RFP may be capped by the cumulative reductions dictated by the model demonstration. For example, an approved control strategy emerging from a model demonstration for a serious area might show reductions of 6% NOx and 80% VOC, relative to 1990 emissions, are needed by 1999. Assuming zero creditable NOx emission reductions from 1990 through 1996, NOx reductions averaging 2% per year over the 3 years from 1996 to 1999 represent a cap on the NOx RFP reductions. The reason for 5 ------- .09 21/95 09:34 ‘ 919 541 0044 EPA OAQPS ‘ Joua linking the RFP reductions to the attainment strategy is to avoid RFP reductions which are not consistent with the model demonstration. Note that the sum of emissions totalling 3 per year are required to meet the basic RFP provisions -- they are not capped by the attainment demonstration. Thus, cases might exist where VOC reductions from the RFP provisions might exceed the cumulative VOC emission reductions in the attainment strategy. Such cases do not conflict with the attainment demonstration since additional VOC reductions will not increase peak ozone. On the other hand, the NOx cap is necessary because NOX reductions have the potential for increasing peak ozone. 6 ------- 09./21/95 09:35 ‘ 9I9 541 0044 EPA OAQPS ‘ _Juu Section 4: Discussion of Equivalency (The following discussion provides the legal ‘rationale underlying the interpretation of “equivalency” and the linkage between the RFP and NO Substitution provisions within the Act.] “Equivalency” is riot defined strictly in the context of, “What specified level of NOX reductions, compared to VOC, results in equivalent ozone reduction?” Instead, any combination of VOC and NOx reductions is “equivalent” so long as the reductions are consistent with those identified as necessary to attain the NAAQS in the modeling demonstration and provide for steady progress in leading to the emission reductions identified as necessary to attain the NAAQS by the specified attainment year. In allowing a combination of NOX and VOC controls or the substitution of NOx emissions reductions for voc emissions reductions, Section 182(c)(2)(C) of the statute states that the resulting reductions “in ozone concentrations” must be “at least equivalent” to that which would result from the 3% VOC reductions required as a demonstration of reasonable further progress (RFP) under Section 182(c)(2)(B). This provision could be interpreted to mean that the amount of NOx reductions appropriate for substitution purposes is an amount which, when compared to predicted VOC reductions, results in the sane reductions in ozone concentrations that the VOC reductions would achieve in that area. However, such an interpretation could result in a demonstration showing that very small NOx reductions provide an adequate substitute for large VOC reductions. This is because under some conditions substantial VOC reductions produce only small — even insignificant — reductions in ozone concentrations, while minimal NOx reductions under the same conditions may produce the same degree of ozone reductions. EPA believes Congress would not have intended States to meet the Act’s progress requirements with emissions reductions that would produce only minimal improvement in ozone concentrations. 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. The implicit assumption under that language is that such lesser levels of VOC reductions would be allowed only because of the correspondingly higher percentage of NOx emission reductions to be authorized as a full or partial substitution for the otherwise required VOC reductions. In light of the entire set of language and 7 ------- •09fl21/95 09:35 ‘ 919 541 0044 EPA OAQPS I J0Q9 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 ezuission reductions which is reasonably calculated to achieve both the ozone reduction and attainment progress goals intended by Congress. Nothing in the Act or in the legislative history directly addresses the case where NOx reductions that are substituted for VOC reductions, and which meet the plain grammatical meaning of “equivalency,” nonetheless result in insignificant ozone reductions. To avoid such a result and give meaningful effect to what Congress likely intended regarding the substitution provision, EPA has decided to rely in its NOX substitution guidance on the only point of reference provided by Congress concerning what may constitute an appropriate quantitative reduction target for RFP purposes, namely the 3 percent per year required under Section 182(c)(2)(B). Under that approach, EPA would approve substitutions of NOx for VOC that would ensure that the sum of the respective creditable percent reductions of each of these pollutants areawide, averaged over 3 years, would be no less than 3 percent from the baseline. As additional evidence that Congress was concerned with getting more than minimal reductions in ozone concentrations through substitution, EPA notes that the RPP demonstration described in Section 182(c)(2)(B) focuses on reductions of a specified quantity of VOC emissions per year. (Similarly, the 15 percent RIP reductions required for Moderate ozone nonattainment areas focuzes on reductions of that specific quantity of VOC emissions per year.) B contrast, the alternative RFP demonstration in Section 182(c)(2)(C) allows flexible VOC/NOx emission reduction strategies, but only so long as the overall quantitative reduction in ozone concentrations is equivalent to the amount which, for Serious ozone nonattaininent areas, Congress initially determined must be met (i.e., the ozone concentrations achieved by VOC reductions of 3 percent per year) in order to ensure expeditious progress towards attainment. In this regard the House Committee Report states: “NOX reductions may not be substituted for VOC reductions in a z ann r that delays attainment of the ozone standard or that results in lesser annual reductions in ozone concentration than provided for in the attainment demonstration.” H.R. Resp NO. 490, 101st Cong., 2d Sess. 239 (1990). B ------- .09 21/95 09:36 ‘919 541 0044 EPA OAUPS ‘ jU.LV Section 5: Suiinnary The RFP requirements under Section 182(c)(2)(B) of the CAA are intended to insure that the SIP “provide for such Specific annual reductions in emissions of VOC and NOx as necessary to attain the NAAQS for ozone by the applicable attainment date.” This language is interpreted to mean that 1 to meet the RFP requirement, it is necessary to show that steady progress is being made toward implementing measures called for in an area’s attainment strategy. Further, the Act also specifies minimal annual percentage reductions in creditable emissions which must be realized in an RFP program. Section 182(c)(2)(C) increases the flexibility in which the annual emission reductions can be derived by allowing NOx emission reductions substitution for VOC after 1996. The recommended procedure responds to these concerns by imposing two requirements. 1. Establish a strategy incorporating reductions in VOC and/or NOx sufficient to meet the NAAQS within timeframes specified by the Act. This is to be done using approved photochemicál grid models in a mariner consistent with published Agency guidance on the use of such models in attainment demonstrations. In the context of the NOx ‘substitution guidance, the purpose of this first step is to establish an ultimate target toward which the RFP program is aimed. 2. For interim years, any mix of annual reductions in voc and NOX is permissible so long as it reflects (a).a logical step toward implementing the attainment strategy identified in (1), and (b) results in a combined annual VOC and NOx reduction of 3% per year. • The requirement for continuous VOC emission reductions amounting to 3% per year has been modified to allow flexibility in the mix of VOC and NOx emission reductions, while maintaining a 3% per year reduction in the of NOx and VOC emissions. A principal assumption underlying t iis guidance is that optimum control strategy designs may differ among various nonattainment areas. The NOX substitution provision permits greater flexibility for States in designing effective emissions control strategies. Furthermore, because the test for equivalency is identical to the NAAQS attainment test for serious and above areas, the demonstration imposes negligible additional resource burdens for those areas already required to perform gridded photochemical. modeling. 9 ------- fir ’— (.I ) I—— flr p !1, 1/: 8 L ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY - o j r 5 Office of Air Quality Planning arid Standards / Research Triangle Park, North Carolina 27711 ii 4 L 01 çS’ A’ i g AUG 5 1994 0/i - M EMORANDtJM SUBJECT: Clarification of Policy for Nitrogen Oxides (NOx) Substitution FROM: John S. Seitz,. Director Office of Air Quality P1 ning and Stafdards (MD-iD) TO: Director, Air Pesticides and Toxics Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Divisjon Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X The purpose of this memorandum is to clarify past guidance issued by the Environmental Protection Agency’ (EPA) on NOx substitution 2 for the post—1996 rate-of-progress (ROP) plans. Specifically, this memorandum clarifies what the EPA will accept as evidence that NOX substitution for volatile organic compounds (VOC) reductions is a viable approach for meeting post-1996 ROP requirements prior to completion of modeling supporting an area’s attainment demonstration. - Background When the NOx substitution guidance was developed, it was assumed that required modeling attainment d:?lnonstraLions would generally be completed in a timely manner. Consequently, the policy assumes that information produced by the demonstrations “Transmittal of NOx Substitution Guidance,” memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, to Air Division Directors, December 15, 1993. 2 ”Guidance on the Post-1996 Rate-of-Progress Plan and the Attainment Demonstration,” U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, EPA-452/R-93-015, January 1994. ------- 2 would be, in most casés, available to assist decision makers to reach sound decisions concerning NOx substitution to meet post— 1996 ROP requirements. Recent information from Regional Office modeling contacts indicates that it is likely that some areas may not complete their attainment modeling analyses by November 1994. Perhaps even more significant, very few modeling demonstrations are expected to be completed appreciably before the Act’s November 15, 1994 deadline for submitting State implementation plan revisions reflecting ROP requirements and additional measures needed to attain the national ambient air quality standards (NAAQS). This latter possibility raises the likelihood that there may be insufficient time prior to November 1994 to take full advantage of information generated in the attainment demonstration modeling to support a ROP plan reflecting partial or full substitution of NOx for VOC reductions. NOx Substitution Policy The December 1993 NOX substitution guidance identifies several prerequisites for NOx to be substituted, in part or in full, for VOC reductions to satisfy ROP requirements. For purposes of this discussion, the most pertinent of these appears on pages 2 and 3, “States are required to justify substitution by illustrating ‘consistency’ between the cumulative emission changes emerging from the reasonable further progress/ substitution and the emission reductions in the model attainment demonstration (or comparable modeling analysis).” The guidance goes on to say on page 3 that, “The EPA will approve substitution proposals on a case-by-case basis. Generally speaking, any reasonable substitution propsal will be approved.” In the absence of a complete modeled attainment demonstration, the following prerequisites are consistent with the intent of the guidance on NOx substitution. 1. The NOx reasonably available control technology (RACT) regulations should be adopted and submitted to the EPA by the State seeking to substitute !‘IOx for VOC to meet ROP requirements; EPA will have to approve the NOX RACT rules no later than the date of approval of the ROP plan featuring NOx substitution. 2. At least one of the two following conditions should be met: (a) modeling of at least one episode should have been completed with photochemical grid modeling which shows that NOx reductions are useful in reducing ozone concentrations; or (b) a regional modeling analysis supporting use of NOX controls to reduce ozone within the area under consideration for use of NOX substitution should be available. ------- 3 The first pr equisite shows that, indeed, NOx controls are a part of the area’s strategy to attain the ozone standard. The prerequisite in 2(a) is preferable to that in 2(b), and will take precedence, because it is more likely to reflect assumptions and inputs to be used in the attainment demonstration. In any event, either photochemical grid modeling or regional modeling results are needed to show that NOx control is useful in helping an area to attain the ozone NAAQS. It is only necessary to show this for one of the episodes selected for the attainment demonstration. This follows because the attainment strategy ultimately selected must show predicted ozone to be less than or equal to 120 parts per billion for all selected episodes. Questions ‘on this clarification may be directed to John Silvasi at (919) 541—5666, or Ned Meyer at (919) 541—5594. cc: Doug Grano Tom Helms Steve Hitte William Hunt Ned Meyer Rich Ossias Kimber Scavo Laurel Schultz John Silvasi Joe Tikvart Lydia Wegman ------- ..—-. iL1h ’ 4 i. :jz 4J . UO 4 - ‘. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 0(3 Office of Air Quality PIarlr!nç and Standards ______ Researcf Triangle Park. Nonh Carolina 27711 • - . / NOV29 1994 MORANDW ( SUBJECT: Credit for the 15 Percent Rata-of Pxogress Plans for Raduct ions from the Architectural, and Industrial Maintenance (AIM) Coating Rule and the Autobody Ref ininshing Rule PROM: John S. SBitz, Director Off ice of Air Quality (MD—b) TO: Director, Aix Pesticides and Toxics - Manag ’ nt Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, • Region V - Director, Air, Pesticides and Toxic Division, Region VI Director, Air and Toxics Divisi on, Regions VII, VIII, IX, and X AIM Coatings This memorandum supplements my memorandum of December 9, 1993 concerning State credit for reductions from the forthcoming Pedoral AIM coating rule. In that memerandum, us provided conditions that States must meet in order to taics credit for the AIM co Ung rule. The conditions were for States to submit a commi .by April 1994 to adopt and submit a State rule by March. 5if EPA does not promulgate a national rule by Pebruary 1995. our expectation that EPA will not promulgate a natisàâ u1. until May 1996 • with an effective date of August 1996. - We now anticipate that this rule will reduce AIX emissions in unregulated areas by approximately 15 percent by the end of 1996. This estimated reduction was determined using 1990 baseline voc levels, incorporates growth, and includes accounting for rub. effectiveness and rule penetration. Reductions in years beyond 1996 are expected, and additional guidance may be issued for thes. reductions in the future. - - ------- 11/29/94 13:33 S19 541 0824 EPA-OZONE-CO ‘ -. OGC-K 2 Because a number of States have indicated that reductions from this source category are crucial to their 15 percent rate— of-progress plans, and that there is concern that sane States may not b. able to adopt their own rule before March 1995, we find the following two amendments to our previous conditions acceptable: 1. States that are adopting their own rule may no4i have until July 1995 to complete the rule. 2 States that are having difficulties adopting their own rule may take credit for the 15 percent reduction described above without adopting or committing to adopt back-up measures. We encourage States that take the 1.5 percent credit for AIM to develop backup measures in case the national rule is delayed bsyond 1996. If EPA’s rule does not provide a 15 percent reduction by the and of 1996, the State will be responsible for developing control measures to make up the shortfall. If the State fails to do so, EPA will have to disapprove the 15 p.rc.nt rate-of-progress plan. Fifteen percent rate-of-progress plans that assume a 15 percent reduction for the AIX coating rule may be found complete if all other completeness criteria are mat. Autobody Refinishina In addition to the above credit for the 15 percent rate-of- progress plans, EPA finds It acceptable to allow a 37 percent reduction from current en.issions for autobody refinishing. The national r ale for autobody refinishing is expected to be proposed in uly l 35 and promulgated in February 1996, with an effective date of August 1996. Because of the limited number of manufacturers that this rule affects, States may assume 100 percent rule effectiveness presuming the instructions on how to apply the coatings e followed. In addition, rule penetration does not apply because the rule affects all sources within the category. We encourage Stat.. to develop backup measures in this case as val]. because the same approval restriction, will apply. If have any questions or comments concerning this approacW $iase contact Kimber Scavo at (93g) 541—3354, or Laurel Sbhultz at (919) 541-5511. Any questions regarding the status of the AIM rule may be directed to Ellen Ducey at (919) 541-5408. Any guestions regarding the statu, of the autobody ref iniehing rule may be directed to Mark Morris at (919) 541— 5416. cc: Sally Shaver Rich ssias Bruc Jordan WilLs Becker Lydia Wegman Alan Eckert ------- Sr 4 , ‘1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESEARCH TRIANGLE PARK NC 2771 I ‘p OFFICE OF AIR QUALITY Pt ANNING iAR 2 2 ANOSTANOAHOS MEMORANDUM SUBJECT: Credit for the 15 Percent Rate-of—Progress Plans for Reductions from the Architectural and Industrial Maintenance (AIM) Coating ule FROM: John S. Seitz, Directo Office of Air Quality ing and St ndards (MD—b) TO: Director, Air, Pesticides and Toxics Management Division, Regions I and IV Director, Air and Waste Management Division, Division II Director, Air, Ra4iation and Toxics Division, Region III Director, Air and Radiation Division, Division V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and To)cics Division, Regions VII, VIII, IX, and X This memorandum supplements my memorandum of November 29, 1994 concerning State credit for reductions from the forthcoming Federal AIM coating rule. In response to comments received to revisit our decision to use an 80 percent rule effectiveness for this national regulation, we have decided to. increase the assumed rule effectiveness to 95 percent. Five percent is assumed to be lost due to the uncertainty involved in allowing manufacturers and importers the option to pay an exceedance fee to manufacture coatings with volatile organic compound (VOC) contents above the standards. In addition, in response to industry comments about our reduction calculation procedure, we have slightly modified our calculation assumptions for reductions achieved from one of the regulated categories. This modification increases the reduction estimate slightly. The combined effect of these two changes increases the overall reduction estimate to 20 percent in unregulated areas by November 1996. Reductions in years beyond 1996 are expected, and additional guidance may be issued for these reductions in the future. ------- 2 States that are having difficulties adopting their own rule may take credit for the 20 percent reduction described above without adopting or committing to backup measures. However, if EPA’s rule does not provide a 20 percent reduction by the end of 1996, the State will be responsible for developing control measures to make up the shortfall. If you have any questions or comments concerning this approach, please contact Laurel Schultz at (919) 541—5511. Any questions regarding the status of the AIM rule may be directed to Ellen Ducey at (919) 541—5408. cc: William Becker, Executive Director, STAPPA/MIAPCO Alan Eckert, OGC (2344) Bruce Jordan, OAQPS/ESD (MD-13) Rich Ossias, OGC (2344R) Sally ShIver, OAQPS/AQSSD (MD-15) Lydia Wegman, OAQPS (MD-b) ------- (ci’L C( .) Jfr 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESEARCH TRIANGLE PARK. NC 27711 I 4j OFACEOF MR QIJAUTV PtANNING t4AV 5 AND ‘1OPANDt1M SUBJECT: Fifteen Percent Rate-of-Progress P1ans—-Additior al Guidance FROM: 3ehn S. Seit , Directo Office of Air Quality P an tan s (MD—b) TO: Director, Air,, Pesticides and Toxics Management Divi5ion, Regions I and IV Director, Air and Waste Management Division, Region II Director, Ai , Radiation and Toxics Division, Region III. Director, Air and Radiation Division, • Region V • Director, Air, Pesticides and Toxics Division, Region VI • Director, Air and Toxics Division Regions VII, VIII, IX , and X Section 182 (b) (1) of the Act required States to submit, by November 15, 1993 for all ozone nonattainment areas classified as moderate and above, a SIP that provides for a 15 percent -. reduction in emissions of VOC by November 15, 1996. The purpose of this memorandum is to provide guidance on completeness of 15 percent plans as they relate to the enhanced I/N program. .On December 20, 1994, Carol Browner, Administrator, sent a letter to the Governors to communicate her plan tg provide flexibility for States required to implement vehicle emissions I1M. The. A will propose to establish a nev “low—enhanced” TIM performa jà, standard applicable to States that have shown they do not nee Ull enhanced I/N program, as currently, defined, to fulfill l5 percent rate-of-progress plan requirement, or if a State ca áäJce up the emissions reductions needed for the 15 percent plan from other sources.’ In most cases, States are relying on reductions from the enhanced I/N program as a portion of the 1.5 percent rate-of-progress plan. The EPA continues to believe that a high-tech, test-only I/N program provides a large LMemorand from Margo I. Oge, Director, Office of Mobile Sources, to the Regional Air Division Directrs, dated December 29, 1994, subject “I/N Requirements and Flexibilities.” ------- o5/OP/9-3 08:25 541 0824 EPA_OZONE-CO .-.-‘ 0CC—DC I JOO4/OO4 2 (and cost—effective) contribution to the substantial overall emissions. reductions required for the 15 percent p1an States should be aware that achieving these reductions with other programs may prove more difficult and costly. Where a State can demonstrate that incremental reductions between what would have occurred under the I/U program that the State has chosen to adopt and what would have occurred with the high enhanced 1/14 program can be achieved from other sources by December 31, 1996, EPA will accept, for the purpose of completeness, a commitment for rules to achieve those incremental reductions. The cc mitiaent mus€ identify the measure(s) and the amount of raductic - 3 expected to be achieved. If all other requirements are met, a 2.5 percent plan that contains such a mmitment may be found complete. For States that are currently subject to a finding- of failure to submit or incompleteness, this commithen must be submitted and found complete before the 18- month clock expires in order to avoid sanctions. Rovever • any 15 percent plan that contains such a commitment may net be considered to be fully approvable until the measures are fully adopted. .This approach is acceptable and necessary, as a practical matter, because the changes in EPA’s approach to provide flexibility for the I/H program are recent. Therefore, some States may need additional time to develop ether measures in order to achieve the reductions necessary for the 15 percent plan. T. is guidance upersedes any statement i to the contrary in the Augt. t 23, 1993 Lnorandu]u from Michael Snapiro, Acting Assistant Adininistrz .r for Air and Radiation. Please share this information with your State and local air pollution control agencies. The contact persons for this guidance are Laurel Schultz (919-541-5511) or ICimber Scavo (919-541—3354). Please feel free to call Sally Shaver, Director, AQSSD, (919—541—5505), if there are any questions. cc: Air 8ranc b1.f, Regions I-X Alan Ecice f4 William Bnltt Phil Lorang Mary Nichols Merge Oge Rich Ossias Sally Shaver Lydia Wegman ------- r.CV—29—1994 29: 2 FROM OtIS 2ND FLCOR TO 9i i3s694 69 P.øi OPTOr4AL FORM 99 (,. ) FAX TRANSMITTAL Ddpug.IØ . To & MM? r F m ? J 4 I pn Iu’ ue ?aiI j$H I.417..73 $ 3099-101 GEP4ERA . SERVICES £DM i UNFTED STATES ENVIRON _________________________________ • y: WASH1NQ I 3. MOxiu,wt M AIR A?Cs RADIATION Subject: SIP credits for 4 Federal Nonroad Engine Emissions • Standards and Cert tn Other Mobile Source Prograñts Pro ns Mary Nichoip, - Assietant Adr in3.sfr tor • for Air and Radibtion To: Regional Administrators, Regions 1-10 • The purpose of this memorandum is to p ovide guidance on how EPA i itends to allow SIP ôredits for national mobile source ineasu.ree. not yet pzomulgated. Although a. single policy will bà applied to all states, -the actual cre4ite associated these nieasurü will vary. depending on evaluation dates. Therefore, this memorandum will be followed by subsequent memoranda from EPA’ s Off ice of Mobile Sources .detailing methodologies for states to use in calculating the benefits of these mea ures in nonattàinment. areaCon specific evaltation dates. This memorandum describes current policy, and does not constitute final action. Final action Will be taken La the context of notice-and-comment rulemaking or other appropriate actions concexning the relevant SIP submisèioris. • EPA is wider court order to promulgate national emissions standards for several categories of nonroad eq iipment .or engines over the next three years. Many of these standards will not be promulgated until after the deadlines for nonattainment.and rate- of-prngreea SIP aubntis3jong. EPA has received several requests from states for guidance on whether and how states could take credit in SIPS for national .emission standards not yet promulgated. Seine states have suggested that they be allowed to use the same approach that EPA ha used in the recently proposed Federal Implementation Plans for California. Ba cka round SIPo demonstrating ättairirn nP. and post-1996 rate-of-progress reductions in VOC inyer.tories are due November 15, 1994. However, EPA is not expected to promulgate most nonroad standards until ftcr that date. E?A•is r c red by court order to finalize the Pederal emission standards on the following schedule; ------- ,l 54 : 3 FROM O11 2ND FLOOR TO 913 136684363 . P. 02 • ‘ - . ‘ .,. • -p .r.. • b .Small’Nonroad Spark Ignition Engines-- Ma , 1995 Phase I • • • Small’ Nonroad Spark Ignition Engines-- pri1 1997 Phase II. • Marine PleasuFe Cft November 1995, •, Implementation’ of these, standards will odcur over the peric d from 1996 to .2001, and will apply only to newly built equipiftent. buè to the proposed’phase-in of the standards and’ the effects of fleet tur7apver, benefits of theSe programs are expected to be small prior. to the end of the century. Nevertheless, areas ‘with. -attainment deadlines of 2Q05 or later, there is the potential for. substantial benefits from ,thege programs. ‘In addition to’ the national nonroad stan ardr given above, ‘two other ‘national mobile source control programs have similar situations regarding late deadlines for final rules compared to the SIP . deadlines. EPA is under” court-ordered deadline to finalize th Federal Test Procedure ( P) revision rule by October 1995 and the gasoline detergent ‘additive rule by. June 1995. The PIP roac • on’ Fe ruary 14, 1994, EPA’ released proposed’ Federal Implementation Plans for California.. These. proposed plans take credit for -the national nonroad standards given above. For small onread ga o1ine engines in the PIPe, a 40% ra iuction in VOC’ emissions was assumed for phase I and a- 90% total reduction was assumed for phases I and II combined. The total benefit for Phase I and II assumed in’the’ FTP is baeed,on the assumption .that the final .national rule will include new. exhaust standards in ,combination with other’ measures such as evaporative , mission controls, spillage control programs, fuels reguiromonts, nd programs to accelerate :f1 t turnover. , For heaVy duty óompresaion ign.iti’on ‘nonroad ágines, EPA proposed in the, FIPs a control program based -on a combination of proposed national standards and more stringent set âf standards specifically for the YIP areas. ‘Benefits for the national standards were based on a 6.9 g/bhp-hr NOx standüd. 1?or,marine pleasure craft, benefits in the PIPs are based on an assumption of an 80% reduction in .exhau et’ RC emiaaions from outboard engines and,(an 8% reduction in exhaust XC emiésionc from inboard engines, plus FIP-specific programs to encourage the use of only engines meeting the new standards. • ‘For the riatio ’paJ. smaU engine and marine pleasure craft programs in particular, these benefits are not exact since’ in both cases they will depend on public comment to proposed rules and in the’c se of tile small engine standards, they w 11 also depend in ------- ‘.- - 4 9:54 FROM 0ri5 21’ID FLOGR TO 913136684369 P.03 part on the outcome of the regulatory negoUaUuu process. However, for the. FIPs., EPA’s Office of General Counsel has concluded that we are justified in giving credit to these programs even with this uncertainty. The promulgation of most of the e rules i’s.imminent and all are legally compelled by specific dates. The •range of uncertainty with regard to the benefits of the final rules is entail, especially in comparison to the tota.L emieaion9 inventory. Consequently, the potential error in . inventOry estimates and therefpre, the potential error in the required stringency for all other control measures in :the nenattainnient area, is small. Finally, we proposed in the PIP a commitment that ifthe final rules are less stringent than we have anticipated, we :will prbmulgate a more stringent program for the FIP areas, which will achieve the specified reductions.. Application of the PTP Approach to Other _ State and Other ontro1. Measures . EPA believes that, with certain cond tione. states may take a similar approach in their SIPs for the national programs described abov. and for other required Federal mobile source measures, including thos subject to court-ordered deadlines. The fact that these are required 1 Federal rules, and •indeed with court-ordered dc dlineo, creates special. circumstances that allow EPA to consider • them enforceable SIP.e].emnents, provided states also commit to adopt gap-filling nteasureá to account for any shortfalls, identified later, between currently anticipated and actual final benefits. These gap-filling measures do not necessaril have to.be • in the same invento± category as the rule they are meant to d( count for. By extension of this line of reasoning, EPA believes that, in addition to the YIP nonzoad iiie u described above, states s ould also be able to take c: edit for the gasoline detergent additives rule and.certain aspects of the FTP revision rule, both of which are also under court-ordered deadlines. Subsequent memoranda will detail ;he calculatioii of SIP credits for. these p ogram . States should not count on achieving reductions .identic4 to those published in the technical: support documents for the California FIPs, for several reasons. In. some cases (such as heavy duty nonroa an marine pleasure craft), the FIP benefits inclu de additional FTP-specific measures that are not part of EPA’s propc e4 national rules. The Office, of General Counsel has. concluded that this policy of authorizing SIPs. tâ take credit for ‘reductions form Federal measures is consistent .wjth the overall scheme of the Clean Air Act oz ne nonattainment provisions, as well as the relevant provisions by theil terms. Congrens anticipated that attainment of the ozone primary national ambient air quality standard would result from a cDnmbination of State .and Federal actions. As a result, the reductions from Federal measures are arr integral part of Congress’s blueprint for attainment. Therefore, SIPs should be allowed to ------- CU-29— 994 Z9:54 FROM OtIS 2ND FLOOR TO S131366o4 P.B4 account ‘f or. those reductioi s.’ In particular, the. attainment demonstration. provisions of sections 183(b).(l) (A) Ci) (Mqderate • areag) and 182(c) (2) (A)’ (Serious and higher classified areas); as well as the rate”of’.Progress CROP) provisions of . sections ‘182 (b) Cl) (C) . (initial 15% required reductions). and 182 Cc) (2) (2) subsequent 3% per year required reductions) may b read to assiune. the creditability o . r ductións from Federal measures (other than those , specifically, identified in the RO? provisions ‘ as noncred t ’ablR). ‘ Purther. . denyiig SIP credit for reductiQna from Federal measures would unduly burden the States because States would be obliged to develop and begin to ia lement SIP measures to a ure the full amount of reductions needed for ROP and attainment, but .they could ubsequently retract those SIP provisions when the Federal rneaaures are promulgated and begin y4elding reductions. cc:’ Mary Smith, OMS • ‘Richard Wilaon, O R - ‘Jobn’ .Seitz, OAQPS ‘Alan Eckert, 0CC 1 2 ------- Sr 4 , F _____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY “4 / NATIONAL VEHICLE AND FUEL EMISSIONS LABORATORY 2565 PLYMOUTH ROAD ANN ARBOR. MICHIGAN 48105 t G 28 1994 OFFICE OF MEMOPANDUM AIR AND R DIATON SUBJECT: Future Nonroad Emission Reduction Credits for Court-Ordered Nonroad Standards FROM: Philip A. Lorang, Director Emission Planning and Director, Air, Pesticides, and Toxics Management Division, Regions 1 and 4 Director Air and Waste Management Division, Region 2 Director, Air, Radiation, and Toxics Division, Region 3 Director, Air and Radiation Division, Region 5 Director, Air, Pesticides, and Toxics Division, Region 6 Director, Air and Toxics Division, Regions 7, 8,9, and 10 - This memorandum provides guidance for the calculation of emission reductions resulting from federal nonroad engine emission standards that have court-ordered deadlines for promulgation. The guidance is intended for use in the preparation of State Implementation Plan (SIP) submittals, such as post-1996 rate-of-progress plans and attainment demonstrations due in November 1994. The attached memorandum explains EPA’s policy regarding SIP credits for national mobile source measures that are court-ordered but not yet promulgated. The guidance in this memorandum is based on analyses performed for the proposed federal nonroad standards and the Federal Implementation Plans (FIPs) that EPA has proposed for the South Coast, Ventura, and Sacramento areas of California. Emission reduction credits resulting from the guidance represent the anticipated effects of national standards that have been made final (in the case of heavy duly diesel engines), have been proposed and are subject to a court-order for finalization, or are court-ordered but have not yet been proposed. If final standards are less stringent than proposed or anticipated, states will be required to make up any shortfall in emission reductions that occurs. For that reason, states may want to include a safety margin in their emission reduction estimates to guard against the prospect of overestimating emission reductions and underestimatingthe need for additional controls. On the other hand, if final standards prove to be more stringent than proposed or anticipated, states will be able to claim the additional credit that is identified. The first section of this guidance provides a list of the promulgation deadlines for the recently promulgated and court-ordered standards. It is followed by a description of each of the fmal and proposed standards. The next section identifies the nonroad equipment types affected by each standard and provides guidance for applying the specified annual fleet average emission reductions associated with each standard to an area’s nonroad inventory. l’he guidance concludes with information concerning the calculation of the identified emission reduction credits. Fs ’nieC , . ... ------- -2- Court-Ordered Nonroad Standards EPA is under court order to promulgate standards for new nonroad engines in the following categories by the indicated dates: Heavy Duty Compression Ignition (CI) May 1994 (completed) Engines Small Nonroad Spark Ignition (SI) May 1995 Engines Phase I Small Nonroad Spark Ignition Engines May 1997 Phase II Outboard/Inboard Marine Engines November 1995 Emission Standards Heavy Duty Compression Ignition ( Diesel) Engines On May 31, 1994, the EPA Administrator signed a regulation setting final emission standards for new heavy duty compression ignition engines. These standards were published in the Federal Reaister on June 17, 1994 (59FR3 1306). They axe the first of the court-ordered federal nonroad emission standards to be finalized. The final heavy duty diesel regulations adopt the proposed nitrogen oxide (NOx) and smoke standards for large nonroad CI engines with a power output measured at or above 37 kilowatts (kW), or 50 horsepower (hp). The heavy duty diesel regulations also set standards for hydrocarbon (HC), carbon monoxide (CO), and particulate matter (PM) emissions for engines at or above 130 kW. These standards, which were not included in the initial proposal, are consistent with those adopted by California. Table I lists the heavy duty diesel standards by pollutant and power output. Table 2 provides the effective dates of the standards by power output. Table 1 Final Standards for Heavy Duty Diesel Engines Power Output kW (hp) HC g/kW-hr (g/bHp-hr) CO g/kW-hr (g/bHp-hr) NOx gIkW-hr (g/bHp-hr) PM g kW-hr (g/bHp-hr) Smoke A/ [ IP* (Percent) 130kW ( 175 hp) 1.3 (1.0) 11.4 (8.5) 9.2 . (6.9) 0.54 (0.4) 20/15/50 75to<130 (l00to<175) -- -- 9.2 - (6.9) -- 20/15/50 37to<75 (50 to <100) -- -- 9.2 (6.9) -- 20/15/50 * Smoke opacity standards are repoited in terms of percent opacity during an acceleration mode, a lug mode, and the peak opacity on either the acceleration or lug mode. ------- -3- Table 2 Implementation Dates for Heavy Duty Diesel Engine Standards Power Output, kW (hp) Implementation Date* 130 to 560 (175 to 750) January 1, 1996 75 to <130 (lOOto <175) January 1, 1997 37 to <75 (50 to <100) January 1, 1998 >560 (>750) January 1, 2000 * The standards apply to all engines manufactured beginning on this date. The heavy duty diesel standards affect engines used primarily in agricultural, heavy constnaction, and industrial equipment. The regulation specifically excludes engines regulated by the Mining Safety and Health Administration (MSHA) for underground use and engines used in aircraft, for propulsion of locomotives, and in marine vessels. Small Spark Ifnition ( Gasoline) Engines EPA is regulating new spark-ignition engines with a power output at and below 19kW (25 hp) in two phases. The proposed Phase I regulation, which was published in the Federal Register on May 16, 1994 (59FR25399), identifies exhaust emission standards for HC, CO, and NOx for all new small gasoline engines manufactured on or after August 1, 1996. (In response to comments received on the proposal, EPA is considering implementing the final standards beginning with the 1997 engine model year rather than as of the August 1, 1996 date.) The proposed standards are based on engine class, which is defined by engine displacement and the type of equipment powered by the engine, i.e., handheld versus non-handheld. The specified engine classes are: Class I - non-handheld engines less than 22.5 cubic centimeters (cc) in displacement (e.g., those used in lawnmowers); Class U - non-handheld engines greater than or equal to 225 cc in displacement (e.g., those used in commercial lawn and garden equipment, garden tractors, generator sets); Class ifi - handheld engines less than 20 cc in displacement (e.g., those used in small string trimmers, edgers); ------- -4- Class IV - handheld engines equal to or greater than 20 cc and less than 50 cc in displacement (e.g., those used in chain saws, large trimmers, edgers); Class V - handheld engines equal to or greater than 50 cc in displacement (e.g., those used in commercial chain saws). The proposed Phase I standards by engine class are listed in Table 3. Table 3 Small Gasoline Engine Proposed Phase I Exhaust Emission Standards Engine Class HC + ?JOx g/kW -hr HC glkW-hr CO g kW-hr NOx g/kW -hr I 16.1 -- 402 — II 13.4 -- 402 — ifi -- 295 805 5.36 N -- 241 805 5.36 V -- 161 402 5.36 Phase LI standards for small gasoline engines, which will cover exhaust and evaporative emissions, are currently being negotiated through a regulatozy negotiation process that is expected to continue through May 1995. EPA is under court order to propose Phase II standards by May 1996. The court-ordered deadline for publishing final Phase II standards is May 1997. The standards themselves are expected to take effect in 2001. While emission standards for Phase II of the federal program have not yet been proposed, EPA estimated likely emission reductions resulting from the combined Phase I and IL standards for use in the California FIPs. The guidance in this memorandum is based on reductions proposed for the FIPs. The small gasoline engine regulations will affect small engines used in a broad range of equipment categories, including lawn and garden, utility, small farm and construction, and light industrial applications. Large engines, which dominate some nonroad equipment types, are not affected. The small gasoline engine regulations also specifically exclude engines used in marine vessels, underground mining equipment, motorcycles, aircraft, and recreational vehicles. This guidance identifies the equipment types included in the EPA-provided nonroad inventories for which emission reduction credits apply. ------- -5- Marine Engines The EPA Administrator signed proposed emission standards for marine engines on October 31, 1994. The proposed standards will be published in the Federal Register in early November 1994. The emission reductions cited in this guidance are based on EPA’s analyses done in support of the proposed rule. EPA has proposed emission standards for all new gasoline (spark-ignition) and diesel (compression-ignition) marine engines. The proposed standards for gasoline engines are divided into two groups: those for outboard engines and personal watercraft (PWC) (e.g., Jet Skis) on the one hand and those for inboard and stemdrive engines on the other. Gasoline Marine Engines EPA has proposed HC, NOx, and CO emission standards for gasoline-powered marine engines. For outboard engines and personal watercraft, the proposed HC standards are scheduled to be phased-in over a period of nine years, beginning with the 1998 model year and becoming more stringent each year. For stemdrive and inboard engines, the proposed HC standards are to become effective with the 1998 model year with no phase-in period. The proposed NOx and CO standards for all gasoline-powered marine engines are scheduled to begin with the 1998 model year with no phase-in. Diesel Marine Engines EPA has proposed to amend the existLng heavy duty diesel regulations to include diesel- powered marine engines. This approach would subject all marine diesel engines to the NOx, HC, CO, PM, and smoke standards that have been promulgated for land-based diesel engines with a power output of 130 kW or higher ( 175 lip). These standards would apply to all diesel-powered marine engines, regardless of power output. However, EPA has proposed two different effective dates based on an engine size cutoff of 560 kW. Marine engines with a power output below 560 kW would be subject to the standards as of January 1, 1999, and marine engines with a power output at 560 kW and above would be subject to the standards as of January 1, 2000. Other Engines While EPA has the authority to regulate other nonroad engines, SIP credit may be taken for only the court-ordered standards discussed above. At this time, neither a time frame nor a level of control has been identified for other nonroad engines not subject to court order. EPA is required by statute to promulgate final emission standards for locomotives by November 15, 1995. (See Section 213(a)(5) of the Clean Air Act Amendments of 1990.) The Agency’s policy regarding emission reductions resulting from future locomotive standards will be discussed in a separate memorandum. Emission Reduction Credits EPA has calculated emission reductions likely to result from final and proposed federal nonroad standards. The calculations incorporate EPA and industry estimates about equipment populations, survival, and usage rates as well as EPA emission factors. The result is an annual fleet average emission reduction percentage. The guidance below explains how to apply the fleet average emission reduction percentages to area-specific nonroad inventories by equipment type, after accounting for projected growth. ------- -6- Table 4 indicates which of the 79 equipment types contained in the EPA-developed nonroad emission inventories are affected by the three sets of court-ordered nonroad standards. While the engines subject to the heavy duty diesel standards are found primarily in the agricultural, heavy construction, and industrial equipment categories, not all of the equipment types in these general categories are powered by engines that fall within the affected horsepower ranges. Consequently, emission reductions should be applied on an equipment-type basis rather than to the entire category. Similarly, the small gasoline regulations generally apply to equipment categorized as lawn and garden, utility, small farm and construction, and light industrial. However, some equipment types in these categories are powered primarily by engines with a rated horsepower above 25, which is the cutoff for the regulation. Since it proved beyond the scope of this guidance to derive rule penetration rates for each equipment type, emission reductions are allocated to the 79 equipment types on an all-or-nothing basis. That is, the emission reduction credits provided in Table 5 aie assumed to apply (or not to apply) to all engines within an equipment type, even though some of the engines powering the indicated type of equipment may not be subject to the standard by virtue of being outside of the horsepower range to which the standard applies. EPA identified an equipment type as being eligible for the small gasoline emission reduction benefits based on the average horsepower of engines used in the equipment, as indicated by Table 2-04 of.the 1991 Nonroad Engine and Vehicle Emission Study (NEVES). The small gasoline assignments presented in Table 4 reflect equipment types that are powered predominantly by engines below 25 hp apd thus subject to the standards. Other equipment types within the same overall category most often use engines above 25 hp and so do not receive emission reduction benefits. The marine standards will have different effects on emissions from outboards and personal watercraft than on emissions from inboards and stemdrives, as mentioned earlier. Table 4 indicates whether the outboard/PWC (OBIPWC) or inboard/stemdrive ( lB/SD) benefits apply to each of the five vessel types listed in the EPA-provided nonroad inventories. Personal watercraft were not included in the EPA-provided nonroad inventories. While the EPA-supplied inventories are separated by gasoline 2-stroke and 4-stroke equipment and diesel equipment, specified reductions, if indicated, should be applied equally to gasoline 2-stroke and 4-stroke equipment, since EPA calculated overall reductions for the two categories combined. In cases where an identified equipment type can be powered by either diesel or gasoline engines, care should be taken to apply the correct emission reductions (or increases) to the correct inventory component. For example, for some equipment types, 2-stroke and 4-stroke gasoline engines are subject to the small gasoline standards, but if the same equipment is powered by a diesel engine, the heavy duty diesel standards may apply. While the court-ordered regulations are expected to set emission standards for HC, CO , and NOx (and in some cases particulate matter and smoke), the significance of the resulting emission reductions will vary by pollutant depending upon the significance of the uncontrolled emissions that the regulations aim to address. For example, NOx is the primary pollutant of concern from heavy duty diesel engines, and the heavy duty diesel emission standards will have the most effect on NOx emissions. It is unlikely that the HC and CO emissions will change much as a result of the heavy duty diesel regulations, and, consequently, this guidance assumes that there is no change. However, since small gasoline and recreational marine emissions are primary nonroad contributors to HC emissions, HC is the pollutant most targeted for emission reductions by those regulations (although changes in NOx occur as well). ------- .7- Table 4 Standards Applying to Nonroad Equipment Types Class Equipment Type 2-stroke 4-stroke Diesel £ rthnme s/Edgersf Brash Qitteis Small Gas Small Gas Lawnmowers Small Gas Small Gas I Leaf Blowers/Vacuums Small Gas Small Gas 1 Rear Engine Riding Mowers Small Gas Small Gas 1 Front Mowers Small Gas Small Gas I Chain Saws <4 hp Small Gas Small Gas — 1_ Shredders <5 hp Small Gas Small Gas — 1_ Tillers <5 hp Small Gas Small Gas Lawn and Garden Tractors Small Gas Small Gas — 1_ Wood Splitters Small Gas Small Gas MD Diesel 1_ Snowblowers Small Gas Small Gas Chippers/Stump Grinders MD Diesel I Commercial Turf Equipment Small Gas Small Gas 1 Other Lawn and Garden Equipment Small Gas Small Gas - 2 Aircraft Support Equipment MD Diesel 2 Terminal Tractors lID Diesel 3 All Terrain Vehicles (ATVs) 3 Minibikes 3 Off-Road Motoicycles 3 Golf Carts Small Gas Small Gas 3 Snowmobiles 3 specialty Vehicles Carts Small Gas Small Gas 4 Vessels v/Inboard Engines . Rec. Marine L B/SD Rec. Marine LB/SD 4 Vessels w/Outboard Engines Rec. Marine OB/PWC Rec. Marine OB/PWC 4 Vessels w/Stemdrive Engines Rec. Marine lB/SD Rec. Marine LB/SD 4 Sailboat Auxiliary Inboard Engines Rec. Marine lB/SD Rec. Marine LB/SD 4 Sailboat Auxiliary Outboard Engines Rec. Marine OB/PWC Rec. Marine OB/PWC 5 Generator Sets <50 lip Small Gas Small Gas 5 Pumps <50 hp Small Gas Small Gas 5 Air Compi ssors <50 lip Small Gas Small Gas 5 Gas Compressors <50 hp 5 Welders <50 hp Small Gas Small Gas 5 Pressure Washers <50 lip Small Gas Small Gas 6 Aerial Lifts 6 Forklifts MD Diesel 6 Sweepers/Scrabbers MD Diesel 6 Other General Industrial Equipment Small Gas Small Gas MD Diesel 6 Other Material Handling Equipment lID Diesel 7 Asphalt Payers MD Diesel 7 Tampers/Rammers Small Gas Small Gas 7 Plate Compactors Small Gas Small Gas 7 Concrete Payers lID Diesel 7 Rollers Small Gas MD Diesel 7 capers - MD Diesel ------- -8- Class Fguipment Type 2-stroke 4-stroke Diesel 7 Paving Equipment Small Gas Small Gas RD Diesel 7 urfacing Equipment Small Gas Small Gas 7 ignal Boards Small Gas Small Gas 7 iencheis I - ID Diesel 7 ore/Drill Rigs RD Diesel 7 Excavators LID Diesel 7 Concreteflndustrial Saws Small Gas Small Gas RD Diesel 7 Cement and Mortar Mixers Small Gas Small Gas 7 Cranes LID Diesel 7 Graders H]) Diesel 7 Off-Highway Tzudcs RD Diesel 7 Cnishing /Proc. Equipment LID Diesel 7 Rough Terrain Fodthfts ND Diesel 7 Rubber Tiied Loaders RD Diesel 7 RubberTiredDozers HDDiesel 7 Tractors/Loaders/Backhoes Crawler Tractors I-ID Diesel 7 RD Diesel 7 Skid Steer Loaders 7 Off-HIghway Tractors HD Diesel 7 Dumpers/renders Small Gas Small Gas 7 Other Constniction Equipment RD Diesel 8 2-WheeL Tractors Small Gas Small Gas 8 Agricultural Tractors H]) Diesel 8 Agricultural Mowers Small Gas Small Gas 8 Combines H]) Diesel 8 rayers Small Gas RD Diesel 8 alers . LIDDiesel 8 Tkllers >5 hp Small Gas Small Gas 8 wathers - RD Diesel 8 vdro Power Units Small Gas Small Gas 8 ther Agricultural Equipment H]) Diesel 9 Chain Saws >4 hp Small Gas Small Gas 9 hedders >5 hp Small Gas Small Gas 9 kidders ND Diesel 9 FellerWBunchers LID Diesel Class Codes I = Lawn and Garden 2 = Airport Service 3 = Recreational Equipment 4 = Recreational Marine 5 = Light Commercial 6 = Industrial 7 = Construction 8 = Agricultural 9 = Logging Table 5 provides the estimated annual emission reduction or increase percentages associated with each of the court-ordered nonroad standards for 1990 through 2010. Emission reductions appear as negative numbers, and increases appear as positive numbers. Since some controls on HC emissions result in an increase in NOx emissions and vice versa, some of the standards will cause one or the other of those emissions to increase. EPA calculated national annual emission reductions or increases for each standard by comparing a baseline inventory scenario to a control scenario, which incorporates estimates of future population and activity levels, equipment survival rates, and the new standards. The ------- -9- emission benefit analyses factor in differences in population and activity by equipment type to arrive at aggregate national emission reductions or increases for all equipment subject to the standards. The percentages provided in Table 5 should be applied equally to all equipment types designated in Table 4. Heavy Duty Diesel Table 5 Fleet Average Annual Emission Reduction Percentages Marine Inboard and Sterndrive Equation 1 below describes how the percent reductions (or increases) in Table 5 are applied to the emissions from the nonroad equipment types designated in Table 4, after accounting for growth. The results are projected emissions that incoiporate the anticipated effects of the couzt- ordered nonroad standards. Before the emission reductions in Table 5 can be applied to an area’s nonroad inventory, the 1990 base year emissions should be projected to future years based on the nonroad projection guidance issued on February 4,1994 in a memorandum from Philip A. Lorang to EPA Regional Office Air Division Directors. The memorandum is entitled “Guidance on the Projection of Nonroad Inventories to Future Years.” Small Gasoline Phase I Phase H Outboard and PWC Calendar Year NOx HC NOx HC NOx HC NOx 1990 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 1991 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 1992 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 1993 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 1994 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 1995 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 1996 -0.5% -4.5% +15.7% 0.0% 0.0% 0.0% 0.0% 1997 -1.7% -12.8% +44.3% 0.0% 0.0% 0.0% 0.0% 1998 -4.8% -19.0% +65.8% 0.0% 0.0% 0.0% 0.0% 1999 -7.8% -22.9% +79.6% -0.2% +0.8% ÷0.0% -0.0% 2000 -10.7% -25.2% +87.3% -1.0% +3.4% +0.2% -0.1% 2001 -13.5% -265% +91.7% -2.2% +7.7% +0.4% -0.2% 2002 -16.2% -35.1% +94.5% -4.0% +14.1% +0.8% -0.4% 2003 -18.8% -43.4% +96.2% -6.4% +22.5% ÷1.2% -0.7% 2004 -21.2% -51.4% +97.3% -9.4% +33.2% +1.8% -1.0% 2005 -23.5% -59.2% +97.9% -13.2% ÷46.2% ÷2.5% -1.4% 2006 -25.5% -67.0% +98.3% -17.6% +61.8% +3.4% -1.8% 2007 -27.2% -74.7% +98.7% -22.8% +80.0% +4.3% -2.3% 2008 -28.7% -82.3% +98.7% -25.9% +90.9% +4.9% -2.7% 2009 -29.9% -90.0% +98.7% -29.1% +102.2% +5.5% -3.0% 2010 -31.0% -90.0% +98.6% -32.4% +113.8% +6.2% -3.3% ------- - 10- Projected Emissionscy,j = Emissions 1 99 0 ,ij * growth factorcya * (1 + % changecy ) Equatibn 1 where CY = calendar year i = nonroad equipment type j = pollutant (HC or NOx) Emissions = HC or NOx in tons per summer or winter day % Change = percent reduction or increase in emissions from Table 5 Table 6 provides an example of how the emission reductions for HC identified in Table 5 for small gasoline engines would be applied to ozone season emissions from 2-stroke lawnmowers. The example follows the format of the EPA-supplied 1990 base-year nonroad inventories, which provide emissions in tons per s’immer or winter day (tpsd or tpwd) for 2- stroke, 4-stroke, and diesel engines within each nonroad equipment type. Table 6 Example HC Emission Reduction Calculation for Lawnmowers Reduction from Small 1990 HC Growth 1990 Emissions Gasoline Projected _________ Emissions Factor x Growth Standanis Emissions Calendar Year ( lpsd ) _________ ( tpsd ) _________ ( q sd ) 1990 9.15 1.00 9.15 0.0% 9.15 1991 1.01 9.24 0.0% 9.24 1992 1.02 9.33 0.0% 9.33 1993 1.03 9.42 0.0% 9.42 1994 1.04 9.52 0.0%’ 9.52 1995 1.04 9.52 0.0% 9.52 1996 1.05 9.62 -4.5% 9.19 1997 1.06 9.70 -12.8% 8.46 1998 1.07 9.79 -19.0% 7.93 1999 1.08 9.88 -22.9% 7.61 2000 1.08 9.91 -25.2% 7.41 2001 1.09 9.97 -26.5% 7.33 2002 1.10 10.07 -35.1% 6.53 2003 1.10 10.07 -43.4% 5.70 2004 1.11 10.17 -51.4% 4.95 2005 1.12 10.25 -59.2% 4.18 2006 1.13 10.34 -67.0% 3.41 2007 1.13 10.37 -74.7% 2.62 2008 1.14 10.43 -82.3% 1.84 2009 1.15 10.52 -90.0% 1.05 2010. 1.15 10.52 -90.0% 1.05 ------- — 11 — The numbers used in the example above, other than the percent reductions, are fictitious and should not be used in actual SIP subrnittals. Calculations similar to those shown in Table 6 should be performed for the appropriate engine types within each equipment type affected by the couit-ordered nonroad standards and for each pollutant, according to the equipment type mapping in Table 4 and the emission changes in Table 5. Benefits for Reformulated Gasoline If a state wishes to calculate the benefits of using reformulated gasoline in nonroad engines, those benefits should be applied to a future year nonroad inventory prior to calculation of the emission changes resulting from the court-ordered nonroad standards. EPA issued guidance for determining nonroad reformulated gasoline benefits in a March 17, 1994 memorandum from Philip A. Lotang and Robert E. Maxwell entitled “Nonroad Engine Hot Soak and Running Loss Emission Data Guidance” and the earlier August 18, 1993 memorandum from Phil Lorang entitled “VOC Emission Benefits for Nonroad Equipment with the use of Federal Phase 1 Reformulated Gasoline.” For areas using reformulated gasoline, states should apply the specified reformulated gas benefits separately to the evaporative and exhaust components of future year nonroad HC emissions. The evaporative/exhaust split in nonroad emissions can be derived from the composite HC inventory based on the guidance mentioned above. Once the separate reformulated gasoline benefits axe applied, the resulting evaporative and exhaust emissions should be re-combined to obtain composite projected HC emissions. The appropriate emission changes resulting from the court-ordered non.road standards should then be applied to those total future year HC emissions. This method is approximate because it overlooks some of the interaction between the fuel and engine emission regulations, but it is the best method available for applying reformulated gasoline benefits to the current inventories with a reasonable amount of effort. Heavy Duty Diesel Engines The methodology that EPA used to calculate aggregate annual NOx reductions is described in the regulatoiy support document for the heavy duty diesel regulations, which is available in the OMS section of the Technology Transfer Network (Tl’N) bulletin board. Annual benefit calculations were performed separately for each of the three applicable power ranges (50-100 hp, 100-175 hp, and 175+ hp), which have different implementation dates. Integrating these separate calculations yields the combined emission reductions for all equipment affected by the standards. Additional NOx reductions will accrue beyond 2010 due to the additional engine turnover. Because of the relatively long lives of heavy duty diesel engines, many unregulated engines will still be in use in 2010. EPA expects the maximum NOx reduction from the heavy duty diesel standards to be 37% in 2025, when the fleet is expected to have turned over. Small Gasoline Engines The draft regulatory support document for the proposed Phase I small gasoline standards describes the benefit calculations for the first phase of these regulations. That document is also available on the ‘TTN. EPA has refined its analysis since the Phase I standards were proposed, and the emission changes provided in this guidance reflect updates to those initial benefit calculations as well as to the percentages reported in a draft of this guidance. ------- - 12 - The estimated HC benefits of the combined Phase I and II standards are based on the benefits proposed in the California FIPs, which project a cumulative 90% HC reduction at full fleet turnover. The NOx increase resulting from the standards is a consequence of achieving the more significant reductions in HC. Since Phase U standards have not yet been negotiated, states may include a safety margin in their emission reduction estimates to allow for the possibility that the final regulations do not result in the HC emission reductions projected above. Table 7 below provides alternate annual emission reductions based on a lower cumulative Phase I and U benefit of 70%. (Table 5 assumes 90%.) States may wish to use the Table 7 reductions as a more conservative estimate of HC benefits from the Phase 11 small gasoline nile. The changes in NOx emissions remain as reported in Table 5. Table 7 Alternate HC Reductions for Small Gas Phase I and U Small Gasoline Phase I + II Calendar Year HC 1990 0.0% 1991 0.0% 1992 0.0% 1993 0.0% 1994 0.0% 1995 0.0% 1996 -4.5% -12.8% 1997 1998 -19.0% 1999 -22.9% 2000 -25.2% 2001 -26.5% 2002 -32.6% 2003 -38.4% 2004 -43.9% 2005 -49.2% 2006 -54.5% 2007 -59.7% 2008 -64.8% 2009 -70.0% 2010 -70.0% Marine Engines The estimated changes in HC and NOx emissions cited in Table 5 for marine engines are based on analyses done for the proposed standards. ------- -13- The proposed standards for gasoline-powered outboard engines and personal watercraft are expected to result in a 75.0 percent decrease in HC and a 263.5 percent increase in NOx when fully phased in and at fleet turnover. For gasoline-powered inboards and stemdrives, which have much lower baseline HC emissions than outboards, the focus of the proposed regulations is on NOx control. As a result of the proposed regulations, at fleet turnover, NOx emissions from inboards and stemdrives are expected to decrease by 7.7 percent, with an increase in HC of 14.3 percent. Because of the proposed nine-year phase-in period and the long lives of marine engines, marine emission levels will continue to change beyond 2010 as morn and more uncontrolled engines axe replaced by controlled engines. For the fleet of gasoline-powered marine engines as a whole, the eventual combined effect of the standards is anticipated to be a 70.1 percent drop in HC emissions and a 31.6 percent increase in NOx emissions. The proposal to regulate marine diesel engines may have the effect of reducing NOx emissions from marine vessels below the levels specified in this guidance. However, EPA is unable to include SIP credits for marine diesel engines at this time due to concerns regarding quantification of credits and applicability of the regulations to specific types of marine diesel engines. Conclusion Of the three sets of court-ordered nonroad standards discussed in this guidance, only the heavy duty diesel standards have been finalized. The estimated emission reductions cited for the other proposed standards reflect EPA’s cunent plans. While all of the emission reduction estimates are based on significant, detailed analysis, if the final standards are different than current assumptions, the emission reductions cited here may not occur. EPA recommends that states take such a possibility into consideration in their SIP planning. All of the proposed and final standards and their regulatory support documents will be placed on the OMS section of the UN bulletin board as they become available. Attachment cc Alan Eckert, OGC Charles Gray, Jr., OMS Lany Jones, ORD Robert Maxwell, OMS David Mobley, OAQPS Norm Possiel, OAQPS John Silvasi, OAQPS Mary Smith, OMS Richard Wilson, OAR ------- P. Redesignations ------- p. Redesignat ions P.1. Procedures for Processing Requests to Redesignate Areas to Attainment -- Sept. 4, 1992 memo from John Calcagni P.2. Approval and Promulgation of Maintenance Plan and Designation of Areas for Air Quality Planning Purposes for Carbon Monoxide State of New York (Proposed Rule) 58 FR 38108 (July 15, 1993) P.3. State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National inbient Air Quality (NAAQS) on or after November 15, 1992 - - Sept. 17, 1993 memo from Michael H. Shapiro P.4. Reclassification of Areas to Nonattainment and 15 Percent Rate-of-Progress Plans - - Sept. 20, 1993 memo from John S. Seitz ** Requirements for Reduced RVP in State Maintenance Plans - - Nov. 8, 1993 memo from Michael Horowitz (See Reid Vapor Pressure section] P.5. Use of Actual Emissions in Maintenance Demonstrations for Ozone and Carbon Monoxide (CO) Nonattainnient Areas - - Nov. 30, 1993 memo from D. Kent Berry P.6. Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio (Final Rule) 59 FR 48395 (Sept. 21, 1994) P.7. Use of Actual Emissions in Maintenance Demonstrations for Ozone and Carbon Monoxide (CO) Nonattainment Areas - - Nov. 30, 1994 memo from D. Kent Berry P.8. Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment - - Oct. 14, 1994 memo from Mary D. Nichols P.9. Limited Maintenance Plan Option for Nonclassifiable Ozone Nonattainment Areas - - Nov. 16, 1994 memo from Sally L. Shaver P.10. Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Florida (Direct Final Rule), 60 FR 41 (Jan. 3, 1995) P.11. Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Michigan (Final Rule) 60 FR 12459 (March 7, 1995) ** Potential Request from Colorado f or Permanent Change in Denver’s Reid Vapor Pressure (RVP) Standard -- Apr. 4, 1995 memo from David Cole (See Reid Vapor Pressure section] ------- ** Inspection/Maintenance Flexibility Amendments (Proposal), 60 FR 20934 (Apr. 28, 1995) (See Inspection and Maintenance section] P.12. Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard -- May 10, 1995 memo from John S. Seitz P.13. Inspection/Maintenance Program Requirements -- Provisions for Redesignation, 60 FR 1735 (Jan. 5, 1995) ------- j2, IO S?l UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards Research Triangle Park. North Carolina 27711 4 SEP 1992 MEMORANDUM SUBJECT: Procedures for ate Areas to Attainment FROM: John Calcagni, Air Quality TO: Director, Air, and Toxics Division, Re4ions I and I v Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X Purpose The Office of Air Quality Planning and Standards (OAQPS) expects that a number of redesignation requests will be submitted in the near future. Thus, Regions will need to have guidance on the applicable procedures for handling these requests, including maintenance plan provisions. This memorandum, therefore, consolidates the Environmental Protection Agency’s (EPA’S) guidance regarding the processing of requests for redesignation of nonattainment areas to attainment for ozone (03), carbon monoxide (CO), particulate matter (PM—]O), sulfur dioxide (SO,), nitrogen dioxide (NO,), and lead (Pb). Regions should use this guidance $ a genera! framework for drafting Federal Register notices prtaining to redesignation requests. Special concerns f or areas seeking redesignation from unclassifiable to attainment will be addressed on a case—by—case basis. Backaround Section 1o7(d)(3)(E) of the Clean Air Act, as amended, states that an area can be redesignated to attainment if the following conditions are met: Processing Requests ------- 2 1. The EPA has determined that the national ambient air quality standards (NAAQS) have been attained. 2. The applicable implementation plan has been fully approved by EPA under section 110(k). 3, The EPA has determined that the improvement in air quality is due to permanent and enforceable reductions in emissions. 4. The State has met all applicable requirements for the area under section 110 and Part D. 5. The EPA has fully approved a maintenance plan, including a contingency plan, for the area under section l75A. Each of these criteria is discussed in more detail in the following paragraphs. Particular attention is given to. maintenance plan provisions at the end of this document since maintenance plans constitute a new requirement under the amended Clean Air Act. Exceptions to the guidance will be considered on a case—by-case basis. 1. Attainment of the Standard The State must show that the area is attaining the applicable NAAQS. There are two components involved in making this demonstration which should be considered interdependently.. The first component relies upon ambient air quality data. The data that are used to demonstrate attainment should be the product of ambient monitoring that is representative of the area of highest concentration. These monitors should remain at this same location for the duration of the monitoring period requ ed f or demonstrating attainment. The data should be collected and quality-assured in accordance with- 40 CPR 58 and recorded in the Aeroinetric Information Retrieval System (AIRS) in order for it to be available to the public for review. For purposes of redesignation, the Regional Office should verify that the integrity of.the air quality monitoring network has been preserved. FOr. PII’ 1O, an area may be considered attaining the NMQS if the number f expected exceedances per year, according to 40 CYR 50.6, is lul than or equal to 1.0. For 03? the area must show that the average annual number of expected exceedances, according to 40 CFR 50.9, is less than or equal to 1.0 based on data from all monitoring sites in the area or it. affected downwind environs. In making this showing, both P11-10 and 03 must rely on 3 complete, consecutive calendar years of quality-assured air quality monitoring data, collected in accordance with 40 CPR 50, Appendices H and K. For CO, an area may be considered attaining the NAAQS if there are no violations, as determined in accordance ------- 3 with 40 CFR 50.8, based on 2 complete, consecutive calendar years of quality—assured monitoring data. For SO 2 , according to 40 R 50.4, an area must show no more than one exceedance annually ad f or Pb, according to section 50.12, an area may show no exceedances on a quarterly basis. The second component relies upon supplemental EPA-approved air quality modeling. No such supplemental modeling is required for 03 nonattainment areas seeking redesignation. Modeling may be necessary to determine the representativeness of the monitored data. For pollutants such as SO 2 and CO, a small number of monitors typically is not representative of areawide air quality or areas of highest concentration. When dealing with SO 2 , Pb, PM-l0 (except for a limited number of initial moderate nonattainment areas), and Co (except moderate areas with design values of 12.7 parts per million or lower at the time of passage of the Clean Air Act Amendments of 1990), dispersion modeling will generally be necessary to evaluate comprehensively sources’ impacts and to determine the areas of expected high concentrations based upon current conditions. Areas which were designated nonattainment based on modeling will generally not be redesignated to attainment unless an acceptable modeling analysis indicates attainment. Regions should consult with OAQPS for further guidance addressing the need for modeling in specific circumstances. 2. State Implementation Plan (SIP A prova1 Th SIP for the area must be fully approved under section 110(k),’ and must satisfy all requirements that apply to the area. It should be noted that approval action on SIP elements and the redesignation request may occur simultaneously. An area cannot be redesignated if a required element of its plan is the subject of a disapproval; a finding of failure to submit or to implement the SIP; or partial, conditional, or limited approval. However, this does not mean that earlier issues with regard to the SIP will be reopened. Regions should not reconsider those things that have already been approved and for which the Clean Air Act Amendments did not alter what is required. In contrast, to the extent the Amendments add a requirement or alter an existing z jj ireaent so that it adds something more, Regions should coi j r those issues. In addition, requests from areas known to Iffacted by diapers ion techniques which are - inconsistáE ’iith EPA guidance will continue to be considered unapprovable under section 110 and will not qualify for redesignation. Section 110(k) contains the requirements for EPA action on plan submissions. It addresses completeness, deadlines, full and partial approval, conditional approval, and disapproval. ------- 4 3. Permanent and Enforceable Improvement in Air OuaLitV The State must be able to reasonably attribute the improvement in air quality to emission reductions which are permanent and enforceable. 2 Attainment resulting f row temporary reductions in emission rates (e.g., reduced production or shutdown due to temporary adverse economic conditions) or unusually favorable meteorology would not qualify as an air quality improvement due to permanent and enforceable emission reductions. - In making this showing, the State should estimate the percent reduction (from the year that was used to determine the design value for designation and classification) achieved from Federal measures such as the Federal Motor Vehicle Control Program and fuel volatility rules as well as control measures that have been adopted and implemented by the State. This estimate should consider emission rates, production capacities, and other related information to clearly show that the air quality improvements are the result of implemented controls. The analysis should assume that sources are operating at permitted levels (or historic peak levels) unless evidence is presented that such an assumption is unrealistic. 4. Section 110 and Part D Raauirements For the purposes of redesignation, a State must meet all requirements of section 110 and Part D that were applicable prior to submittal of the complete redesignation request. When evaluating a redesignation request, Regions should not consider whether the State has met requirements that come due undQr the Act after subini:tal of a complete redesignation request. 2 This is consistent with EPA’S existing policy on redesignations as stated in an April 21, 1983 memorandum titled “Section 107 Designation Policy S msI. ry.” This memorandum states that in order for an area to be redesignated to attainment, the State must show that actual enforceable emission reductions are responsible for the recent air quality improvement.” This element of he policy retains its validity under the amended Act pursuant t .ction 193. (Note: other aspects of the April 21, 1983 iaemor*I 4Ua have since been superseded by subsequent memorandui i terested parties should consult with OAQPS before relying on these aspects, e.g. those relating to required years of air quality date.] 3 Under section 175A(c), however, the requirements of Part D remain in force and effect for the area until such time as it is redesignated. Upon redesignation to attainment, the requirements that became due under section 175A(c) after submittal of the complete redesignation request would no longer be applicable. ------- 5 However, any requirements that came due prior to sith Ittal of the redesignation request must be fully approved into the plan at or before the time EPA redesignates the area. To avoid confusion concerning what requirements will be applicable for purposes of redesignation, Regions should encourage States to work closely with the appropriate Regional Office early in the process. This will help to ensure that a redesignation request submitted by the State has a high likelihood of being approved by EPA. Regions should advise States of the practical planning consequences if EPA disapproves the redesignation request or if the request is invalidated because of violations recorded during EPA’s review. Under such circumstances, EPA does not have the discretion to adjust schedules for implementing SIP requirements. As a result. an area may risk sanctions and/or Federal implementation plan implementation that could result from failure to meet SIP submittal or implementation requirements. a. Section 110 Requirements Section 1l0(a)(2) contains general requirements for nonattainment plans. Most of the provisions of this section are the same as those contained in the pre-amended Ace. We will provide guidance on these requirements as needed. b. Part D Requirements Part D consists of general requirements applicable to all areas which are designated nonattainment based on a violation of the NAAQS. The general requirements are followed by a series of subparts specific to each pollutant. The general requirements appear in subpart 1. The requirements relating to 03, CO, P11-10, SO 2 , NO 2 , and Pb appear in subparts 2 through 5. In those instances where an area is subject to both the general nonattainment provisions in subpart 1 as well as one of the pollutant-specific subparts, the general provisions may be subsumed within, or superseded by, the more specific requirements - of subparts 2 through 5. If an qa was not classified under section 181 for 03 or section CO, then that area is only sub)ect to the provision iubpart 1, “Wonattairuient Areas in General.” In addition N .vant provisions in subpart 1, an 0 and CO area, which is ctaaeifi.d, must meet all applicabl, requirements in subpart 2, “Additional Provisions for Ozone Nonattainment Areas,” and subpart 3, “Additional Provisions for Carbon Monoxide - 4 Genara l guidance regarding the requirements for SIP’S may be found in the “General Preamble to Title I of the 1990 Clean Air Act Amendments,” 57 FR 13498 (April 16, 1992). ------- 6 Nonattainment Areas,” respectively, before the area may be redesignated to attainment. All P14-10 nonattajnment areas (whether classified as moderate or serious) must similarly meet the applicable general provisions of subpart 1 and the specific P14-10 provisions in subpart 4, “Additional Provisions for Particulate Matter Nonattainment Areas.” Likewise, SO 2 , NO,, and Pb nonattainment areas are subject to the applicable general normattainment provisions in subpart 1 as well as the more specific requirements in subpart 5, “Additional Provisions for Areas Designated Nonattainment for Sulfur Oxides, Nitrogen Dioxide, and Lead.” i. Section 172(c Requirements This section contains general requirements for nonattainment plans. A thorough discussion of these requirements may be found in the General Preamble to Title I (57 FR 13498 (April 16, 1992)]. The EPA anticipates that areas will already have met most or all of these requirements to the extent that they are not superseded by more specific Part D requirements. The requirements for reasonable further progress, identification of certain emissions increases, and other measures needed for attainment will not apply for redesignations because they only have meaning for areas not attaining the standard. The requirements for an emission inventory will be satisfied by the inventory requirements of the maintenance plan. The requirements of the Part D new source review program will be replaced by the prevention of significant deterioration (PSD) program once the area has been redesignated. However, in order to ensure that the PSD program will become fully effective immediately upon redesignation, either the State must be delegated the Federal PSD program or the State must make any needed modifications to its rules to have the approved PSD program apply to the affected area upon redesignation. ii. Conformity The State must work with EPA to show that its SIP provisions are consistent with section 176(c) (4) conformity requirements. The redesignation request should include conformit ocedures, if the State already has these procedures in place. : itionally, we currently interpret the conformity requireme jtb apply to attainment areas • However, EPA has not yet issuedklts conformity regulations specifying what areas are subject to the conformity requirement. Therefore, if a State does not have conformity procedures in place at the time that it submits a redesignation request, the State must commit to follow EPA’S conformity regulation upon issuance, as applicable. If the State submits the redesignation request subsequent to EPA’s issuance of the conformity regulations, and the conformity requirement became applicable to the area prior to submission, ------- 7 the State must adopt the applicable conformity requirements before EPA can redesignate the area. 5. Maintenance Plans Section 107(d)(3)(E) of the amended Act stipulates that for an area to be redesignated, EPA must fully approve a maintenance plan which meets the requirements of section 175A. A State may submit both the redesignation request and the maintenance plan at the same time and rulemaking on both may proceed on a parallel track. Maintenance plans may, of course, be submitted and approved by EPA before a redesignation is requested. However, according to section 175A(c), pending approval of the maintenance plan and redesignation request, all applicable nonattainment area requirements shall remain in place. Section 175A defines the general framework of a maintenance plan. The maintenance plan will constitute a SIP revision and must provide for maintenance of the relevant NAAQS in the area for at least 10 years after redesignation. Section 175A fu±ther states that the plan shall contain such additional measures, if any, as may be necessary to ensure such maintenance. Because the Act requires a demonstration of maintenance for 10 years after an area is redesignated (not 10 years after submittal of a redesignation request), the State should plan for some lead time for EPA action on the request. In other words, the maintenance demonstration should project maintenance for 10 years, beginning from a date which factors in the time necessary for EPA review and approval action on the redesignation request. In determining the amount of lead time to allow, States should consider that section 107(d)(3)(D) grants the Administrator up to 18 months from receipt of a complete submittal to process a redesignation request. The statute also requires the State to submit a revision of the SIP 8 years after the original redesignation request is approved to provide for maintenance of the NAAQS for an additional 10 years following the first 10-year period (see section 175A(b)]. In addition, the maintenance plan shall contain such contingency measures as the Administrator deems necessary to ensure propt correction of any violation of the NAAQS (see section l751 &)]. The Act provides that, at a minimum, the contingens jsasures must include a requirement that the State will implelént all measures contained in the nonattainient SIP prior to red.signation. Failure to maintain the NAAQS and triggering of the contingency plan will not necessitat. a revision of the SIP unless required by the Administrator, as stated in section 175A(d). The following is a list of core provisions that vs anticipate will be necessary to ensure maintenance of the relevant NAAQS in an area seeking redesignation from ------- 8 nonattainment to attainment. We therefore recommend that States seeking redesignation of a nonattainment area consider these provisions. However, any final EPA determination regarding the adequacy of a maintenance plan will be made following review of the plan submittal in light of the particular circumstances facing the area proposed for redesignation and based on all relevant information available at the lime. a. Attainment Inventory The State should develop an attainment emissions inventory to identify the level of eaissipns in the area which is sufficient to attain the NAAQS. This inventory should be consistent with EPA’S most recent guidance on emission inventories for rionattainment areas available at the time and should include the emissions during the time peri; i associated with the monitoring data showing attainment. 6 Source size thresholds are 100 tons/year for SO,, NO,, and PM-lO areas, and’5 tons/year for Pb based upon 40 CFR 51.100(k) and 51.322, as well as established practice for AIRS data. The source size threshold for serious PM-b areas is 70 tons/year 5 wIlere the State has made an adequate demonstration that air quality has improved as a result of the SIP (as discussed previously), the attainment inventory will generally be the actual inventory at the time the area attained the standard. 6 The EPA’S current guidance on the preparation of emission inventories for 01 and CO nonattainment areas is contained in the following documents: “Procedures for the Preparation of Emission Inventories for Carbon Monoxide and Precursors of Ozone: Volume I” (EPA—450/4-91—0l6), “Procedures for the Preparation of Emission Inventories for Carbon Monoxide and Precursors of Ozone: Volume II ” (EPA—450/4—91—014), “Emission Inventory Requirements for Ozone State Implementation Plans” (EPA—450/4-91-ObO), “Emission Inventory Requirements for Carbon Monoxide Implementation Plans” (EPA-450/4-91’.Oll), “Guideline for Regulatory Application of the Urban Airshed Model” (EPA-450/4-91- 013), “Proc 4ur.s for Emission Inventory Preparation: Volume IV, Mobile Sou S” (EPA—450/4-81—026d), and “Procedures for P*eparing. - desion Inventory Projections” (EPA-450/4-91-O]9). The EPA does not currently have specific guidance on attainment emissions inventories for 502. In lieu thereof, States are referred to the guidance on emissions data to be used as input to modeling demonstrations, contained in Table 9.1 of EPA’S “Guideline on Air Quality Models (Revised) (EPA—450/2—78—027R), July 1987, which is generally applicable to all criteria pollutants. Emission inventory procedures and requirements documents are currently being prepared by OAQPS for PM-b and Pb; these documents are due for release by summer 1992. ------- 9 according to Clean Air Act section 189(b)(3). However, the inventory should include sources below these size thresholds if these smaller sources were included in the SIP attaii’ t demonstration. Where sources below the 100, 70, and 5 tons/year— size thresholds (e.g., areas with smaller source size definitions) are subject to a State’s minor source permit program, these sources need only be addressed in the aggregate to the extent that they result in areawide growth. For 03 nonattainment areas, the inventory should be based on actual “typical summer day” emissions of 01 precursors (volatile organic compounds and nitrogen oxides) during the attainment year. This will generally correspond to one of the periodic inventories required for nonattainment areas to reconcile milestones. For CO nonattairiment areas, the inventory should be based on actual “typical CO season day” emissions for the attainment year. This will generally correspond to one of the periodic inventories ‘required for nonattainment areas. b. Maintenance Demonstration A State may generally demonstrate maintenance of the NAAQS by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS. Under the Clean Air Act, many areas are required to submit modeled attainment demonstrations to show that proposed reductions in emissions will be sufficient to attain the applicable NAAQS. For these areas, the maintenance demonstration should be based upon the same level of modeling. In areas where no such modeling was required, the State should be able to rely on the attainment inventory approach. In both instances, the demonstration should be for a period of 10 years following the redesignation. Where modeling is relied upon to demonstrate maintenance, each plan should contain a summary of the air quality concentrations expected to result from application of the control strategy. In the process, the plan should identify and describe the dispersion model or other air quality model used to project ambient concentrations (see 40 CFR 51.46). In ei case, to satisfy the demonstration requirement the State should project emissions for the 10-year period following redesignation, either for the purpose of showing that emissions will not ncrease over the attainment inventory or for conducting modeling. The projected inventory should consider future growth, including population and industry, should be consistent 7 Guidance for projecting emissions may be found in the emissions inventory guidance cited in footnote 6 ------- 10 with the attainment inventory, and should document data inputs and assumptions. All elements of the demonstration (e.g., emission projections, new source growth, and m deling) should be consistent with current EPA modeling guidance. For O and CO, the projected emissions should reflect the expected actual emissions based on enforceable emission rates and typical production rates. For Ca, a State should address the areawide component of the maintenance demonstration either by showing that future Co emissions will not increase or by conducting areawide modeling. Preferibly, the State should carry out hot-spot modeling that is consistent with the Guideline on Air Quality Models (Revised), in order to demonstrate maintenance of the NAAQS. In particular, if the nonattainment problem is related to a pattern of hot-spots then hot-spot modeling should generally be conducted. However, hot-spot modeling is not automatically required. For example, if - the nonattainment problem was related solely to stationary point sources, or if highway improvements have been implemented and the associated emission reductions and travel characteristics can be qualitatively documented, then hot-spot modeling is not required. In such cases, adequate documentation as well as the concurrence of Headquarters is needed. Any assumptions concerning emission rates must reflect permanent, enforceable measures • In other words, a State generally cannot take credit in the maintenance demonstration for reductions unless there are regulations in place requiring those reductions or the reductions are otherwise shown to be permanent. Therefore, the State will be expected to maintain its implemented control strategy despite redesignation to attainment, unless such measures are shown to be unnecessary for maintenance or are replaced with measures that achieve equivalent reductions (see additional discussion under “Contingency Plan”). Emission reductions from source shutdowns can be considered permanent and enforceable to the extent that those shutdowns have been reflected in the SIP and all applicable permits have been modified accordingly. Mode1ixq used to demonstrate attainment may be relied upon in the mai$ e demonstration where the modeling conforms to current E j uidance and where the State has projected no significalanges in the modeling inputs during the intervening time. Wh.t the original attainment demonstration may no longer be relied upon, States will be expected to remodel using current 8 The EPA-approved modeling guidance may be found in the following documents: “Guideline on Air Quality Models (Revised),” OAQPS, RTP, NC (EPA—450/2—78—027R), July 1986; and “PM—b SIP Development Guideline,” OAQPS, RTP, NC (EPA-450/2-86— 001), June 1987. ------- 11 EPA referenced techniques. 9 This may be necessary where, for example, there has been a change in emissions or a dian in the siting of new sources or modifications such that air quality may no longer be accurately represented by the existing deling. c. Monitoring Network Once an area has been redesignated, the State should continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR Part 58, to verify the attainment status of the area. The maintenance plan should contain provisions for continued operation of air quality monitors that will provide such verification. In cases where measured mobile source parameters (e.g., vehicle miles traveled congestion) have changed over time, the State may also need to perform a saturation monitoring study to determine the need for, and location of, additional permanent monitors. d. Verification of Continued Attainment Each State should ensure that it has the legal authority to implement and enforce all measures necessary to attain and to maintain the NAAQS. Sections 110(a)(2)(3) and (F) of the Clean Air Act, as amended, and regulations promulgated at 40 CFR 51.110(k), suggest that one such measure is the acquisition of ambient and source emission data to demonstrate attainment and maintenance. Regardless of whether the maintenance demonstration is based on a showing that future emission inventories will not exceed the attainment inventory or on modeling, the State submittal should indicate how the State will track the progress of the maintenance plan. This is necessary due to the fact that the emission projections made for the maintenance demonstration depend on assumptions of point and area source growth. One option for tracking the progress of the maintenance demonstration, provided here as an example, would be for the State to periodically updat. the, emissions inventory. In this case, the maintenance plan should specify the frequency of any planned in!emtory updates. Such an update could be based, in part, on annual AIRS update and could indicate new source growth ant other changes from the attainment inventory (e.g., changes in. vehicle miles travelled or in traffic patterns). As an alternativ, to a complete update of the inventory, the State may choose to do a comprehensive review of the factors that were used in developing the attainment inventory to show no - significant change. If this review does show a significant change, the State should then perform an update of the inventory. 9 See references for modeling guidance cited in footnote 8. ------- 12 Where the demonstration is based on modeling, an option for tracking progress would be for the State to periodically (typically every 3 years) reevaluate the modeling assumptions and input data. In any event, the State should monitor the indicators for triggering contingency measures (as discussed below). e. Contingency Plan Section 175k of the Act also requires that a maintenance plan include contingency provisions, as necessary, to promptly correct any violation of the XAAQS that occurs after redesignation of the area. These contingency measures are distinguished from those generally required for nonattainment areas under section l72(c)(9) and those specifically required for 01 and Co nonattainnent areas under sections l82(c)(9) and 1 7(a)(3), respectively. For the purposes of section 175k, a State is not required to have fully adopted contingency measures that will take effect without further action by the State in order for the maintenance plan to be approved. However, the contingency plan is considered to be an enforceable part of the SIP and should ensure that the contingency measures are adopted expediently once they are triggered. The plan should clearly identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific time limit for action by the State. As a necessary part of the plan, the State should also identify specific indicators, or triggers, which will be used to determine when the contingency measures need to be implemented. Where the maintenance demonstration is based on the inventory, the State may, for example-, identify an “action level” of emissions as the indicator. If later inventory updates show that the inventory has exceeded the action level, the State would take the necessary steps to implement the contingency measures. The indicators would allow a State to take early action to address potential violations of the NAAQS before they occur. By taking early action, States may be able to prevent any actual violations of the WAAQS and, therefore, eliminate the need on the part of EPA to redesignate an area to nonattainment. Other 1 icators to consider include monitored or modeled violations the NAAQS (due to the inadequacy of monitoring data in some situE tions). It is important to note that air quality data in excess of the NAAQS will not automatically necessitate a revision of the SIP where implementation of contingency measures is adequate to address the cause of the violation. The need for a SIP revision is subject to the Administrator’s discretion. The EPA will r- ew what constitutes a contingency plan on a case-by-case basis. t a minimum, it must require that the State will implement all . asures contained in the Part D nonattainment ------- 13 plan for the area prior to redesignation (see section 175&(d)J. This language suggests that a State may submit a SIP revision at the time of its redesignation request to remove or reduce the stringency of control measures. Such a revision can he a roved by EPA if it provides for compensating equivalent re xtions. A demonstration that measures are equivalent would have to include appropriate modeling or an adequate justification. Alterna- tively, a State might be able to demonstrate (through EPA-approved modeling) that the measures are not necessary for maintenance of the standard. In either case, the contingency plan would have to provide for implementation of any measures that were reduced or removed after redesignation of the area. Summary As stated previously, this memorandum consolidates EPA’S redesignation and maintenance plan guidance and Regions should rely upon it as a general framework in drafting Federal Reaister notices. It is strongly suggested that the Regional Offices share this document with the appropriate States. This should give the States a better understanding of what is expected from a redesignation request and maintenance plan under existing policy. Any necessary Changes to existing Agency policy will be made through our action on specific redesignation requests and the review of section 175k maintenance plans for these particular areas, both of which are subject to notice and comment rulemaking procedures. Thus, in applying this memorandum to specific circumstances in a rulemaking, Regions should consider the applicability of the underlying policies to the particular facts and to comments submitted by any person. If your staff members have questions which require clarification, they may contact Sharon Reinders at (919) 541-5284 for 03— and CO-related issues, and Eric Ginsburg at (919) 541—0877 for SO 2 —, PM—b—, and Pb—related issues. cc: Chief, Air Branch, Regions I-X John Cabaniss, OMS Denise Devoe, OAQPS Bill Laxton, TSD Rich Ossias, OGC John Rilnic, SSCD JohnI tz, OAQPS Mike- SbIpiro, OAR LydiaW*qman, o Ps ------- A I’’ 3 Qg FeaLp J - Va . 58, 134 I hwsday, Ju1y 5. 19 3 P opçae i Rule& - •-- -- . .- L..- - - en award of .du t1ona1 a.efj - .**iU: n1Tunegtg m dbsta Iv.dnii. .- 101-649.104 StaL 2399, cad ifled at 42 bUowlngih ofe - orbefat AugustiI,19ø3. •. U.S.C . .? ! -7671q.)B etheQfyo deoendsntwi!ew ‘r Afl .hauid.be . area violated C L) VA baa notified the ntaran Cf the addressed to: Wfl!fitmJ; MuazynsU th* a) sthlIdard In 1989, the Act adverse action. and ‘ I- - PLVAct(ng F gf coal AdminIa etar. •- u n’iinL .J the nonattalnme!it (LI) VA hu provided the vetara with ; EnVI1 OO aOtII P Ot 5C ss1 ucy, desfg!rathtn of thearee end expanded ft O period of 80 days In Whkh to de t ri* Wew boundarfeeto fnduds all of Ooondage , Idance for the purpose p [ ahawing. Hew York tozm County (ai tf on 1O?(d)f1j(C)ft) . that the ed’WIdIoflaI M& d i itho . çpf at thu stat. sulanltlali are Fuitb.nnoin. It we ’ cleNthed by not be red w ”4 -: lb. followIn addresses for opezetlon of law us low moderat. C X) (21 Wb the ieductfcn Is hued saWy tnupectfafl dsrluguoniiai busIness noneftafnmeut ewe. fth Ii defined & on wnttan , ctui hours .. an area expeileodng CX) h utTatfOfl5 InformaUan u to - - . abo s the eight-hour atuidard. but lees status vided - jija.zt4i A y, •- 4MaA N. Yak I • 0 thtth.fn lbimadani .. - .. dIffi*.t40a1R.1.333) detezwln.thei - -. •• •...‘. Mtly.afrqushtydafa ___ ____ 3.11.- the Slate ear monitosixig (‘) VA Will Sat fld att 5 en Air Rasowoss. so wolf Ras&Amsay;N network that (htgindags — a piwdwlf on notice-u - y i - . •. .... ..Coun y ha. th.a) i., u.. .ot -.a-I.slP. . - - .. q ijua. iju .In i Oa ‘i.ai. ‘— . - . 1. 1 UP5 U 7 uiW I ._jft i_..,.t.I ._... J 3 F I1 II ’ ’ .. . . v’ wui Nfl UUUW u WV UIflH o. . Ci.I.1 4 u 001 ntew . i aus withi ‘ ‘thd*oá iaeo to lbs presonL .da cnsI — , - - .uVw.i .1 w-— . - • -. -. - inductIon In —4-. .. Fidesi 1034A, ThtoOZ5 JflID søout to ply with — 3* U3C 511 sw i Naw York 1O27 __ __ IFS Des. S i Mon VtIM 2317. , . a a) ‘ N S . Pl i8 -$IFP( (TA 5V e’tAU I SW. eed jiCeuMy on Navesnbei - -7..-.; ., 13.clgimd . 14 AL PRO ION .. 10 .3(11 and lfloI NA IQ . J’ ’-.y 32, 19 . New .- AGENCY . :.. the t___ 4 OCFRP I S2e 1dSI __ ___ __ __ ( 5 1 gb ., I Ow*a’t N..-NV $I,,I ,W’llua t msst.tbswh1 I aon ” The 4W 94 1. . Ja)) fffi1AT .mblon4 a ir qualIty . - ____ Ares.forAfrOlaIIIyPbunnW . . ___ uTy.nd !o .__‘ P°e’ - 6Intafn lw.tsed splaIeiv1uI5 at New Yore fi i..i ... it WD. - ‘ ____ ______ _ 2,1*7Sew — _______ p of the Qty of Syrece.e In - . - - OAoidags County. New York i MN: • _ .4i.4 A’ MflI1 5 SU MY The Enviro sntd?to& ff “ 4iiii’ ’ ie ’ 107sf (ha- 5. Agency (EPA) Is announcing Its b ’ ” z 1177A ii nonaafl(u1T e1twltkre 5p&L. t °’• IA_) to redesignate Onondage County kJ to (hi CX) ILAAQ&(43 FR. 8962 and(4 - p 1—m . . -— °‘ York State to attainment of the FR 5119.) EU accordance witk..’ : - ___ ___ quality standards far 110 of the 1977 Act. New York Sl.t. (CD) and to a a CGSW fm’the -. . that will ( Ii..uw t x’____ . onat” ’ent ares In 3979. ‘* tally - - u:ape. z .-”-- &atvesa.t ‘ -— 4 ’ ___ . s d.- y s. f k . IA... . a - .e( ttfl . .I D.Ial TI IIIS .I& S 55- IJU f US WI 1.7. l5 IWW 11 $ IIWW W •5 - —4 _ 5 State submitted e ma ’ . pt ’ of the 1977 Ad. (Se. 90 (7R 52.1673. - lIlIi*. w b I.i th.& a , s. ...4 to redesfgeatoib.C a. ks 31 50 FR 25073.) In Its P.)lsw York Stats mess ftipo __ib .. .g . County CD ncnattaSnm I ewe * .ed’ p ).ded that Onondags (‘- . .ntywiM: ___ n000tt.lnment to at h ii. nt . In thW ? “ attain the CO .tandardby December31, atleta. - -——- -.. .ctlon EPA Ii propcslxi* to app1v.1 4 eW 1982. Subsequently. on Mirth 3,1984. - sinia- - - - Ya s— .r theym tIm EPArednord th. gins of the . - .. . hut wat . th *a. thsA cyd.ddu o seaabewues am th in . i 17SA ‘ ianatf lnvnent area to the CO hot-epotat N1L.’.L. ___ an O7 3) l of (ha ( ieen Mr Act, : - *he 4i.fm .dlcm of AImlind end Lad — ___ ___ fir wJ nL...ana gfl Adedi Sl t . of SyN{—Ia . - 1 g .- ”ions. ruspedively. UIi1 EaàT . (49 FR 6439) The batepot monitor tsdu4 ’t £ I . 1 f áa Oc1a b eccad vIo1ati ofib . .‘ ‘ t from-c . Z *aiuI,r IPIUW W i wdfhscmsr. a fodareffy abla . WxI 1983 to 1908 and In 19e’ . - -• - Oa.a j i.y IL*9NJ of the CX) Slate lemontstfonPt n 61? -‘ On Hov.mhu 16.1990. the SOIIAIIt .YOIk S.ga tsa d I&b d I Onesfogs Cairety. * (thi Act) wu amended. (PUkL , baa of ------- & iiI ag1st.r I VoL 58, No. 1341 Thwsdq y 3.5, 199 l Pxopoed,Iulee ETI1UIIOI s. I ax1x of17i. A flsta apedfic reouikmnàts that so siso must meet In or I to adesigasted frow 0 o ” ”meflttO tI.lit’nent . They arr 1. The sies b. st .d lb. appU bIe NML ______ a. The esm Mis I 4I P1riJL..JS1P ued 4 1l k) A aa4th..e. must hive mst aUmievmtw 4 . L. . . under e ee 110 eed D of the Ad uatbs perminaet d .J ....U.md maLn ’ pIee as 17M Section IYSft also de8nss e eLsui 1 iLs of en 4y JAi nteusn plee. ‘I eIinenti . a bu.year m v t y: ______ fortenyusr saft Aap i.th. ledeulguatlon iequeiäLq iw.jr measures. The Ad reç 1res.thutate to submits revised m ‘ic p4so might yearuaftm ,dwignadoL .Ths revised- — must wcontinüed slni .nanriii of the stondard f ans d1tlim I yemu. he th follaW ijuctIou, ‘A analyzes New Tmk’a uhenltIal with totheis u gr .’tl?u ‘ .. • D I. Review dS Z. iguedem tefl wYcik’a red. d uàtfor.g,. C y of iedlou 1l)7td Wil ero’U&abig Is theIofdemut tIem of o* Ui *t. has .dth..d.uàdtheeeyequlnmeets. A Technkal SuppestUáth.on ,on lie st- the ‘A RemU ’.li m more dslullskofthubmlttaL. ‘ . Z 4! - .•.. NawYiik. l nlts—ç .-Jha’ - red r 1 . iliy.duta that show theCO ,em not violated in 1990m 190L 11 d . wars aillEbil by NewXmk8ate In ---with 3QA .de ew1ng EPA guldanna on _____ çellycontrolandars lnthe l i’A. Mreme che — 4on d1 IseeI System LA 1 Thestemes dma pressntedbu New Yesh I p ch A . 1 on isI.sism.. stt ’.” cdlbs , ndd evthe- 1it r-r’ t1 5 t .wputod. lb.. mum has ths ø -’.-yattoIon fi r stimimuontof 1k. 07 NAAQt 1.- ___ : — . - “u • — l bs— - Js*. 1Is1iat1OOIbItIL óu.li radesignatlon. the Swe uubmltted dale -I1O(a)( A wunher ofth. zeçthemonis from 1992 to AIRS.’the.. deli muju ‘ did flat ‘ “ 5 ifl mthik.i ,,si 1 4 , AIRS sod also show noah ual1ty -. ‘therefore. EPA balusies th th .p . violations. •. C L ail Aim_A 5QP ThotMeot’a ... M tothnee r.qufr.tnMaa that isem.. amended. w57F .R27936 and 2 3a... - • (June 23, 19923 , menyare düpli . Iv .of othequLre itbeAiiE’Ahas - 2A. New Yorks 197007 SIP analyzed the SIP and deimln.d tbm Ii 1985, EPA fully New .-- tv th the re f -. York’s 1979 07 SIP far ndsga *Iim imded C*IOfl 11O(s)L23. This County as meeting the requirements of analjsli Ii co&it 1 i In the T,rJi ’ilr.I... section 11O(s)(2) end PátDof the IOn Su tDq ’ ” sq.. .• : ‘ Ad. The SIP WU mpe 1dNd 2C.Pst U RequI emeute’ _“ mII Ion reductions from the SIP, ..:.g’ B seNmw York luienittad the—- measures, 1k. F.dim,i Mote hatT : reon 10 ? dag* ( o1 Pro and County prier to tea time any PeilD.- Imy uvvmenta at the downtownA .4L ’ v1 wents become spp1h 1iLi L&,’ - Syracuse het..pol, I itor toiilavambier 15. z992. these.. the si” 1 n”ent of the CO NAAQSt “ requirernonti are not due pirpcme of EPA s . d the O1- c t,— reaedgnatlon. EPA does eat s that the CX)SlPa ’ illi9i7 ct - StatsdNewkhusiaEPA-. requkamenti. TM 1990 Aaondiiaetato P the Ad modified section 1I0(m1(2) M .dwttion p1 101 8OW S un& Part U, revised p dIn at ” 55504.($ee 40 aa added now requb.un—’ i Jar SLIGáOJ This prt sm wIU. ply to,. cIa. ofn’-fl-’sotaram, ’-& , -, Onomli9s C intyiiuiw” ’y eq . EPA requires that state iøt.deslgita on to kIJim U t • - requesting rads4natlou havssSfl;jhi -, J’ - iiy Ma pram In. biehi% contains all mesunreelbatmura d è’ t -. pto$cts that ff.c* itwp. l tLimi under the 1990 Adb W4l apptóii lçui th. basis di( y • whirk the State .nbinftiid 1ti ‘ w1th SW provisions. Secllcra3.70 of t - red tlon matAu & Adti iUIrei to:devalap.’ - OnonJega Cointywas dauf fl,d anspaztailan/efr quality amfermIt modaruteCOnonatteI t us. ’ fth 4 Th- i ur’v winthsi. att_ design veins under 12.7 ndi. c:; .i 07 SIP requirenisats for èsi m l jii thenpi.ad a ED” --.. ‘(es. w . .Med fuels) uuweiue ev ilem..RA1ra* prom.Igstad laiL- . mr5mlttafon Nqvember 15 1 .199 a 1ri nIstIon .. Haw.ew,tIew. York submitted lie reuse DI.quIIII .1!YdTkbU . -.----- 1 U.d to dewl on November13, 1992. Thmufmu,ZIsw tAa utormity rreu dse ‘ vet wIth - York doe, not have toIoc1ud the.1990. -the anal dersl In the. Ad c .ulrol pruwa..a into Its 07 SIP Tar jede4.aIfr ve . New York Onondags County for the purposes of commits to submit, if .l..vemy , s o- redeslgsullon.’ New York requlid the.. appropriate SIP rø(skm .oowdiegto use of oxygenated fuels during the 07’ ,the schedule set forth In the fedmul season of 1002-3 pendIng EPA regulations. In .ddftkx.. the Syrearm oftheredaalg!I i mlionhequest .... Met opolitan 1 aeapwWionCeond1 • Forth. pw of red Ignidtnn , to . °(SMT( he. eseohud to follow EPA meet the m iwwsnt that the SIP conformity guldellose when EPA canteins .11 app1Icobkxequ1rement -releases them. The ? eqnvd sluo contains under the Act. EPA has revlmd examples wbui f IC has SIP and It nihhti .11 the inseam,. that °lmpleamitsd procedures to kiewe that wars &th. Ad prior to-the time.., projects underway. Indodleg th . 1992- New Tart . L IUd this r,dee%n.51 00 97 1 auport.Uon - request and ns.L ’- ..—”ce plan.’. - Pro n,oonform with the mIsting SIP. 21. SectIon itO Ruquiresim ‘- .3 I s liAr qi&I ,1i Th to Mthou seclltir 110 was amended PiJIOOoflI Wed SI fOI eOLIIe A euuum by the 1990 amendments to the Ad. the . Undëths tO?? Ad. EPA p iv d - SIP for OnnttdegeCouMy still eito the .the New York 073W 10 , (Mandega requlremsolsofemonded eaction. “County At that tint. and now, EPA Is satlsfledThattherulea 1ntheSIP ‘ Ait.ii *th _.. enforcoab1s.-Th fwv, the immIs oi .. redudfsos.thieved as a-result of ti • i; t.k i:mise -zulesmresnforcoabls.The SIP meii ____ • . were - ‘- V. Limit. “—:‘ ‘: 2—34 ------- 38110 Federal Register L Vol: 58, No.134./ Thursday. July 15, 1993 I Proposed t(ules den) Motor Vehici. Contrel Prcç.m LPMVQ ), Traffic flow im .w .r . .ient5 it the downtown SyTanas. hot-spot, end Air monitoring at the worst CX) hotipot. In lt redesignatlon request. New York shows that hi SIP measures were Implemented. The EPA-approved MO8ll .E4.1 model show. that the FMVO’ and traffic Improvements have d.aeased C D emissions In the downtown area by 57 percent from 1984 to 1991. The large decrease In emissions rkowsth st Lh.SIP is thersason that the CO SIP has caused att nment of the CO NAAQ& The FMV . in particular. continues top decreues In CX) ,. , k4ous u new, cleaner cars are bought to replace older cars. This. continuing pro sm acuounts for much of the emission reductions In recent years that eIi.nin .ted the violations In Onondaga County. In the redesignation request and the maintenance plan, NYSDEC and S!iffC commit to continue Implementing the SIP. New York has continued to monitor at the worst CO hct.spot. where the monitor recorded the vioLations used to designate Onandags County as inaftaininent under the Act and where now records the subsequent alnm”t of the CO standard.. Review of Mointenanc Plan Submittal In today’ s notice. EPA Is proposing approval of the State’s maintenance plan for Onondaga County because EPA finds that New York’s submittal meets the requirements of section lisA. If EPA determines after notice end comment that it should give final approval to th. maintenance plan, Onoadaga County will be able to be redesignated to attainment Undersection llSAofLhoAct,a maintenance plan must include an attainment emission inventory, , contingency measures and a demonstration of attA nffient for at least ten years after the area is redesignated. As for future years, section liSA of the Act requires the State to iubmit a revised maintenance SIP eight years after EPA takes final action redesipating the area to atfainni*nt If, as EPA anticipates, final action is taken in 1993, th. revised maintenance SIP will bedne In 2001 and itwili provide for m1nt” of the 0) air quality ui.i.ilitwd for sn dft ans1 ten years. Ini ntmy Pbw York ib Ithd comprehensive wins of CX ) emissions from point. area, stationary and mobile sources using 1991u the base year for calculations to demonstrate that the CX) standard will be maintained In Onondags County. Since air monitoring recorded attainment In 1991, 1991 is an acceptableyearfortheatt nment inventory. New York’s submittal contains summaries by source category (reproduced in Tabl• 1) and detailed inventory data (contained in the docket). TABLE 1—ONONDAGA COUNTY CO Es.esSIoNs (Tons per day) 1991 1991 2003 — Pc g’ St.tlonmy*is. Nnwc Mo. bU . OiwnsdMnhTMe Toist ....... .. 0 31 38 301 0 31 38 210 0 39 134 370 288 205 ( Some OO8STVns do not to is to kIdSpIIid.rI mue ngöJIng naid conversion.) ‘TPs 5 ca y orsy pose scuens list w t over 100 rns per year ot CO. Po it acirces list er less Sian 100 toes per year are udod hi Vie Stasonaly Asi* source cst y Stationary aid mobile source ‘ - Inventories were compiled following EPA guidance. Mobile source e’nI’slon estimates were prepared following the approach recommended by EPA. New York used the Highway Performance Monitor System to estimate vehicle miles traveled and used the MOBILE4 l emission model for CO emission estimates. 48. Demonstration of Continued Attainment - S? t (1C projected CX) emissions for Onondaga County, using New York’s att*ii m .ut year Inventory, through 2003. EPA anticipate, that this will be ten years from the date of the redellgnkHon to attainment, as required by the Act. Tab!. I shows that the CO mniaalons In Onondaga County will decrees. throughout the period. so the future emissions estimates do not the attaInment year inventory. This sbbws that the present situation of att ment of the CX) standard will be maintained. The decrease In emissions Is hum the FMV0 and traffic flow Improvements at the downtown Syracuse hot-spot. These are programs in the State’s 19790) SIP and no additional measures are needed to maintain atf lnment of the air quality standard. In addition. air modeling for the four CO hot-spots with the greatest potential for violating the CO standard show that concentrations will decrease throughout the period due to the SIP measures. This modeling conforms with EPA guidance and is located In the docket. 4C. Verification of Continued Attainment As required, the State will track continued attainment during the maintenance period. New York will continue to operate Its bot’spot monitor located In downtown Syracuse In accordance wIth 40 0 ’R part 58. U the monitor records a concentration above the CX) standard, New York will activate Its contingency measure. - In addition, New York State will also prepare a revised CD emission inventory every three years. During the revision of the emission Inventories, the State will reevaluate the growth factors and other assumptions that were used to develop the attainment and future year inventories. - -. 4D. Contingency Plan If. despite its best efforts to demonstrate continued compliance with the NAAQS. Onondaga County should exceed the NAAQS. New York has provided ways to detect and eHmiiiate air quality problems. New York Slat. - has committed to respond to an exceedance of the CD standard In Onondsga County by Implementing a - contingency measure, oxygenated fuels, that should eliminate future COal: quality problems. This commitment was Included lithe redasignatlon request that was presented for public comment by the Stat. during the comment period endIng December 31, 1992. The downtown. Syracuse monitor is the monitor that recorded violations during the 1980s. Two analyses of intersections In Onondaga County, one In the 1980. and a more recant analysis Included In the redeslgnatlon request. show that the monitor Is located at the worst hot-spot In Onondaga County. U this monitor attalni the CX) standard, it can reasonably be assumed that all of Onondaga County Is attaining the (Xl standard. If the downtown Syracuse monitor records an exceedance of the CX) air quality standard, Now York will implement its oxygenated fuels program In the Syracuse Metropolitan Statistical Area as soon as possible, but no Later than the beginning of the following CO season. To Implement this commitment. the State could use its proposed oxygenated fUels rule, scheduled for adoption this year If it contains a provision to Implement the program in the Syracuse Metropolitan Statistical Area If the State monitoring network records an exceedance of the CD standard In Onondega County. Or the State can adopt an emergency rule to ------- Fedarni tegI ar I Vul. 58. No.134 / Tht aday, July 15, 1993 1 Proposed Rules 36111 . linpiemelit the piogr n (as It did to lanuarY 19,1989(54 FR 2214—222* On Implemsflt oxygenated bela during the January 8,1989. the Office of igg2- U) mason) . Management and Hudget (0MB) waIved Table 2 SW revis Ions (54 FR 2222) from the requlamentaofem* 1 0 03of EPA Is soliciting public comments E,iV1 àr 12291 t of this notice and on issues relevant to t EPA . sub ilned EPA” proposed adlon. Comments ivill for a permanent waiver for Table 2 SIP be considered before I*1E1113 fiflal C 1O revisions from the requirements of Interested parties may participate In the 3 of E Jve Order 12291. federal rule making 111 sdwe by o has ngrasâ to confimie the submitting written comments to the “ u ” . ‘• - it person and address listed In the rules no EPA ’. request. AXRUUS rc”i ’ at the bsg e 1ng of ___ this notice. L1it (S LvI . - Proposed Action 40 QR * 52 In today’s notice EPA proposes to Alt p ’41 ’ noitroL Carbon .ppzom the Onondega County, manw1 1I11, nL . meMaI reLitluni, York U) m m 4 ntsm*nce plan bec” . it Reporting and tocordkeeplng meets the requirements of section 275A. iaqubomti. In addition, EPA Is pz ’p ’ .’ g LPFOed 40 aa t 81 of New York’s request to red. IgnmIm ___ Ononda&a County to ea ” ” of the Al, pollatlon trol, NatiOnal p lrs , CO standard. subject to final approval of Wild ’ ar 5 . the “ “t” c plan. EPA Is proposing A.iL.dt 42 U.S.C 74b1-7171q. approval because New York has Dste& Jan.2 1. 1593. demonstrated compliance with the ww 1 1. requirements of section 107(d)(3XE) for rede s i&natf on. U .d - i-en; $45 semi Nothing In this action should be _________ construed as permitting or allo vtng or — ‘ establishing a orecedsot for any future reciue stfori e,ls loniotnySWor radeslgnetfon. Eeth request for re,Wcn FEDERAL A11ONS to the SIP oriedeelguetlon shall be COMMISSION considered eaperetely In Light of specific techninsi, ecoonmic, and env1ru u . . .ssd.l factors and in relation to relevant • (MM Dodari Ne. 99-1 13,1-0379) statutory end regulatory requirements. _______ Under the Regulatory Flesibility Ad.. Radio Broadcasting Si. A u Star 5 U.s.c 600 et. erq., EPA must prepare Yafley, Idaho aregnletm ()mdbllity analysis ____ ____ AOBICV: F.deral Communications assessing die Impact of any proposed or Comm1 1oa . final nile en email entities. ________ 5 U.S.C 603 and 804. Allemstively, ACI1OIL PZIJVO 5Sd rule EPA may notify that the rule will not haves sipi ut Impact sranY This document requests _________ comments ens petition by Sun Valley sub i” 1 number of I t 1 Fine Arts Broadcasting requesting the Small entitles Include bisL allotment of ørarmel 298C to Sun small not-for-profit ontmpda, and. goverunhent entities with hu .4frem Valley. Idaho. as that community’s third local aural fl...,mel 298C can be over populations of is .. than 50.000 allotted to Sun Valley In compliance people. ________ _______ _____ Redesignatlon of an aresto _ n _ i _ with the Ceemk 1ou’s miii4m _____ ____ distance separation requirements undox . ln ” 107 XE) of tha’ without a e s2rLctIon. The Air Act does not impose any new ____ reaulrements on n satin coordinates far tl .mnne l 298C at Sun Re lesignatIon La an action Valley are North LatItude 43-41-48 and the staIns of. geogriphIaiil . West LongItude 114—21—00. does not lmp .1. , soy um Jatary DATES: Comments must be filed on or ______en . i . before August 30. 1993. and reply comments on or before September 14. __ _ 1993. numberd s , mII entities. AOORUS03: Federal Communications This action bee been ‘ 4—m !.d an a Commission. Washington. DC 20554. In Te l de2 4 bythe gL11mI add lt lontofillngcommentsw lthth. Administrator iindm , the procedures F , lntere’ted parties should serve the published In the !.deril Register on petltIoner or Its counsel or consultant, as follows.. John F. Garemgfta, Pepper & Cor ” 1 . 1778 IC Street, NW. nil Washington. DC 20006 AI1cniey petitioned. FOR URThEN MFO APorI AC1 Nancy 3. Walls, Mass Media Bureau, (202) 634—6530. SUP .Ben(TARY u ATI0w This isa synopol of the Commission’s Notice of Propueid P .il n.W , .g S AM Docket 74 , 93—183. adopted Jonir 18. 1993. 1 released July 1,1993. The full test of this Commission decision Is available (or Inspection and copying during normal business hour, In the F(E Reference C— (Room 239). 1919 M Street, NW.. Washington. DC The complete test of this decision may elan be purtheo d from the Commlssiona copy contractors, Intenialicuel Trensalptlmi Service. km.. (202)857— 3800, 1Q19 M Street. NW., room 246, or 2100 M Street. NW.. Suits 140, Washington. DC 20037. mvvi qf the Regulatory Flexzbillty Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rulemaking Is Issued until the matter Is no longer eub)sct to Commission consideration or court review, all ax port. tacts are prohibited In Commission ptoceeding . such one. which Invoke channel allot See 47 OR 1.1204 (b) (or r iIes governing permissible ax porte contacts. For Information regarding proper filing procedures for comments, see 47 OR 1.415 and 1.420. List dSubJsds In 42 01 Part 73 Radio broadcasting. Federal fl’------ .Judons Commkelon. & ‘ C. Eager. Chief. Allocations Bmnch, lWkycnd Rules Dinsian. Mom Media Vi..oe . IFR Dec. 93-16935 Filed 7-14-93:1.45 .ml utters case 1$4t-M DEPARTMENT OF TRANSPORTATiON Rsswth and Spadsi Program. Adm en 49CFR Part 171 (Docket HM-600 Notice NO. 13-171 RUt 2I37— 7 Hazardous Material. In tntrnstat• • Commerce; Correction AGENCY: Resesith end Special Procaine Administration (R ’A). Deperti Transportation (DOT). ACn Notice of proposed rule (NPRM3; eo..-,ction . 2—36 ------- p3 J OST 4 - UNITED STATES ENVIRONMENTAL PROTECTION AGENCY C ‘ _____ WASHINGTON. D.C. 20460 ‘ 4 PQ 0 tC I 1 OFFICE OF AIR AND RADIATION MEMORANDUM SUBJECT: State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) ational Ambient Air Quality Standards (N QS) on o a er November 15, 1992 FROM: Michael H. Shapiro Acting Assistant A inistra o for Air and Radiation (ANR—443) TO:. Director, Air, Pesticides and Toxics Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X I. Puriose The purpose of this memorandum is to address State requests to redesig te from nonattainment to attainment of the ozone and CO NAAQS Under section 107. Specifically at issue are requests submitted Oft or after November 15, 1992 where outstanding Clean Air Act (Act) requirements have not been met. This memo provides guidance on the statutorily-mandated control programs that must be in the EPA-approved SIP if EPA is to approve the redesignation request. The Act’s requirements for redesignation and a list of EPA’s redesignation policy and guidance are included in Attachments A and B. In the future, further guidance may be provided for redesignations submitted after November 15, 1993. 1X Recycled/Recyclable ------- 2 II. Policy Summary Section 107(d)(3)(E)(v) of the Act as amended (amended Act) provides that the State must have met all applicable requirements of section 110 and part D in order to be redesignated. Furthermore, section 107(d) (3) (E) (ii) provides that the State must have a fully—approved SIP for the area seeking redesignation. The EPA is interpreting these section 107 provisions to require satisfactory completion of the current Act planning requirements. Specifically, before EPA can act favorably upon any State redesignation request, the statutorily-mandated control programs of section 110 and part D (that were due prior to-the tine of the redesignation request) must have been adopted by the State and approved by EPA into the SIP. Thus, with respect to redesignation requests submitted on or after the Act’s deadline for submittal of the required programs, States must generally adopt and provide for implementation of their regulations for all of the programs that were due. States must submit these plans to EPA for incorporation into the SIP.’ This would include such requirements as emissions inventories and/or emission statements. Such requirements must be met in order for the area to have a fully—approved SIP that meets all requirements applicable to the area under section 110 and part D. The amended Act, however, also provides that upon redesignation, a State may move measures from the implemented SIP to the contingency plan portion of the SIP if the State demonstrates that such measures are not needed for maintaining the NAAQS. Many areas sought redesignation at or about the same time they were required to adopt and implement the requirements due on November 15, 1992. In many instances, the State will be able to immediately move these measures to the contingency plan without implementation. III. ExceDtions to Policy The EPA; decided to review the requirements to determine if something 1$ than full adoption of these regulations would be acceptablè wLder the Act for areas seeking redesignation. Exceptions o this policy on the States’ need to complete the full planning and adoption process for the November 15, 1992 mandated programs are very limited. The language in the Act allows a degree of flexibility in only four program areas. These are: (1) basic inspection and maintenance (I/M), (2) annual updates of vehicle miles traveled (VMT) forecasth and annual ‘Note that this represents a departure from earlier guidance for part D new source review (NSR) regulations. ------- 3 estimates of actual VMT for Co nonattairiment areas, (3) nitrogen oxides (NOx) reasonably available control technology (PACT), and (4) small business programs (SBP). These exceptions are only applicable in areas for which EPA approves a redesignation. The States should be aware that if EPA denies a redesignation request, rules submitted in accordance with this guidance may also be disapprovabl. Finally, because EPA anticipates issuing onboard regulations by January 1994, States seeking redesignation of areas classified as moderate may have some flexibility with respect to the Stage II requirement. Our guidance for State submittals covering these four programs is described in the following paragraphs. Basic I/K For areas where maintenance plans do not rely on implementation of a basic I/K program immediately following redesignation, the I/K component of the SIP should include: 1.- Legislative authority for basic I/K such that implementing regulatiQfls can be adopted without any further legislative action. 2. A provision in the SIP providing that basic I/M be placed in the contingency measures portion of the maintenance plan upon redesignation. 3. An enforceable schedule and commitment by the Governor or his designee for adoption and implementation of a basic I/K program upon a specified, appropriate triggering event.. Note that, for purposes of consideration of a redesignation request submitted after November 15, 1992, the commitment as described in the I/K regulation (see 57 FR 52950, November 5, 1992) is not sufficient to meet the Act’s requirement for a fully-approved SIP. In ad jtion, please note that, EPA’S final I/K regulations in 40 CFR t 51 require a fully-adopted I/K program by November * ‘1.993. At this time, our preliminary interpretative guidance oi b sic I/K jn this memo is not discussed in the I/K • regulations. Therefore, EPA is proceeding to establish this interpretation through regulatory action, thus enabling EPA to accept legislative authority and a commitment to adopt and implement basic I/K regulations for those areas being redesignated to attainment. ------- 4 VMT Forecasting The VMT forecasting SIP for CO should include: 1. Annual forecasts of VMT (i.e., average daily VMT for the peak 3-month CO seasons for 1993, 1994, and- 1995 in moderate areas above 12.7 ppm, and until 2000 in serious areas). 2. An enforceable commitment by the Governor or his designee to estimate actual annual VMT for each of these years (by September 30 of the following year) and to update the forecast of the VMT in the remaining years. 3. A request that the commitment be moved to the — cont .ngency plan portion of the SIP upcn redesignation, becoming a ccrtingency provision triggered by a specified trigge ing - event. 4. Adopted contingency measures to reduce CO emissions. The implementation of such measures is contingent upon either: (a) an annual estimate of actual VMT or updated forecast of VMT exceeding the previous forecast for that year, or (b) the area failing to attain by the CO attainment deadline. These contingency measures must meet the requirements of section 187(a) (3) as interpreted by the April 16, 1992, “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” including the requirement that no further action by the State is needed for them to take effect. NOx RACT Section 182(f) provides that States may request an exemption from the NOx RACT requirements. The NOx RACT requirements of section 182(f) do not apply if additional reductions of NOx would not contribute to attainment. 2 In an area that did not implement the section 182(f) NOx requirement but did meet the ozone standard, as demonstrated by adequate monitoring data consistent with EPA guidance, it is clear that the additional NOx reductions required b section 182(f) would not contribute to attainment, - although t might contribute to maintenance. Therefore, EPA believes thit if a State submits a redesignation request along with a sectIon 182(f) exemption request based on monitoring data demonstrating attainment of the ozone NAAQS, further documentation is not required. The State may follow one of two approaches in making such a submittal: 2 Note that the section 182(f) exemption for NOx RACT and NSR requirements described in this section is applicable only for States outside an ozone transport region, since only those States fall under the section 182(f) “contribute to attainment” provision. ------- 5 1. Submit a redesignation request along with a section 182(f) exemption request based solely Upon monitoring data showing that the area’s air quality is meeting the ozone NAAQS; submit a maintenance plan SIP revision, which includes a NOX RACT program as a contingency measure. In lieu of adopted NOx RACT rules, such a NOx RACT program may consist of an enforceable schedule and commitment by the Governor or his designee to adopt and implement the NOx RACT rules upon a specified, appropriate triggering event. 2. An exemption request based on both ambient monitoring and urban airshed modeling consistent with EPA guidance that shows additional NOx reductions would not contribute to attainment in the area. In this case, NOx RACT rules do.,not have to be included as a contingency measure of the maintenance plan. For several reasons, the Act can be interpreted as not requiring the section 507 SEP submittal in order for EPA to approve a redesignation request. The SBP submittal is required regardless of whether there are any designated nonattainment areas within the State. In addition, the SEP is not a control measure intended to contribute to the emission reductions achieved by an area; rather it is a service provided to help small businesses comply with requirements of the Act. For the above reasons, EPA is interpreting the SBP as not being an applicable requirement for any specific nonattairunent area that is seeking redesignation. However, EPA will continue to ensure that States make SEP submittals in a timely fashion. Staae II Vapor Recovery Stage II vapor recovery remains an applicable requirement for moderate ozone nonattainment areas until EPA promulgates onboard vapor recovery regulations. Section 202(a) (6) of the Act provides t t once anboard regulations are promulgated, the Stage II regulattons required under section 182 (b) (3) are no longer applicable ±br moderate ozone nonattainment areas. Therefore, final redesignation for a moderate nonattainment area that occurs after EPA’s onboard regulations are promulgated does not have to include a Stage II SIP control program. For redesignation requests that are submitted before EPA promulgates onboard rules and that do not include Stage II rules for moderate areas, Regional Offices may prepare rulemaking actions proposing to approve the redesignation, if appropriate, as long as final approval occurs after EPA promulgates onboard regulations. ------- 6 IV. Coordination of SIP Submittals and Redesianation Reczuests If the State elects to follow the approach above, the State should submit the SIP control program as described above along with the redesignation request and maintenance plan. The EPA will review the required SIP submittal(s) against EPA policy and guidance and in coordination “ith the redesignation request and maintenance plan. Approvabi.. - -y of the redesignation is directly related to the approvability the SIP submittals (i.e., EPA is precluded from approving a r t tsignation to attainment if the SIP is not approvable). As a general policy, a State may not relax the adopted and implemented SIP for an area upon the area’s redesignation to attainment. States should continue to implement existing control strategies in order to maintain the standard. However, section 175A recognizes that States may be able to move SIP measures to the contingency plan upon redesignation if the State can adequately demonstrate that such action will not interfere with maintenance of the standard. The type of demonstration necessary is dependent upon the pollutant for which the area has been redesignated to attainment. In order to make such a demonstration for an area redesignated to attainment for CO, EPA believes that the State could submit a revised control strategy demonstration showing that the measure is not necessary to maintain the standard. For ozone, the State would need to submit an attainment modeling demonstration consistent with EPA’S current “Guideline on Air Quality Models,” showing that the control measure is not needed to maintain the standard. The EPA intends to be very cautious in approving such revisions in cases where the control measures were implement d during the time the area attained the standard; the State’s demonstration should indicate an ample margin of safety with to maintenance of the standard. V. iclusion In summary, full adoption of all of the statutorily-required programs, as well as a schedule and an enforceable commitment for an implementation date, are necessary for redesignation to attainment from nonattainment for ozone or CO if the redesignation request is submitted after the statutory due date for the program. The fe exceptions to this requirement are basic If ? !, annual update; of VMT forecasts, and estimates of actual VMT, NOx RACT, and SBP. If you have any questions, please contact Sharon Reinders at (919) 541—5284, or Annie Nikbakht at (919) 541—5246. ------- 7 Attachments cc: Air Branch Chief, Regions I-X Kent Berry, AQMD Rob Brenner, OAR Mary Henigin, OAQPS Alan Eckert, OGC Robert Kellam, TSD - Rich Ossias, OGC John Seitz, OAQPS Paul Stolpinan, OAR Jan Tierney, 0CC Lydia Weginan, OAQPS Dick Wilson, OMS ------- Attachment A Criteria For Redesipnation Under Section 107(dl Section 107(d) (3) (E) of the Act states five criteria that must be met before the Administrator may redesignate an area to attainment. The criteria are: 1. The EPA has determined that the NAAQS have been attained. 2. The applicable implementation plan has been fully approved by EPA under section 110(k). 3. The EPA has determined that the improvement in air quality is due to permanent and enforceable reductions in emissions. 4. The State has met all applicable requirements for the area under section 110 and part D. 5. The EPA has fully approved a maintenance plan, including a contingency plan, for the area under section 175A. ------- Attachment B The EPA policies for implementing section 107 of the Act for redesignations are contained in the following memorandums. 1. “Procedures for Processing Requests to Redesignate Areas to Attainment,” John Calcagni, Director, Air Quality Management Division, September 4, 1992. 2. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” John Calcagni, Director, Air Quality Management Division, October 28, 1992. 3. “Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” G. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992. 4. “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” C. T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992. In the event that EPA does not approve the redesignation, the applicable I/N program requirements and guidance can be found in 57 FR 52950, November 5, 1992 and in 40 CFR part 51. The applicable VMT forecast guidance is described in the document entitled, “Section 187 VMT Forecasting and Tracking Guidance,” January 1992. ------- LJ/jU/ .b UO. J ) ,J1J. uO t jp g i4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards Research Triangle Park, North CarolIna 27711 c Cr £0 SEP g 3 MEMORANDUM SUBJECT: Reclassification of Areas to Nonattainment and 15 Percent Rate-of-Progress P1 FROM: ohn S. Seitz , Director .k z 7 ) J ’ ‘ Office of Air Quality P1 “ t ’ !an ar (MD-b) TO; Winston A. Smith, Director Air, Pesticides and Toxics Management Division, Region IV This is in response to your August 20, 1993 memorandum requesting guidance on the reclassification of areas to nonattainment and the’ 15 percent rate-of-progress Elans. Your specific questions are addressed as follows: 1. If an attainment area becomes a moderate nonattairunent area, what is the year of the baseline inventory? Will it be 1990 or some other year? If it is a year other than 1990, how will it be determined? Answer: Section 1 51(b) (1) of the Clean Air Act (Act) covers areas that were attainment after enactment and that are redesignated to nonattainment. These areas are subject to the requirements under section 110 upon classification, except that any absolute, fixed date applicable in connection with any such requirement is extended by operation of Jaw by a period equal to the length of tine between the date of the enactment of the Act and the date the area is classified. Therefore, the base—year inventory year would be the year in which the area was redesigna dto nonattainment. 2. ó i there any regulatory programs that if adopted for nonattainaeflt areas would be creditable toward the 15 percent requirement but if adopted prior to the nonattainment designation would not be creditable? Answer: A regulatory program adopted for a nonattairunent area that would be creditable toward the 15 percent requirement could be considered nencreditable for an area that was redesignated to nonattainment if the regulatory program was adopted and implemented prior to the base-year inventory year in the redesignated area. Thus, the base-year inventory must ------- iO/93 0808 9l9 541 MiMi) X l ? -‘ U ,i’.. dJUU4/0U5 2 reflect actual einiss ions including the effect of reductions occurring prior to that year. Only reductions that occur after the base year are creditable toward the 15 percent requirement (assuming that they meet the other creditability requirements of section 182(b)(l)(D)]. Also, if a regulatory program that met the creditability provisions was adopted and implemented prior to the base year but continued to result in emissions reductions after the base year, then those emissions reductions occurring after the base year would be creditable to the 15 percent requirement. 3 • If a State implements nonregulatory/voluntary programs and is lubsequently designated nonattainment for ozone, can the State use these programs to meet-the 15 percent requirement by passing legislation and submitting a Stats implementation plan (SIP) revision? Answer: The program would be creditable only if the reductions occur after th. base year. 4. Can a State pass legislation lowering the Reid vapor pressure (RVP) of gasoline below the 9 • 0 allowed in attainment areas for purposes of maintaining the standard? If ’ h.y can, what are the procedures that must be. followed? Answer: States are generally preempted under section 211(c) (4) (A) from establishing controls on the .RVP of gasoline for purposes of motor vehicle emissions control unless the State RVP control is identical to the Federal requirement.’ A State may, however, adopt and enforce a nonidentical RVP control if an applicable SIP so provides. The EPA may approve such a SIP provision only if the State RVP control is “necessary to achieve” the national ambient air quality standards (MAAQS) that the SIP implements. The EPA has previously approved several State RVP controls where the State was able to show that an RVP control more stringent than the Federal requirement was necessary to. achieve attainment for designated ozone nonattainment areas in that State Lsee. e.q., , EPA’s approval of a Maryland State RVP control published at 56 FR 23804 (May 24, 1991)]. That decision describes , criteria used by EPA in determining whether such a SIP revis1 i is necessary to achieve the NAAQS. 1 The Federal RVP standards were promulgated under both section 211(c) and 211(h) of the Act. States are generally preempted under section 211(c) (4) (A) from establishing State fuel standards that are net identical to those established under section 211(c). California is not subject to this preemption pursuant to section 211(c) (4) (8). ------- J / UF .J UG.U UO 4 •a ga.u i r juu ,uu 3 For an area that is currently designated attainment, a State would generally have to demonstrate that the RVP measure is needed in the attainment area in order to achieve the standard In another area that is not in attainment. The EPA approved a SIP revision for statewide RVP controls in the State of New York based on such a showing. However, it is questionable whether EPA would have authority to approve a State RVP control adopted solely to maintain compliance with the NMQS in attainment areas. If a State would like to pursue this latter issue, then we would work with the Office of General Counsel to determine under what- conditions EPA could approve such a SIP submittal. The process for obtaining a waiver of Federal preemption for State RVP controls involves submission by the State of a SIP revision in section 110 of the Act. The PederaiRegister notice referred to above provides detailed information on the criteria used by EPA in acting on such a SIP revision. If you have any further questions or concerns, please give me a call. cc: Air Division Director, Regions I, II, III,.V—X Kent Berry Gary Dolce Tom Helms Howard Hoffman Phil Lorang Kimbr Scavo Laurel Schultz John Silvasi Dick Wilson ------- :. MEMORANDUM UNIHD.SIAIES NVIRONMEN1AL Pf 4 0 1 1.LIIuN /UII t J • Office of Au Ouality Plann.i q .nu I SI.ulk ..i Rt b4 .Il r.h I ii.uiiqIs P 1 k. Noi iii (.ii IIIi ‘.1 1 /1; NOV3(J 1993 SUBJECT: FROM: TO: D. Kent Berry, Acting Director Air Quality Management Division Use of Actual Emissions in Maintenance Demonstrations for Ozone and Carbon Monoxide (CO) Nonattainmen Areas (MD-I) Director, Air, Pesticides and Toxics Management Division, Regions I and IV - Director, Air and. Waste Management Division, Region II Director, Air,, Radiatiofl and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI - Director, Air and Toxics. Division, Regions VII, -VIII, IX, and X This memorandum provides guidance on the use of actual - emissions in maintenance demonstrations for ozone and CO nonattainment areas seeking redesignation to attainment. This guidance supersedes previous Environmental Protection Agency (EPA) guidance set forth in the September 4, 1992 memorandum from John Calcagni to Air Division Directors, “Procedures for Processing Requests to Redesignate Areas to Attainment” (redesignation policy), which required emission projections for these areas to be based on allowable emissions. The EPA has previously issued guidance on the use of actual emissions in protecting emissions to meet the requirements for the 15 percent z e!.of-progress plans for ozone nonattainment areas. 1 For co tsncy, this memorandum extends the policy of using actual ea1 jens to maintenance projections for ozone and CO areas, as veil. This guidance is not intended to apply to emission .projections in control programs for the other criteria pollutants (see discussion under “Other Pollutants”). ‘See Guidance for Growth Factors. Prolections. and Control rate ies for the 15 Percent Rate—of Proaress Plans (EPA—452/R—. —002, March 1993). 7—14 ------- 2 Ozone and CO Policy Actual emissions from a source are the emissions based on the source’s actual operating hours, production rates, and control equipment for the processes carried out at the source. Actual emissions take into consideration normal operating conditions as well as instances when deviations, occur. For Ozone and CO areas, the term allowable emissions refers to emissions estimates based on enforceable emission rates and actual production rates and hours. Consistent with the earlier rate—of-progress plan gui&nce, ozone and CO maintenance projections may be based on actual emissions for sources or source categories that are currq y subject to a regulation and that the State does not anticTpate subjecting to additional regulation. Similarly, the maintenanèe projections may be based on actual emissions for sources or source categories that are currently unregulated and are not expected to be subject to future regulation. (The State still. has the option of using allowable emissions for these two cases.) However, for sources that are expected to be subject to additional regulation, the projections. must be based on the new allowable emissions limits because the new actual emissions are not yet known. Upon approval of a redesignation request and associated maintenance plan by EPA, all future imissions calculations or projections to implement other air quality requirements for an area must be consistent with the maintenance demonstration (unless a more stringent requirement applies). For example, if - projected emissions from a source used in the maintenance demonstration are based on actual emissions, that source must use actual emissions in determining the credit avai. able for emissions trading, innovative strategies, economic incentive -plans, and emissions budgets. Other Pollutants Under the redesignation policy, emissions projections for particulata matter (PM-b), sulfur dioxide (S02), nitrogen dioxide, .s . ead (Pb) nonattainment areas are still required to follow c flhiit EPA modeling guidance •2 The modeling guidance requires th t maximum allowable emission limits for major point sources be used in demonstrating maintenance of short-term. 2 Tb.e EPA-approved modeling guidance may. be found in the following documents: UGuideline on Air Quality Models (Revised)’ (EPA—45012-78—027R, July 1987) nd “PM—b SIP Development Guideline” (EPA—450/2—86—OO1, June 1987). ------- 3 jards. 3 It is necessary to continue the u ‘ ,able emissions when projecting emissions :tainment areas because, in some cases lar ‘- ‘rt 5 øur es 0 peratin at full capacity could by themselves excee e of the applicable national ambient 3i star 1a d In contrast, large point sources are to be dominant emission sources in inventories for ozi 3 onattai1 m 1t areas, and it is unlikely that the mu1titU Of smaller sources would be operating at maximum cap3 tY ultaneously. S For further information regarding the use C actual azid allowable emissions for maintenance demonstrati° for o:one and Co areas, please contact Carla Oldham at (919) j..3347. For jnformation Ofl projecting emissions for S02, Pt 1’ ’ and Pb nonat ainment areas, please contact Robin Dunking at 9l9) 541- 5335. cc: Air Branch chief, Regions I-X John Cabaniss, OMS Mary Menigin, OAQPS Bob Kellam, TSD Rich Ossias, OGC John 1 asnic, SSCD John Seitz, OAQPS Ann Goode, OAR Lydia Wegman, OAQPS 3 flaxiraua allowable emissions are calculated usj Zorceable (i.e. allowable) emission rate multiplied by the Zimum operating capacity of that source at contiflU0’ operat1°’ tUnlesm there are federally—enforceable limits 0 1% the hourS of itjon). ------- Eederal Register / VoL 59. No. 182 / Wednesday. September21 , igg / Rules and Regu1ations g jg5 provisions to implement an NSR not iemove existing requirements nor source categories which may not be program in accordance with the Clean does if impose any new Federal exempted and because the State has not Air Act reqwrements. Furthermore. requirements, adopted the new pennitUng Ohio’s existing regulations exempt two This action has been dqsified’as a requirements of the Clean Air Act types of sources which may not be Table 2 action by the Regional Amendments of 1990 in a clear or exempted under the Act and applicable Administrator under the procedures enforceable m nmer . USEPA regulations. For these reasons, published in the Federal Register on . * a USEPA takes fluial action to disapprove january 19, 1989 (54 FR 2214—2225). as IFR Doe. 94—23349 Filed 9-20-94 8:45 amj Ohio’s submittal for failure to satisfy revised by an October 4. 1993 -- part D requirements. memorandum from Michael a Shapiro, _____________________ Under section 179(a)(2), one of the Acting Assistant Administrator for Air - sanctions set forth Lfl sectiOn 179(b) and Radiation. The O has exempted 40 CFR Parts 52 and 81 hail apply unless the deficiency has this regulatory action. from Executive. ieen corrected within 18 months of the Qrder 12866 review. - - (0H0644239A, OHOI.2.4230A, 0H32. .2- ,ffectlve date of this disapproval. Under section 307(b)(1) of the clean 6231 A; FRL-6073-63 - xteusive discussion of USEPA’S Air Act, petitions for judicial review of , • .i. . ... k 1’ - uga no - auctions p . ures. given .e • __ action must uu .w iu we uflitcu- Im tatlon Plans and 0 ugust . . StatesCourto ppeals or e of Areas forAlrQualfty Planning FR 39832. Pw tiant to 40 CFR 52.31. appthpriate circuit by November 21. - Pu ohio inless a revised plan has been i o. Filing a petition for - ubmltted and proposed for approval in reconsideration by the M!nin ctxator of AGENCY: United States Environmental he meantime, a requirement for two- this final rule does not affect the finality Protection Agency 6EPA). or-one offsets shall apply to any of this rule for the purposes of judicial ACTiON: Final rule. - . - ierints Issued after (insert date 18 review nor does It extend the time - nonths after O days from date of within which a petition for judicial . SUMMARY US 6.JR approving a roblimlionj for major nOw sources and view may be filed, and shail redesignatlon request and maintenance nodIRratlops In nônattainment areas. postponed10 effectiveness of such iule’ plan for Preble. Columbiana, and. llghway fnndlng nr5lons shall apply or action. This action may notbe” “ Jefferson Counties. Ohio as a revision to Insert date 24 months after 30 days. p Hngs to. Ohio ’s State Iznplementi t4nn Plan (SIP) iom date otpubllcatlonj. 8 51fl enforce its reoulremnntg. (See gectjon” .for m,a . •, .. - rethôdjl nbeabeensubinlttedand 307(b)(2).) “ ‘ i - -“ .- Therevislon isbasedonaroquest. imoosad fur apprâval Inthemeanlime, - . - • -j . -. : -c i , ‘ frn the State o OhIo t za d ata ’1 - , ‘t thIhk1n tMs action should be .. stj&SubJecfs lfl 4Q ulb1 these arOas. and approve their óns&iiód.a&permlttfng allowing a’,. - Eovfr . . 5jflf Iw 5 p 5fl 5 , afl4 fl any fub - .pollutlon a bd mdn thIde:u1 suppgrtth Iafa tb e Si .áibmift c1 que xey1 pnteny SW U PA . ‘ Hyd o ’b 1Ok ’v bI ’i& 5e.h ‘ Under tn ’A1fAi nitfoiis , thSU IM&Oach f6rzevldon. - ’ re tión. Nltr6g à ’ssdd ‘canbè’chuiód If fflclent dala axb frth ht0f ; Per cu matter, Roper igan&’ -M - availabl tqwarrant suhchengs. . Y ° ’ __op em t ’Sulfu 4. 116 USEPfrmuIts 1*k effeilvedate,i. rreparea regulatory. fleidbllity analysis —a - deI1’- tim h.ns ’i %Lhs , .. ,hflJ I aseealnjthalmpacbof any proposed oi . cl tei, p j2;. 1. 49 of the Code’ : gofl bn*afl elitIties. (5 U.S.C 6 of Federil R gulatIonsii meuded as .“ &604 Aiteruadvel USEPA may r ADORESSES comments dgnf ’nt Ithn OD sub antW •“ . ‘ - PARI 5w-APPROVAL AND.. , . ,: WlIIbna L. MacDowell, iumberof.inñntides. Sm*)1 entitles PROMULGATIONOF ‘,. ‘ - ‘ ‘ - 1- RegulatiönD veI6pmt,Se t ioizAfr ) uclude satail businesses small not-fer . dPLBW1TATION PLANS , . ,, Enforcement Branch (AE-17J), United’ fit” and t ‘‘ ‘• ‘- ‘ - • -. • - . -. — States Environmental Protection. __=: :;; E c State .. • A I T 4 7 9 1 ,7i( CopIed of the requested redes1gnatibb . “ “ umier ai iffi 4fléod “ vf D of ‘ ‘ ‘.. . - -- . ‘ - . - - .-.. -- - mainteñanceplan, and other matenalr t Clean Air A i t aI auy Subpart - reI*tm to this iul w ,* W, g I existing ntss pl1cableto 2. Secti 52i8791s amended ‘ --: for public Inspection during naltilitles. Any pm Wthg Federal Ing paragraph (a) to- ead as. follo vm thofollowj requirements r n tn In place after this . . - - ‘. • • - . - -- - - disapprovaL’ Federal disapproval of the. g52.1879 $.vIew of flaw scarce. and’ - United States Envlronmen - State submittal does not affect its State.’ mo icatloes . — , . ‘ ‘;:..‘.‘ . “- • Protection Agency. Region 5 Air and ‘. enforceability. Moreover, USEPA’s (a) The requiremetits of sections 172 Radiation DIvision, 77 WestJecksem disapproàl of the submittal does not 173.182. and 189 for permitting ol-: - Boulevard (AE-17J) ChIcago, ’flhInoi% impose any new Federal requirements. major new sources and major . ., ‘ -. ,. 60604; and Air Docket 6102. United Theiefor , USEPA certifies that this -. modifications In nonaltAinment roes-,: States Environmental Prt w4 il , 3 Z ’ disapproval action would not have a ’: ’ for ozone. particulate ? m *tOI . sU1fUL Agency, 401 M’Street, SW. W14nu significant impact’ on a ubstantiil ‘: dioxfde, and carbbii ionoxldeare not - DC 20480. (It is recommended’that you number of small entities because it does met, because Ohio’s regulations exempt telephéne William Jones at (312) 886- - ------- 48396 Federal Register I Vol. 59, NO. 182 ! Wednesday, September 21, 1994 F Rules and Regulationi Y Non Iwo— ig9 _ o6___ -ü 4 .027 .•a34 ..‘ ...- TA8LE Z—NO ‘PoW -. - Ya 2 .- 6058. before visiting the Region S reviewed in a proposed nulPmAking consistent with those established in the Office.) published on December 20, 1993, (see Federal rule by November25 and 30. 58 FR 66334) in which USEPA proposed 1994. respectively. Because the deadline william J s, R uiation Devekixeent to pp the requests due to a Jack for such submittals has not yet come section, &ai1 ± ( . of maintenance and contingency plans due, it is not an applicable requirement. 17J), U.S. Environmental Protection and enforceability deficiencies in their under section 107(d)(3)(E) (v), for Agency. Region 5. Chicago. Illincns Volatile Organic Compound (VOC) approval of this zedesignation request. 60604. (312) 886-6058. Reasonably Available Control - Techn 1 1 AtI1 s A. Preble County SUPPLEMENTARY INFORMATiON: Under oogy . Section 107(d) of the pro-amended the State has submitted The maintenance plan provided for Clean Air Act (CAA), the United States additional information to address the this county consists of an rnissions and Environmental Protection Agency bass of the proposed disapprov4 The air quality summary; a mobile, azea, and (USEPA) promulgated the ozone re zew of the previous submittal and the point source emissions inventory; and attainment status for each area of every basic re4esi nanon requirements are not Permits-to- nstall for all subject sources State. For Ohio Preble Columbiana. summarized in this notice, but the in Preble County -. - - and Jefferson Counties were designated IS to thS December 20 The a .I ons summary for volatile as nonattainment areas for osone. 5 43 1993,iiot above fore - OlgInIC comPou nds (VOCal and oxides FR 8962 (March 3, 1978). and 43 FR summary 01 lUrl .flOfltS 5RU the . of nitrogen (NOxJ are provided below• 45993 (October 5, 1978). On November P ° °’ £115 Apiu 14.1994. - ,nna .1. i-i A A . . - and August 10. 1994, submittals TABLE I —VOC ELess oNs IN T’ 1.1, £ J . we . .ean £111 . - Amendments 1990 were enacted. Y Pub. L. No.1 49,104 Stat. 2399. ___ codified at 4- ...C 7401—7671q. . S1ii n 176(c) of the Act ‘ u1res Pursuant to .tcn 107(dXl)(C) of the to revise their alPs totablish CAA, Preble, jefferson, and Colna Mit , n - aitenia and procedures to eneme that Counties retaled their d slgnatiwms of p g actions, b.e& they are taken, noimattainment for ozn1 a ztlon of conform to the air ausliw p)amiing ______ ____ ____ ____ ____ law. 5FR56694 6, pi i sSW.11m 1991). At the same time Preble, and ., . r—ñmment to determine 6wmi’v - Jefferk& Cdunties __ 1 fied a ‘ ia s . - C transitional arees and Cohiu1 Ianui. ... and p pjectn deelaned :.- _____-. ____ ____ ____ Con w! Aed as an lncoznpIete €ià titI __ dataarea. - - . - ‘- -. -, us. -the -RedemI nsjtAct . .. 1ieOhfo Envifoumental Protectia as” AguiC 1O estedthatPzebls , .t a r eraI , ,‘ 199Q Z ..U0 I 410 fi0J1 Conmty zed cIg t*t d to at?ai1mdM t In, :- o .co &1e-kae6 Ma12 a latter dated May 23.1988; and that’ - .. . . rovidm t the co 1WrevIsIo s - 2006 Q 0 ic& .. 2.8i E1O J eff and Colu iMai Counties - .: to be i ’1’ .i 4n. d. State . be - ’- k ___ T n jxe defed4, 1988 O D 5120 the Lie t6 de e ie 199 e Sth!etEnviWn ante1° Ii EPA ( a.’ L _t ___ ____ f the ons1 M ‘e air dber diS e 1 j .wvwtb N I initted oneyear ii ten ( io) yeeILThew ( (683 34bII comm t p inulgattos Of tb nalUSEPA 4 - - ‘ ‘. perfod was from P em bê20 1993 —‘i co kimftyregu1etton& Wheil that date ____ January 19. 1994. lx i Januery.1e ?peased withcut such lon t-. - _____ 1ettez be State of Ohio nt isated a 90-.€ USEPAS GenWelPresmbl. for tht- a la quality nienithaing - by day extension of the —.“en ’ period. ‘- -lmplementatlon of Thi. i - - .- ‘ the State shows that the ar Is fIn 1 On Februiiy 18,1994, the U ’4 -‘: - -‘ -- j . ‘ f ____An bIemsi Al extended the m m15.f pemiod until ‘would establish a em.ibmittaf late: See 57 Q hy endards (NAAC$) ____ April 19 .r 1994 (see 59P 8S).Th.€ PR 13498.13557 (April 16.1992). - Pralule County. which eis4aMd OEM submitted in L The USEPA t j9 flOila , .Ii1 1t prior toemctmenLOfth contingency plans - - - hit- transportation InT%ityzugulitlons Clean Alr Ad AmsaRtmk%& Of 2990 1 submittal dated April-____ - : :- -- November24, 1993(58 FR 62188] and - mz st esii ...teXiethig RACFñlerfor requested parallel 1 u-, lthe -. general conformity regulations on -- enforceebthty defidenides. Sed 7J R submittal. The results Of A’Rpubllc November 24. 1993(58 FR 63214). - 13562. Thó State submitted copies of ‘ hearing and resulting IevkL 51 to the Thes. couformmuity rIdes iSquli. that PermetMo4iutall feral) sublect iuw ’ maintmm and contingency plan w - States adopt both transportation and - -. in the County. These penmib lndfciti-4 submitted in a letter dated August 10. . : general conformity revisions In the SIP that flO 5u u In the County i 1994. Notwith ding them subunlttaIs - for areas none”ainment or - - - a cted bye Volatile Ou1c ’ no public comments spedflcaUy -subject to a maintenance plan ap Avvod Compound ( OC) Reasonably Available commenting an the proposed under section 175A of theAct. Pursuant Control Technology (RACIJ ruleibat nilemAlcing were ieceived during the - to section 51.396 of t± transpoitati on has an enfotceabilit r defideucy The - extended comment period. - . - - - . - conformity rule end section 51,851 of — one source that would have been .-‘ - — —- -- - -:. - the”—Ofamfmmity rule, the Stats of gfT j ( de easar ) was permanentl j - ‘ ‘ ! ‘ —. ; . - Ohio is required to subthft SIP revisions - shut down.This satisfies the -‘ “ The State’s May 23.1986. and July 14. - conlalning trazisportallon and general - requirement for correcting enforceability 1986, requests were previously conformity aiteria and procedures - deficiencies in the county. - PoI* I Area Mob se es ..- 45.52 4&12 •43•93 4i.13 ‘41.88 4? 64 -4.16 2.53 1.96 TONS !R.P t $ s uo acen oi ------- - Federal Registez:I;VaL 59; No. 182 ..LWêdnesday. Septeni iet Zf The maintenance plan.also includes a. - TABLE 4.—VOC EMISSIONS p 1 i ToNs contingency measure that the State will . PER SUMMER DAY - - use to ensure maintenanceof tha - ____ ____ ____ ____ ‘IAAQS for ozone.The -Statebas ‘•. committed to lower ReId - .Vapw Pressure _____ ___ ___ ___ ___ (RVP) gasoline as the c ” genCy measure. This would be-lmpJameniedln 1990 — 1.13 6.50 .8.51 1996 120 . 8.40 4.96 the case of a violation in the area. In 2005. 1.33 6.30 4.11 ___ order for the State to üselowerRVP 16.14 .12.53 11.74 gasoline, a finding of ndeasslty muat • .. - first be made by USEP under Section ç. .JA81 -E 5 . 44 Ox EP SSiCNS IN TONS 211(cX4)(C). of necessity su DAY is not provided. Ohio EPA has; - committed to chaos tn.alternatio U —.’ • Yew unspecified emisslofl control meesut - : - . ____ ____ ___ deemed appropriate bs id upon - tho consideration of coet.effectivAnese VOC g99 j .. reduction potentlil, eco ándcind 2005... . ____ ____ ____ social considerations, orbthà fattors that the State Judges toboappropriate. . The total emissions are rejected t This dedsiori would be mideund .‘ d thaso in the county aJ,a 8 a reeul ,- Linpiemented withIn 12 months from.. the county Is expected tomnlnbiln.the the official notification b J A that ozone air quality standard. .me m bfle. a waiver would not be az ted. bRA: so i NOx and VOC enthsiâna ..T. also provided the ftJlow pg sCliOdUIö for o$ct1ons fo he year 2005 wIflbe the. Imptanwtnffng theI* woVRVP meamiài udget for traneportatlon conforinit) . IMPLB 1NGLÔ E* p thrams Isitill phffRII IThIIfl ! of the - • . . ..*g. ,.. F - : plan aIãincIudee. r • fingencyme ethattheS st w1U:; : 1 •• ; 4 o ti from b19 £-; 3 nwwEi bum tIlt/ 4 mouthS b.tm bIQ . • TABII EMissioNs iN ToNs PER SUMMER DAY :• . Pau* mutes Area sauces ,b e scuices j . iggq 1996. _ 2005 ....... 0.06 0.06 0.01 4.60 . 4.80 4.90 7.00 - 6.05 . 5.05 1166 10.89 .. 10. Thetotal emi on are projectecttà decrease In the county and, as a result. thIcounty.is expected to maintain the o ne air, quality standard. The mobile SQU CeNO and..VQC ni ons •. — r- proJecticnsIor the yeax2005 will be the budgetfor trinsportatlon tonformityi . - The ini,* ,usiki ,r planalso Includes ar amtlngancy’nieaswe that the Statewill. -nest nsema ln’e”env, of the- NAQ fee nzaii. , -This Is the same plan thavls oittH nd.*h foi - Preble County. -1 bis county Is *lIIIilAP tQ Jefferson In that it was not Included nthb post 1987 USEPASU calLl tera tó’OEPA, and - i ri clladaibavIng RACT ;... . . - e sndss es Columblana County was noUnMolatlon of the NAAQS. Thai rAh(a oInty1s not-subject toe’ t iOoon RACI t ’e . ‘• E-; appli neRsm plan app çabi desal -a1r pollutantixmtnl regu atiOns-( v)-TheAdmlnhstrator s fully appzovfng maintenance plans fee- ih. counties as meeting the -. - reaüliemenb.of sethen l iSA; and (v) - r’ ithisacdc - roudie;tho without llbe óms : 21. 1996.- ’” - ‘21,1994,thent USA’ vIfl ibflsh a document that -- withdraws the action, a iid will addzeis the tombiiit31nth finalTuleanthe xOq’iested iiiia . i4 *tjon and SIP - i v1if hIth has been prãposed foi . .ap rbvalIn thi-proposid feasecthi& of this Federal Register. The comment Yea Poll mutes Poll ee ...378 376 340 Area mutes Area mutes - 2. 2.7 -2.6 1.89 1.98 2.25 10.40 -10.60 10.80 M e sauce. MX m J - - -4.1 a4 __ &i m ty ct it 0 ithin Of 0 crkiu . th. NAAQS.-Thus Jeff on Co mtyIt __ __ - _____ O OW ON0 ..OUJp Y : -- -. • ianceplauprovIi *. patedofaujmJu Ion-. - ____ mithilfi , area, and Pdt : - -.- is inventories. - __________ :- ‘ The Mv ons summaries fo 901ali1e. - . - •, • ,compounds (VOCs and o,ddes kj Couo - -.0ffltrO9efl(NOx)areProv lded — . •• - i .• • . - : . - .. — -• 7benisIn’ ’ut nre pIa my fCI r--TA8CE 6.—VOC- EMissioNs INTO this unty g,nslats .of emlsslo s, and . - PER SuMMER DAY - -• airquality ñisrjes d - - and pointsourte m ’ thdeC -: .Tha infon swkjE fni. n1sti1i - ___ ___ ___ ___ organic compounds ( iO( iEiiidbxides lggo . ... of nitzcgei (NOx) are provided be1ow --- 1996.. 2006_ jet ” 19 .37 18.70 Poll sues Pa muom Mole muom I Tcta TetaW — - 4•. 385.4 2J 348.0 11.66 6.79 5 .65 .. . — — q.—— - —.-: -: ______ — &...i.L..1 __ _. ! -i i (fl Q 0 6 * .’ lnd Nol,ember8 1989), and Was naves — ‘ C1tiL89 havthg RAC1 defldancjee, a - ant iid ------- 48398 Federal Register I Vol, 59, No. 182 I Wednesday. September 21,1994! Rules and Regulationi - period will not be extended or entities with jurisdiction over List of Subjects reooened. populations of less then 50,000. , .t. P1othinginthisactions liauldbe SlPappovalsunderSection lloand 4 rurQ1t52 construed as permitting or allowingor I. pail D of AA do not Envonmental Prot on. Air establiching a precedent for anY future create any new requirements. but pollution control, Intergovernmental request for revision to any SIP. Each simply approve requirements that relations, Ozone. request for revision to the SIP shall be te is already Imposing. Therefore, to cni pti t 81 considered separately in light of specific bec the feder J SIY.approval dop technical, economic, and environmental not impose any new requirements, I Air pouution contro factors and in relation to relevant it d not have a significant Dsteé Septe.bai 5,1994. statuory and regulatory requements. impact on any small entities affected. Valdas V. A * fr This action has been clammed as a , I . ,. LI L S • . L • £vAOreoVor, ue . . nauii Os ft javie wz j uOfl uy we el u Federal-State relationshin under the Administrator under the pedures CM., tin of a Chapter 1, title 40 of the Code of published In the Federal Register on - • F ’ ___ Federal Regulations is amended as federal Inquiry Into the economic memorandum from Michael IL Shapiro, j of i1 The CAA PART 5 EIJDEDJ. A A A TTUflI boT? concerning Sn’s on such grounds. - 1. The au’ ty citation for, part 52 I. 1. UnIon Electric Co. v. USEPA. 427 U.S. continues d as follows uuClni wu genera. UIIL uCSO , . , ,. tables. On January 6, 19 .e Office of 256-66 1976,i 42 - - - A% b.rU SC 740t- 2°(3)SIP revisions eestgnadon of anarea toattaimnent Subpart Kk—tAme q 54 FR 222) fromlhe requirements of under Section 107(dX3XEJ ° AA 2. Section 52. 885 Is ama. ii by - iectlon 3of Executive Order 12291 ie does not Impose any new requii mints anew paragraph (ali5) to read as ip odo tw(2)yeats.US ’Ahes -’. enema Isan ,. . nibmitted mm ,..i rermanaiui ... action that affects the statui of. ‘• ‘ .. -; -. •‘ silver for Ta ie two (2) and Tablethzee geographical area ad does not Impose: •ftIIJS Cop . mJ Ø, .in 3 ) g tO any ulatczyrequlrementsaru.ouroes ...- : • onlinue the tern waiver until The Adminisnitor cRitI& 5 that the (a) ‘ “- -• ‘- - nich time asit ru 2 USEPA’s ... • pp tinl of the mde4natiaui re 9 Uest - 5) The for iquest. Thfhie eot ues in will not affect a substantW number of - Preble, Cálumblana, and Jaff’.’ .on - snderExecia’4ve ,( der 12866 whfçI . “ ‘ - - ; Counties. iupereededbecudve Ordm 12291 on Under .et Io’i 3ô7(bXi) of the, sarr • • .. .., • - ‘ - epterabà 30 1993 0MB has eximpted Afr A petftioiis for judf’ aI review of : - ..v1 $44 bIs.roguIstã acticn from E O: 12866 thfs ” ’ must beflled th the Uthted ‘- PARt 81—DESIGNATION OF AREAS FOR AIR QUAIJVY PURPOSES—OHIO -UadaThi Re ulatoiy P llt A t. 1 appropr1at dkOuItbj Nó embér21, • seq.. U A rnu 1994. Filing a - menaregulaflaidb1lityaualys(s rec IeratIonbytheAdm1 1i erot;. C i, 0 - , SIO iI IaIdnngthd ImOy 1oic ft ]j j IIy4ZIISC 7401-7 nof eon iaall àtiti6s. (5 U.SC- 603 of .Jjf in § ai tihe md 604.) Alternat lvsly , -USEPA may te .oaybe ftle&and shall note. . ‘+d L . revislig the entries foi ëitIfyth Xthi rule wlWno have a --i, of Kh ruIr Col’ ,Pieble, end Jefferson — ‘ dgntffrcTlt Impact cáa substantial mio t.mayiot bL ’4 l$ - to read erfoilowm iumberofcin a l lenddes .Sinal )ent ldes • th.l dIa lmth c eedthpto ’ .L • •. - . . .. -- - :.-,•.. . : idudaUbnesses,srnallnot-iop en itereqil eats(Seesecticn •81.33. C lii ..: - . profitentezprIsesandgavernment 2A 307(b)(2).) - : r * * *.* , - • - • - • — - . - ‘ ‘‘i- . - OHIo OzoNE — — - 4 ‘ ‘“ .. ‘ m 4 - Type -, Dotel — ‘- - - • -—.- • —. , • J .$._—_ •> ‘ .V’i Y .‘ ‘f r , ’. - ,. cj.,- ,- -. • - — - • . - •—. S ‘ • 1 - Cc sit aiia Comfl Ares C4*Jltluls Couly - Ootuber 21 1994, . Mal .. i* . , — f ( • - - ., -.- i. , - - •‘i ---; - . — . - - - — •.- . - - • ..._.: • •. S — . . - £ . - . - . , ., - • -— .•• • - - Is’Couudy kea PiebIe Coility ‘ -O ot 21 i99t ’ Z Mh6., rt.’ Stem eiwiIe ken Jellersoe Coma*y bctcbe, 21,1994. . AtTa i’ . - -— -- .••.•• - •—I — - ———-——— .- S. - - •, • S • - •— • ‘5 S - “— -. — ‘ - - ‘Ns Ie b Nowen er 15, 99 w es oUierMse noted - ‘ . •3• 5 • •• • - • * ‘S•— — ‘a .. .- •*••• S. •-. ,• -— - - • ‘ :. - IFR Do 94-2329OFUed 9 -29-94; &4S emi. - coos o* - - - -- - ------- 4. 4...fl. MORANDUM UNIT eD STAftS ENVIRONMENIAL Pf ()It. .IR)N A I N( \ Oflice ot ai Quality Plai nii q .i’’ I Siu.i .,. d. h(*.4 .I( cI I ri;iiiqIt Paik. No ( .ii NOV3 01993 SUBJECT: FROM: TO: Use of Actual Emissions in Maintenance Demonstrations for Ozone and Carbon Monoxide (CO) Nonattainmen Areas D. Kent Berry, Acting Director Air Quality Management Division (MD—iS) Director, Air, Pesticides and Toxics Management Division, Regions I and IV - Director, Air and. Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III - Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics. Division, Regions VII, VIII, IX, and X This memorandum provides guidance on the use of actual - emissions in maintenance demonstrations for ozone and CO nonattainment areas seeking redesignation to attainment. This guidance supersedes previous Environmental Protection Agency (EPA) guidance set forth in the September 4, 1992 memorandum from John Calcagni to Air Division Directors, “Procedures for Processing Requests to Redesignate Areas to Attainment” (redesignation policy), which required emission projections f or these areas to be based on allowable emissions. The EPA has previously issued guidance on the use of actual emissions in projecting emissions to meet the requirements for the 15 percent rate—of—progress plans for ozone nonattainment areas.’ For consistency, this memorandum extends the policy of using actual emissions to maintenance projections for ozone and CO areas, as veil. This guidance is not intended to apply to emission projections in control programs for the other criteria pollutants (see discussion under “Other Pollutants”). ‘See Guidance for Growth . Proiect . and Control ateqies for the 15 Percent Rate—of Progress Plans (EPA—452/R- -002, March 1993). 7—14 ------- 2 Ozone and CO Policy Actual emissions from a source are the emissions based on the source’s actual operating hours, production rates, and control equipment for the processes carried out at the source. Actual emissiOnS take into consideration normai operating conditions as well as instances when deviations, occur. For Ozone and CO areas, the term allowable emissions refers to emissions estimates based on enforceable emission rates and actual production rates and hours. Cons istent with the earlier rate-of-progress plan gui ance, ozone and CO maintenance projections may be based on actual emissions for sources or source categories that are currently subject to a regulation and that the State does not anticipate subjecting to additional regulation. Similarly, the maintenance projections may be based on actual emissions for sources or source categories that are currently unregulated and are not expected to be subject to future regulation. (The State still has the option of using allowable emissions for these two cases.) However, for sources that are expected to be subject to additional regulation, the projections. must be based on the new allowable emissions limits because the new actual emissions are not yet known. Upon approval of a’ redesignation request and associated maintenance plan by EPA, all future Ainissions calculations or projections to implement other air quality requirements for an area must be consistent with the maintenance demonstration (unless a more stringent requirement applies). For example, if - projected emissions from a source used in the maintenance demonstration are based on actual emissions, that source must use actual emissions in determining the credit available f or emissions trading, innovative strategies, economic incentive - plans, and emissions budgets. Other Pollutants Under the redesignation policy, emissions projections for particulate matter (PM—b), sulfur dioxide (S02), nitrogen dioxide, and lead (Pb) nonattaininent areas are still required to follow current EPA modeling guidance. 2 The iodeling guidance requires that maximum allowable emission limits for major point sources be used in demonstrating maintenance of short—term 2 The EPA-approved modeling guidance may be found in the following documents: “Guideline on Air Quality Models (Revised)’ (EPA—450/2-78—027R, July 1987) and “PM-b SIP Development Guideline” (EPA—450/2—86—OOl, June 1987). ------- 3 idardS• 3 It is necessary to continue the wable emissions when projecting emissions . attaiflment areas because, in some cases, larc€ s ur.es 0 peratifl at full capacity could by themselves 3 exceed ce of the applicable national ambient , ir ; tY standard. In contrast, large point sources are j Ke1y to be dominant emission sources in inventories for onattaifl1 ent areas, and it is unlikely that the it tu e of smaller sources would be operating at maximum ca. 3 tY simultaneously. S For further information regarding the use C actual axed allowable emissions for maintenance demonstrati0 for o:on co areas, please contact Carla Oldham at (919) For jnformatiofl on projecting emissions for S02, pt(l ), 3T.d Pb onat aiflment areas, please contact Robin Dunkifl t 919) 5335. cc: Air Branch Chief, Regions I-X John Cabaniss, OMS Mary Henigin, OAQPS Bob Kellam, TSD Rich Ossias, OGC John Rasnic, SSCD John Seitz, OAQPS Ann Goode, OAR Lydia Wegman, OAQPS 3 Maxi um allowable emissions are calculated uSj the enforceable (i.e., allowable) emission rate mUltiP11 by the ximu m operating capacity of that source at contiflU S operation fii .i... there are federally—enforceable limits on hours of tion). ------- ..,J. ., d• • f(D 1T I 1% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFRCI OP *1* N1O lACtATION SUBJECT: Part D New Source Review (part U NSR) Requirements for Preas Re esting Redesignat ion to Attainment flOX: ‘ Assi tant Admini tor for Air and Radiation (6301) Director, Air, Pest icides and Toxics Management Division, Regions I and IV - Director, Air and Waste Management Divis ion, Region II Dirictor, Air, Radiation and Tozica Division, Region III Director, Air and Radiation Division, Region V Director, Mr, Pesticides and Toxica Division Region VI Director, Air and Taxies Division, Region. VIZ, VIII, IX, and X I. Iflt1 Ø4pcjiqp With this memorandum, EPA is amending one aspect of quid nc. issued September 4, 1992k and September 17, 19932 regarding requirements for nonattainment areas requesting rsdesignation to attainment. In these previous memoranda, EPA indicated that -States must submit and receiv, full approval of any part D NSR regulations that were required by the Act to be submitted to EPA prior to or at the time cf the submission of a couplets redesignation request. ml EPA has reconsidered that policy, however, and is establishing a new policy under which 1 Xemorandum entitled, “Procedures for Processing Requests to Redesignate Arias to Attainment,” from John Calcagni, Director, Air Quality Management Division, to Regional Air Division Directors. ‘Memorandum entitled, “SIP Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and CO NAAQS On or After November 15, 1992,” from Michael H. Shapiro, Acting Assistant Administzator for Air and Radiation, to Regional Air Division Directors. P* tedon A yded Pap. , ------- i.c —v ’’” 4J ‘ ‘ j i1I/94 2 nonattainnent areas may be redesignated to attainment notvithstanding the lack of a fullyapproved part 0 NSR program, provided the program is not relied upon for maintenance. In addition, EPA is not re uiring that existing part 0 NSR rules be placed in the contingency portion of the maintenance plan pursuant to section 175A of the Act. As discussed below, however, EPA believes its new policy will assure that the statutory goals of part D uSE and section 375k to protect and 1 aaintain the NMQS ar . achieved. The EPA believes that this new policy is justifiable under the Agency ‘a general authority to establish exceptions to statutory requirements wher, th. application of th. statutory requirement. would be of trivial or no value environmsxita!ly. [ see AlabalnaPewarcQ . V. g5 ]5, 636 1.24 323, 36061 (D.C. Cit. - 1979).] I X. ac1caroundiC1.an Air Aot Reguirrnnts Section 2.07(4) (3) (E) of the Act requires that a State have in plac. a fully.approved SIP meeting all the requirements —applicable to a nonattainment area under section 2.10 and part D of title I oZ the Act in order for the area to be redesignated to attainment. .‘ - In addition, section 375k requires that the area must have a fully.appreved maintenanc, plan containing contingency provisions, as necessary, to promptly correct any violation of th. applicable 1JAAQS that occurs after radesignation of the area. At a minimum, the contingency plan must “include a requirement that the Stat. vii ]. implement al ) measures with respect to the. control of the air pollutant concerned Which were contained in the State implementation plan for the area before radasignat ion of the area as en attainment area.” The NSA requirements ar. contained in section 110(a) (2) (C) and in parts C-and 0 of title I of the Act. Broadly sp.aking, section 110(a) (2) (C) of tb. Act mandates th. development of a preconstruction review program to assure that the construction or modification of any stationary source is consistent with attainment of the NMQS. The nonattainment NSA program in part D NSR and the attainment area prevention of significant deterioration (PSD) progran in part C apply to major new sources and modifications of existing major sources. (Implementing regulations that set forth minimum requirements for Stats or local programs and Federal permitting programs have been promulgated at 40 CPA part 51 subpart I and appendix 5, and 40 c i a section 92.21, respectively.) To assure. that major new or modified sources do net interfere with reasonable further progress towards attainment, nonattaira.nt area part 0 NSR requires installation of control crt z .. ------- 0 1d1004/OO T p 10/14/94 15:59 ‘ 919 541 O82 EPA_OZONE 3 technology representing the lowest achievable emissions rate (LAZR) and emission off ets. To prevent “clean air areas from significant degradation, the PSD program requires installation of best available control technology (BACT) and modeling to show that the new or modified source viii not cause or contribute to. violation oi a NAAQS or a PSD air quality growth increment. Previously, EPA intàpreted those provisions toqether to ‘equirs that any area seeking redseignation to attainment must have fully-approved part D 1 SR rules as part of the required fully-approved SIP. In addition, upon ;edesiqnation, th. part D N$R rules were to - be placed in the maintenanc, plan contingency provisions in accordance with section 175A of the Act unless the area needed to continue implementing part 0 NSR as on. .l .nt of the maintenance strategy. III. NSR Policy atid. LecaL matioi ale Tb. EPA now believes that a d& minimis exception to the requirement of section 107 (d) (3) (2) for part D NSR is justifiable because requiring the adcption and full approval of a part D NSR program as a prerequisite to r.designation would not be of significant environmental value in certain circumstances. The EPA has reconsidered its earlier position because, once an area is redesignated to attainment, the part 0 NSR program may be replaced by the corollary P 50 program, if it i shown through the maintenance demonstration that the area will maintain without part 0 NSR and because part 0 NSR need not become part of the contingency plan. A. Preconatruction Review Programs in Attainment Areas There are several provisions in the Act and in EPA’s regulations that require preconstx’uction review of new or modified major sources in attainment areas to assess the impact of the proposed emissions increases on the applicable N AQS. - These include the P60 program which covers 100 ton per year (tpy) or 250 tpy or greater sources (depending on the source category), the preconstruction review requirements of 40 CFR 51.165(b) that cover 200 tpy or greater sources, and the Interpretive Offset Rule. .s to ozone, there are some particular requirements that apply. The EPA believes these programs will ensure that major nov sources and modifications are given adequate praconstructien review. After redesignation to attainment, State PSD rules, or Pederal PSD rules in a delegated program, must ensure, as required by sections. 165(a) (3) (5) and 110(a) (2) (C) of the Act, that preconstruction revie of new and modified major sources vii ] prevent increases in emissions that would cause or contribute to violations of the NMQS. (See 40 CIR 51.166(k), 40 R 52.21(X). ] ------- iU/Le/ 4 iQ• 4 In addition, EPA ’S regulations at ‘40 CFR 51.165(b) require that SIP’s contain preconstruction review requirements that apply to new or modified 100 tpy or greater sources of a pollutant in areas designated attainmont or unclassifiable for the pollutant in cases where the new or modified source would contribute to a violation of a NAAQS. This requirement provides for precenstruct ion review for sources that are exempt from PSD due to PSD’s higher (250 tpy) major sourcs threshold for certain sourc. categories. In the absence of SIP provisions that comply with 40 CFR 51.165(b) or a part D NSft program, States would have to use the Interpretive Offset Rule at 40 C1’R 51 appendix S as a surrogate rulà for permitting new end modified major sources in these attainment areas. (S .. 45YR 31310, Kay 3.3, 1980.) Por $03, PM—b, NO 2 , and CO , EPA has established 1.v.as ot mbi•nt impact.. to determine whether the major new or modified source would cause or coittribut to a violation. Where the source is found to cause or contribute to a violation, the source • would be subj sot to more stringent technology and emissions. “mitigation requirement. of appendix S or a 40 CPR 51.165(b) pro raa. With particular respect to ozone, because of the difficulty in modeling the impact of emissions from specific sources on ozone formation, EPA regulations (40 CFR 51.165(b) (3) and appendix 5] do not fully address how emissions of ozone precursor. should be treated to assur. that major new or modified source. do net cause or contribute to a )1AAQS violation. Neverthebos., if preconstruction monitoring or other information indicates the area is not continuing to meet the standard after redneignation to attainment, appendix S or a 40 CYR 51.165(b) program would also apply. The EPA believes that in any area that is designated or redesignated as attainment under section 107, but experiences violations of the NAAQS, these provisions (and any izplementiv g SIP provisions) should be interpreted as requiring major new or modified sources to• obtain VOC emission offsets of at least a 1:1 ratio, and aspruuming (consistent with section 182 Ct)] that 3.11 NOx off8stl ar, necessary.’ In addition, attainment (PSD) plans require that major new and modified sources apply BACT. Generally, BACT differs from LAIER by enabling permitting authorities to justify, based on The EPA. is in the process of revising EPA’s rules for NSR and P50, seas of which will replace appendix S. However, the proposed revisions will not change the substantive permitting requirements where an attainment area is violating the ozone IIA&Q$. ------- 1O’i4’ jO•UU L U* 4 trA —ULU ’ cU uuo#uus 5 economic, energy, and environmental impact., the use of control technologies less effective than the most stringent available. In an area that is not meeting the NAAQ$, EPA believes that due to consideration of thu NAAQS violations, the State may impose a more stringent lsvel of control than might be othsrvi e selected as BACT. (Sea Draft New Source Rsviev Manual, page 8 • 54 (October 1990).] Taken together, these preconstruction review programs can assure that major new or modified sources achieve the statutory goals of part D NSR end the maintenance provisions of section l75A B. Part D KSR and Contingency Provisions Requiring the full approval of a part 0 $SR program would ensure that th. program would become a contingency pro4sioar in the maintenance plan. As stated above, pursuant to section 275A(d) and section 107(d) (3) (E), the contingency- plan must contain, at a minimum, all measures contained in the nonattainment SIP. However, EPA is interpreting the term “measure” as used in section 175A(d) so a. not to include part 0 NSR. The term “measure” is not defined in section 175A(d) and Congress utilized that term differently in different provisions of the Act with respect to the P50 and part 0 NSR permitting. programs. For example, in section 110(a) (2 (A), Congress required that SIP’s include “enforceable emission limitations and other control measures, means, or tchniques . . . as may be necessary or appropriate to meet the applicable requirements of the Act.” Xn section 1lO(a)(2)(C), Congress required that SIP’s include “a program to pr vids for the enforcement of the described in subparagraph (A) • m d regulation of th. modification and construction of any stationary source within the areas - covered by th. plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D (i.e., PSD and part 0 NSR).” ( phasis added.] If the term “measures,” as used in sections 110(a) (2) (A) and 110(a) (2) (C), had been intended to include P50 and part 0 NSR, there would have bun no point to requiring that SIP’s include both measures preconstruction review under part. C and 0 (P50 or part D NSR). Thus, in sections 110(a) (2) (A) and (C), it is apparent that congress distinguished the requirement for “measures” from the requirement for preconstruction review programs. On the other hand, in other provisions of the Act, such as section 161 Congress appears to have included P 50 within the scope of the term “measures.” ------- 6 The fact that Congress used the undefined term “measure” differently in different previsions of the Act indicatss.that the term is susceptible to acre than one interpretation and that EPA baa the discretion to interpret it in a reasonable manner in the context of section 175k. Inasmuch as Congress itself has used the term in a manner that excluded PSD and part D NSR from its scope, EPA believes it is reasonable to interpret “measure,” as used in section 175k(d) • not to include part D NSR. The reasonableness of this interpretation is further supported by the fact that PSD, a program that is the corollary of part D NSR for attainment areas, goes into effect in lieu of part D NSR,’ and that, as discussed above, EPA intends to implement the PSD and other NSR programs in a way that viii achieve the basic utory goals of part D NSR. Therefore, EPA does not believe thit par 0 NS& need be part of an area’s contingency plan. IV. Othar Jecuired Proarams The EPA is not changing its previously stated policy with respect to the need Car States to adept and receive Lull approval. of other programs required. by the Act prior to or at the time of -- the submission of a redesignation request. The existenc. of a cer’âllary program for attainment area . distinguishes part D NSR from other required programs under the Act, such as enhanced inspection and maintenance and reasonably available control technology (RACT) programs, which have no corollary program. Moreover, EPA believes that those other required programs are clearly vithin th. scope of ths term !m.asure” as used in section 175k. For further information regarding part 0 !ISR requirements. for areas redesignatirtg to attainment, please contact Carla Oldhaa at (919) 541—3347; for general information about PSD requirsinents for attainment areas, contact Dennis Crumpler at (919) 541—O$71 - cc: Air Branch Chief, Regions I-X EPA is not suggesting that NSR and PSO are equivalent, but merely that they are the same type of program. ------- /2? j O 57 tat UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards Research Triangle Park, North Carolina 27711 NOV 161994 M MORAN1MTh1 SUB3ECT: Limited naintenance Plan Option for Nonclassifiabis Ozo e Nen ta nment Areas PROM: S y aver, D ector Air Quality Strategies & Standards.Divisipn ( —35) TO: Director, Air, Pøaticid.s and Toxics Management Division, Regions I and TV Director, Air and Waste Management Division Region II Director, Air, Radiation and Toxic.. Division, Region .111 Director, Air and Radiation Division, Region V . - Director, Air, Pesticides and Toxic. Divi. .on Region VI Director, Air and Toxic. Division, Regiens’VIt, VIII, IX, and X I. P2M This memorandum seti forth new guidance on aint.nance plan requirements for certain nonclaisifiable ozone nonattainaent areas seeking redesignation to attainment; In particular, nonclasaifiable ozone areas vhose design values are at or below o • 106 ppm (85 percent of excesdanco levels of th ozone NAAQS) at the time of red.signation say choose to submit a less rigorous maintenance plan than was formerly required. This new option is being termed a L imited maintenance plan. Nonclassifiable ozone areas with design values greater than 0.106 ppm will continu, to be subject to full maintenance plan requfr.ments described in the Septaabe 4,- 1992 memorandum, NProc.dursa for Processing Requests to Redsái ate Areas to kt’ .ainment, from John Calcagni, farmer Director of the OAQPS Air Quality Management Division to the Regional Air Division Directors. There are three types of nonclassifiable ozone areas: submarginal, transitional, and incomplete/no data. A description of these areas is included as Attachment A. ------- Li/JU/ 4 u..iu 2 II. Section 107(d) (3) (E) of the Act provides that a nonattainment area can be redesignated to attainment if the following criteria are met: 1 ’ .1. The EPA has determined that the NAAQS for the applicable pollutant has been attained. - 2. The applicable impl.aentatiori plan has been fully adopted under section 110(k). • 3. The EPA has determined that the improvement in air... quality is due to permanent and enforceable reductions in___ emissions • • . 4. The . State has met all applicable requirements f th area under section 120 and part D. 5 • The EPA has fully approved a maintenance plan, including a contingency plan, for the area under section 175k. .1 Section 175k of t1 . provides the general. framework for maintenance plans. The maintenance plan must provide, for maintenance of the NAAQS .f or at least P10’ yesre’ after radseignation, ’ incluM g any additional. control measures a. may be necessary to ensure such maintenance. . addition, maintenance plans are to ‘contain such contingency’ provi.ion as EPA deems necessary to assur. the proi t correction of a. violation of the )1A&QS that ocaurs after red?siqnation. The contthge ’ - measures must include, at a min .‘ rn, a rec irsrnent tha- the ate will implement all control m . - ures co .tained in the nonat. 4inment SIP prior to. rsdësignatior Seyond these requirements, however, section 175k does nOt define the content of a maintenance plan. . Thus, EPA has the authority to exercise reasonable discretion to determine those requirements. The EPA has previously issued guidancs on meeting all five criteria for redesignation including maintenance plans (see Attaeb a.’ t B). The EPA now believes that it ii justifiable and approp Let, to apply a d tffsrent set of maintenance plan requirsmsnt$’. (described herein) to a limited category of ozone nonattainment- areas--nonclassifiable areas whose monitored air quality is equal to or less than 85 percent of exceedance levels of the ozone NAAQS. The EPA does not believe that the full maintenance plan requirements need be applied to these areas because thy have achieved air quality levels veil below the ‘Section 175 also requires that 8 years after redesignation, the State must submit an additional. plan to provide for maintenance for a second follow—on 10—year period. ------- L.L,jUfl 1 u..a.i. . . 3 standard without the application of control measures required by the Act for classified ozone nonattainment areas. Also, these areas do not have either a recent history of monitored violation of the ozone NAAQS or a long prior history of monitored air quality problems. The EPA believes that the continued applicability of prevention of signifjcant deterioration (PSD) requirements, any control measures already in t he SIP, and Federal measures (such as the Federal - motor vehicle control program) should provide adequate ‘assurance of maintenance for these areas. III. Oualifyinci for the Limited Xaint.nanc. Plan Option To qualify for the limited maintenanc, plan option,• the baone design value for the area, based on the 3 years of ta used to demonstrate attainment, must be at or below 0.106 ppm (85 percent of exceedance levels of the osone NAAQS).. - Additionally, the design value for the area must continue to be at or below 0 106. ppm until the time of final EPA. action. on- the redesignat ion. The method for calculating design values is presented in t e June 18. 1990 memorandum, 5 Osone and Carbon MonOxide Design Value Ca lculations, from William C. Laxton, former Director of tb 0?tQPS Technical Support• DLvis ion to Regional Air Directors. The morandum focuses primarily on determining design values for nonattainment areas in order to classify the areas as marginal, moderate, serious, sever., or .xtr.ae. Therefore, the document discusses determining the design value for an area based on the monitors. which are exceeding the standard. In the case of a nonattainient area seeking redesignat ion to attainment, all monitors must be meeting the standard. To assess whether a nonclassifjabla area meets the applicability cutoff for the limited maintenance plan, a separate design value must be developed for every monitoring site. The highest of these design values is th. design value for th. whole - area. If the area design value is at or below 0.106 ppm, the State may select the limited maintenance plan option for the first 10-year maintenance period. If the design value for the area exceeds 0.3.06 prior to final EPA action on the rsdesiqnatjqn, the area *o longer qualifies for the limited maintenan. lan and must instead submit a full maintenance plan. The EPA issue guidance - in the future on the applicability of the limi tma intenance plan option to the second follow-on 10— year maintá sTsánce period. I V. Limited MaintenanceP1ar Elements Following is a list of core provisions which should be included in a limited maintenance plan. Any final EPA determination reg4rding the adequacy of. a limited maintenance plan will be made following review of the plan submittal light of the particular circumstances facing the area proposed for redesignation and based on all relevant available information. ------- 4 a. Attainment Inventory The State should develop an attainment emissions inventory to identify a level of emissions in the area which is cuff icient to attain the NAAQS. This inventory should be consistent with EPA’s -most recent guidance 2 on .missio s inventories for nonattainment areas available at the time and should represent emissions during the time priod ‘associated with the monitoring data showing attainment. The thv ntory should be based on actual “typical summer day” emissions of VOC and NOx (ozone .precursorB). Emissions of Co are not necessary in the attainment inventory because they will not be tracked for maintenance purposes. b. . -. .. __ .. _ . . I3emoflStrati... . The maintenance deacnstration requir. nt is considered tp. be satisfied for nonclassifiabim areas if the monitoring_data:’ show the area is meeting the air quality criteria discuEld’ above • There is no requirement to -project .emiss.ions over the. maintenance period. Th EPA believes if the area begins the maintenance period at or below .85 percent of .xceedance . levels, the-air quality along with the continued applicability of PSD requirements, any ontro1 measures already in the SIP, and Tederal measures, should provide adequate assurance of maintenance over the initial 10-year maintenance period. When EPA approves a limited maintenance plan, EPA is. concluding that an emissions budget may be treated as essentially not constraining for the length of th. maintenance period because it is unreasonable to expect that such an area will experience so much growth in that period that a violation of the ozone NAAQS would result. c. M torli a W.±wçrjei2r(f(eatlon f C ttnu.d Attainment To verify the attainment status of the area over the maintenance period, the maintenance plan should contain - provisions for continued operation of an appropriate, EPA- approved au quality monitoring network, in accordance with 40 CFR part S$ . This is particularly important for areas using a limited aaf*t ànance plan because there will be no cap on emissions... The EPA’s current guidanc. on the preparation of emissions inventories for ozon. areas is contained in the following dc ts: Procedures for the Preparation of Emission Inventories for Carbon Monoxide and Precursors of Ozone: Volume I” ( 1—45O/4-9l—0l6), “Emission Invátory Requirements for Ozone State Implementation Plafls” (EPA-450/4-91-O10), and “Procedures far ission Inventory Preparation: Volume IV, Mobil. Sources’ ( A—45Of4—8l—026d). ------- .L/. U/W4 5 d. Contingency Plan Section 175k of the Act requires that a maintenance plan includ, contingency provisions, as nsc.ssary to promptly correct any violation of the NAAQS that occurs after reds.ignation of the area. These contingency measures do nt have to be fully adopted at the time of redesignat Lon. However, the contingency plan is considered to be an enforceable pert of the SIP and should ensure that the contingency measures are ‘adopted expeditiously once they are triggered by a sp.cified event. The contingency plan should identify the measures to be promptly adopted and provide a schedule and procedure for adoption and implementation of the measures • The State should also identify specific indicators, or triggers, which will be used to determine when the contingency m asures need to be implemented.. While a violation of. thd’RKAQS is an acceptable trigger, States may wish to choose a pre violation action level as a trigger, - such as nn sxceedancq- of.-tha NAAQS. By taking early action, a State may be able to prevent any. actual violation of the- NAAQS and,.- therefove, eliminate any need on the part of EPA to redesignate an area back to -nonattaixnnent.. . - I V. Conformity Determinpt ions Under Limited Maintenance Plans The.transportatien conformity r ••(55 FR 62288; November 24, 1993) and the general conformity rule. (58 . 63214; November 30, 1993) apply to nonattainm nt. areas and maintenance areas operating under - maintenance plans. Under either rule, means of demonstrating conformity of Federal actions is to indicate that expected emissions from planned actions are consistent with the emissions budget for the area. As discussed above in section IV(b), emissions budgets in limited maintenance plan areas may be treated as essentially not constraining for the length of the initial maintenance period because it i. unreasonable to expect that such an area will experience so much growth in that period that a violation, of the ozone NA QS would result. In other word., A would be concluding that emiesibne need not be cspp.d for the maintenance period. Therefore, in areas with roved limited maintenance plane, Pederal action. requiring ormity determinations under the transportation. conformity i*JØ- could be COnG idered to satisfy the U budget test required in? *eotions 93.1L8, 93.119, and 93.120 of the rule. Similarly, in. these areas, Federal actions subject to the general conformity rule could be considered to satisfy the budget testU specified in section 93.158(a) (5) (i)(A) of the rule. Per further. information regarding th. limited maintenance plan option for nonclassifiable ozone areas, pleas. contact Carla Ol aa at (919) 541—3347. For information, regarding transportation conformity requirements, please contact Kathryn Sargeant of the Office of Mobile Sources at (313) 668—4441. For ------- Li/JU/ 4 j u:. vee, 6 information regardtng general conformity requirement., please contact Doug Granc at (919) 541—3292. Attachments ------- ATTACE ENT A The EPA used 1987-8 as the primary data years in determining designations and classifications for ozone areas set forth in the November 6, 1991 final rule on Air Quality Designations and Classifications (56 PR 56694). Certain ozone nonattainment areas could not be classified as marginal or above under Table 1 of section 181 (a) (1) ef th. Clean Air Act either becaus. of incomplete monitoring data. or because they were nonattainment pro-enactment but did not violate the itandard during 1987-89. These areas are ollectively called nonclassifiabje areas. Zionclassifiable ozone areas consist of transitional, vub vginal, and incomplete/no data areas. Transitional ar.as • An area is considered transitional under section 185 .if it was designated nonattainnent both prior to enactment and at the ti*e of. enactment, and did not violate the primary NAAQS for ozone over the 3—year period from 1987—1989. Section 185k of the act reqiairod EPA tO make a detErmination, by June 30, 1992, whether the designated • transitional areas had continued to meet th. ozone NAAQS through D. ember 31, 1991. All 1.2 transitional areas were attaining the NAAQS through December• 31., 1991 and none are b’own to have violated the standard since. En May and ‘June of 1992, Regional Administrators sent letters to Governors of States with transitional areas notifying them of EPA’s determination. Bubmarginal areas Compliance with the ozone NAAQS is determined on the basis of expected exceedances ,jtijch include, an adjustment for missing data.’ The aubm rgina1 ’ category includes areas that violated ‘the ozone NAAQS during 1987—89 but had a design value for the period of less than • 121 ppm (the lower limit for marginal areas) du. .tc the adjustment for missing data when calculating expected, exceedances. Presently, there are no submarginal areas. - TncempletaImo data ar.ai • Ce ozone area designated nohattainment prior to • enactment that at enactment did not have sufficient air quality monitoring data to determine whether they wore or were not violating the !ThAQS. These areas are termed incomplete/no data areas. These include areas which do not have monitors. Currently, there are 47 incomplete/no data areas. ‘This adjustment procedure is described in 40 CFR part 50.9, appendix H. ------- ATTACHMENT B Thu EPA policies for implementing sections 107 and 175k of the Act for redesignations ar. contained in the following memorandums. 1. “Procedures for Processing R juests to Redesignate Areas to Attainment,” John Calcagni, Director, Air Quality Management Division, September 4, 1992. - 2. “State Implementation Plan (SIP) Requir m ts for Areas Sub 4tting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CC) National Ambient Air Quality Standards (RAkQS) on or after November 15, 1992,” Michael. Shapiro, Acti ng. Assistant Administrator for Air and Radiation, September 17, 1993. 3. “State Implementation Plan (SIP) Action. Submitte-. Response to Clean Air Act (CM) Deadlines,” John Calca nt’o Director, Air Quality Management Division, October 28, 1992. 4. “Contingency xeasures for Ozon. and Carbon Monoxide (CC) Red signations,” G. . Helms, Chief, Ozone/Carbon Monoxide - Programs Branch, June 1, 1.992. 5. “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498; April 16, 1992). ------- Federal Register I Vol. 60, No I I Tuesday, Janu ry 3. 1995 / Rules ancFRe ujatLons illinois’ August 15. 1994. withdrawal of its SIP submission. In the proposed ‘cs section of this Federal Register EPA Is withdrawing Its May 13. 3. proposed site-specific RACI ufretnents for AlIsteel ’s paint operations end Its June 13, 1993. proposal to disapprove the State’s SIP submission and to promulgate a new rule for the adhesive operations. In this final rule USEPA Is withdrawing the May 31. 1991. and the June 4. 1993. stays pending reconsideration, since they are no longer necessary to.complet. reconsideration of the subject rules. It should be noted that USEPA!s June 29. 1990, FIP regulations remain In place.- Pursuant to the good cause exception In section 553(bXD) of the Administathe Procedure Act. USEPA Is taking r .l action without proposaL Tho USEPA believes notice-end- comment rulemehbig isunnec csary to rescind the stay of the FIP ivies because the stay affects only one party and that party requested the stay. Furthermore. there ware no commo ts when USEPA Initially promulgated the stay. In addition, USEPA believes It Is In the public interest to forego notlce ’.nd- coinmant ru1 ’ btg and to ii-ednd the stay as expeditiously an possible because (1) Allateel has withdrawn the ‘eIIUon for recn sIdesaUon upon which p stay was based. , and (2) an a result lhe resdulon of the stay, the June 29,. 90 liP regulations are fully enforcs ab ls. LMOfS b iiiIsb40Q ’RPart52 Environmental protection. Air pollution cu.trJ , Volatile iu &ulC xmpou d. - ,. - . . , :.. Entsd l minbsr 23,1994. ‘: “ A,1i ’ ‘ ‘ . : -‘. For the res ’ slated In the preamble, part 52. chapter 1.1111.40 of he Code of Federal Regulations Is imended an follows: - Subpart 0—Illinois 152.74 (Amsad.dj 2. Section 52.741 Is amended by removing and reserving paragraphs (zKl)(ii) and (z)(5J, sad In paragraph (zXIKI), by removing the semicolon and the word ‘and” at the . end of the .a ..graph and adding a pcrwd. £ ic. 01-3227 5 FlIed 12—30—94; &45 anti o,ssN p 4OCFR PartS S2and 81 (F1.54—1-6026a; FRL-6089 —2J Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Pu posea State of Florida AGENCY: U.S. Environmental Protection Agency (EPA). ACTiON: Direct final rule. $JNMARY: On June 23, 1993. the State of Florida. through the Florida Department of Environmental Protection (FDEPJ. submitted a maintenance plan ends request to redesignate the Duval County area from Intnsltlonal nonattainment to attAInment for ozone (0,). The 0, nonaltainment area consists only of Duval County. Under the Clean Air Ad (CM), designations can be revlsed If sufficient data are available to warrant such revisions. In this action. EPA Is approving Florida’s request becaus, It meets the maintenance plan and redesignatlon iequkements set forth hi the CAA and EPA Is approving the 1990 baa. year “ ons inventory. The approved malnt i.iw plan w 111 bacon . a federally enforceable pert of the State Implemantatlon Plan (SIP) for the Duvel County nonattlnment ares. 0AT This final rule will be effective March 0.4995 unless adverse or eritknl comments are received by February 2, • 1995.11th. effectIve date Is delayed, timely notice will be published In the Federal Rigid.’. AOORUSES Written comments on this action should be add . ued to Joey LVasseur, at the EPA Regional Office listed below. Copies of tire decumans . relative to this action are available for : du r iu =. locations. The Interested parsons wanting to e7amlne these docwnents should make en appointment with the appropriate office at least 24 hours before the visiting day Air and Radiation Docket and information Center (Alt Docket 0102), U.S. Environmental Protection Agency. 401 M Street, SW., Washington. DC 20400 Environmental Protection Agency. Region IV Air Programs Branch. 345 Courtland Street. NE.. Atlanta. Georgia 30305 Air Resources Management Division, Florida Department of Environmental Protection, Twin Towers Office Building. 2600 Blair Stone Road. Tallahassee. Florida 32399-2400 FOR FURT)fR r4FORMATION CONTACT Jooy LaVasseur, Regulatory Planning and Development Section, AIr l’Tograms 41 Branch. Air, Pesticides & Toxics Management Division. Region IV Environmental Protection Ageiuc -, 345 Courtland Street, NE., Atlania, C ergia 30365. The telephone number Is 404/ 347—3555 ext. 4215. Reference rile FL.54—1—6 020. SUPPLEMENTARy INFORMATION; The CM. as amended In 1977 (1977 Act) required areas that were designated - nonattainment based on a failure to meet the 0 national amhicnt air quality standard (NAAQS) to develop SIPs with sufficient control niessurns to expeditiously attain and maintain the standard. Duval County was designated under section 107 of the 1977 Act as nonattainment with respect to i!u’ O NAAQS on Man h 3, 19711. (4:; 1N fl ’ 1 114, 40 (JR Section 111.3101 In arvnrdsuice with section 110 nftlin 1977 A1. - State submitted a par* -L 1l’ on April 30. 1979, whIch was supplemonted en August 27. 1979, end January 2Z’ 1980. whIch EPA conditi lly epprovid on March 18.1980, and ftlly approved on May 14, 1981. as meeting the requirements of section 110 and part U ofthe Ig77Act. - On November 15, 1990. the CAA Amendments of 1990 were enacted (1990 Amendments) IPub. L. 101—549, 104 Stat. 2399, codlflod at 42 USC. 45 7401—7071q). The nonattainmont designation of Duval County was continued by operation of law pursuant to section 107(dHIXCXI) of the 1990 Amendments. Furthermore, It was classified by operation of law as transItIonal for 0, acuwdlng to section 181(CXI). (See 58 FR 56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30, 1992), codified at 4O R 81.310.)- Dire.! County more ieomMly has -- ambient monitoring data that show no violations of the 0, NAAQS. during the peeled from 1987 through 1993. In addition, there have been no exceedences reported Fur the 1994 0. season, to date. Therefore. In an effort to comply with the amended CM and to ensure continued attainment of the NAAQS, Florida submitted an 0, maintenance SIP for the Duval County area on June 23. 1993. and a supplemental revision on August 23. 1994. Florida also requested redesignation of the errs to attainment with respect to the 0, NMQS. - The 1990 Amendments revised section 107(d)(tftEJ to provide five specific requirements that an area must moot In order to be redesignated from ncinattainmant to attainment. 1. The area must have attained the a 1 iplir.ablo NAAQS: 2. The area must fleet ;,Il rnliivant requirements under section 1111 and pert o of the CAA; p/U S 1. ’ reatinues to read as foL Aatb . ,illy. 42 USC. 740 ------- - . 42 Federal Register F Vol. 60, No. I I Tuesday, January 3, 1995 / Rules and Regulaliotis 3. The area muit have a fully approved SIP under soctlOftllO(k) of the CAA; 4. The air qualily improvement must be permanent and enforceable; and 5. The area must have a fully approved maintenance plan pursuant to section 175A alike CAA; The Florida redosignation request for the Duval County area meets the five requirements of section 107(d)(3XE). noted above. The following Is a brief description of how the State has fulfilled each of these requIrements. Because the maintenance plan is. critical elsenent of the redesignatlas. request. E PA will discuss Its evaluation of the maintenance plan under Its analysis of the redeslgnatlon request. LAtIgI ient .1 the 03 NAAQS Th. florida request Is based on an analysis of quality assured 0, air quality data which Is relevant to the • maintenance plan and to the - redoslguation ruqueát. The ambient air 0, monItoring data fur calendar year —1987 through calendar year 1989 show an expected excoedence rate for the 0, standudellosstban 1.Operyearoflhe Oi NAAQS In the Duval County area. resulting In a classification of transitional. The most recent ambient 03 data for the calendar zear 1991 through - 1993 continued to show an expected exceedence rate of less than 1.0 per year of thu 0. NAAQS In the Duval County area. (See 40 CFR 50.9 and appendix H). Because the Duval County aura has complete quality-assured data showing no violations of the standard over the most rec.ent consecutive three calendar year period, the Duval County area has met the first stidutmy criterion of attainment of the O NAAQS. In wIdilino. there have been no ambient air e,tceedences to date In 1994 for 0.i. Florida has committed to continue monitoring in this ares in accordance with 40 CFR part 5& 2. Meeting AppPfib’ equImaienti of Section IU) and On Miy 14. 1 A fully iujiprnved Florida’s SiP fur County area as mei’ting the requliemonts of section 110(a) 12) and port DoItho 1977 Act (46 FR 266411). The 19’JQ Amendments, however. modifiNi anction 110(eX2) and, underpart D. revised section 172 meladded new tequueinenls for .11 as iainment areas. Therefore, for o(redmignntlou. to meet the . mquI — ” that the SIP contain all 1. _ M . requirements-under the Act, EPA has reviewed the SIP to ensure that It contains all measures that were duo under the 1900 Amendments prior to or at the ti he State submitted its redeeig -it request. A. Section 110 Requirements Although section 110 was amended by the 1990 Amendments, the Duval County SIP meets the requirements of amended section 1 10(aX2J. A number of the requirements did not change In subatance and, therefore, EPA believes that the pie-amendment SIP met these requirements. As to those requirements that were amended. (seS 57 FR 27936 and 23939. June 23, 1993), many are duplicative of other requirements of the Act. EPA has analysed tire SIP and determined that ills consistent with the requirements of amended section 11O(e)(2). B. Part D RequIrements Before Duval County may be redesignated to attainment, it also must have fulfilled the applicable requirements of part D. qnder part Dan area’s classIfication Indicates the requirements to which It will ho subject. Subpart I of part D sets forth the basic nonattalnment requirements applicable to all nonaltalnment areas, classified as well as nonclasslflable. Subpart 2 of part D establishes additional requirements for nonattainment areas classified under table I of section 181(a) or table 3 of section 188(a). Subpart 2 requirements, however . are not applicable to transitional areas. The Duval County •area was daeslfled as transitional (See 56 FR 56894, codIfied at 40 R § 81 .530). Therefore. In order to be redesignated to attainment, the State • must meet the applicable requirements of subpart I of part D. specifically sectIons 172 (c) nd 176, and is not subject to the requirements of subpart 2 of part D. EPA interprets section 107(dX3)(EXv) to moan that, for a redeeignatlon request lobe approved. the State must have met all requirements that became applicable to the subject area prior to or at the time of the submission of the redosignatlun request. Requirements of the Act that come dun subsequent to She submIssIon of the ruduisignal ion request :iintlnu.n to be applicable In the area (see section 175A(c)) and, if the radealgualkin is disapproved, the state remains obligated to fulfill those mquirsensrnts. With the e. AIOfl of the RACI requirement. far transitional 0 nonattainnient areas that attained the standard as of December 31.1991, EPA has not determined that the section 172(c) requirements were applicable prlur to November 15,1993. Thus, no section 172(c) requirements other than the RACE requirement are applicable rcrqulrenwnls for purposes of this rodesignatiun. For RACT. EPA has stated that transitional ozone nnnaitalnment areas must Correct any enforceabIlity deficiencies in their existing RACF rulo prior to being redesignated to attainment. The SIilo corrected all identified deficlonclos In the State RACT regulations. The regulations apply in Duval County. Section 178(c) of the Act requires stales So revise their SIPS to establish criteria and procedures to ensure that Federal actions, before they are taken, conform to the air quality planning goals in the applbaubla state SIP, lire requirement to determine confonuuity applies to transportation plans. programs and projects dov Ioped. or approved under Title 23 ‘U.S.C. of the Federal Transit Act (“I - -t ortatior nformlLy”). as well us to her Federal Actions (“general ce dy”). Section iid further pr’:. .‘s thae4ke conformity revisions to •‘ uihmltied by States must be ömsistnuul with Federal curiforurity regulations that the’ Act required EPA tu. promulgate. Congress provided k it tire Slate revisions to be subm!tted one year after the date for promulgation of fiural EPA conformIty regulations. When thirt date passed wIthout such promulgation. USEPA’s (‘icnerni rmenzl,ku fur the bnplenurntatlon of Title I Infonned Slates that its conformity regulations would esiablich a submittal date j.c .i, FR 13498. 13557 (April 16. 1992)1. ‘Ilic I JSEI’A promulgaled final trauuipurtatkin conformity reguhuutiuius our Noveuubcr 24. 1993 (58 FR 62mM) and gr’neral conformity regulations on November 30, 1993(58 FR 63214). These conformIty rules require that States sihipt linth transper ration and gnnrerai cunkirmity provisIons in tire 511’ for areas designated nonnttainnwnt or sub jeu.t to a maintenance plan approved under CAA section 1 775A. Pursuant to section 51.396 of the transporlallon conformity ruin and section S1.8! 1 of the gencral confurnuily nile, Iho Slate of Finilda Is requireul to submit a SIP nevie;iiui u’nuIt.uinilig Imnspuftnl inn iuuifuurniily crili’ria and priwrduuri—s consistent with those established in the Federal rule by November 25. 199.t Similarly. Florida hr rnquuire ul to subunit a SIP revision containing general conformity crlti ’rla and procedures consistent with those established in tius, Federal riukiby December 1,1994. Because tire deadlines furthese sulmilitals have nut yet ,nture due. uhu y are not applicable requirements undrr sectiuun 107(dWJHF)iv) and. thus. affect approval of this redeicignati request. ------- Federal Register I VoL 60, No. 1 ! Tuesday; January 3. 1995 / Rules end Regulations 43 3. Fully Approved SIP Under Section 110 (k) of the CA.A Based on the approval of provisions under the pro.am ded CAA and EPA’. prior approval of SIP revisions under the 1990 Amendments. EPA has deturiuluied that the Duval County area has a fully approved SIP un’ 4 r seotiqa 1101k). which also meets the applicable requirements of sectIon 110 end part D as discussed above. 4. Improvement In Air QuaIItf Due to Perinan’ t and Enforceable Measures Under the pie-amended CAA, EPA approved the Florida SIP control strategy for the Duval County nonattainment area, satisfied that the rules and the emission reductions achieved ass result of those rules were enforceable. The control measures to which the emission reductions are attributed are volatile organic compound (VOC) reasonably available control technology (RACF) regulations, Stage I vapor recovery provisions. Federal Motor Vehicle Control Program (FMVCP), and lower Reid Vapor --Pressure (RVP). RACF regulations reduced VOC emIssions from those soutces subject to RACF by 28% from 1977 through 1990. Stage I controls applicable to gasoline stations previously not subject to regulations ruilucud V(X emissions from those soirrun by 82% from 1981 through 1990. The FMVCI reduced VOC omissions from motor vehicles by Total • 31.82% from 1985 to 1992. The reduction in RVP from 11.5 psI In 1985 to 7.8 psi In 1992 has reduced summertime VOC mobile source emissions by 25.38%. in assodallon with Its emission inventory discussed below, the State of Florida has demonstrated that actual enforceable on reductkme are responsible for the air quality Improvement and that the VOC emissions in the bass year are not artifirixily low due tolocal economic downturn. EPA finds that the combination of e’d fl ’tg EPA-approved state and federal measures contribute to the permanence and .tfoiveebillty of reduction in ambient O levels that have allowed the area to aH ta the NAAQS. 5. Fully Approved MaI I n . Plan Under Section 175A Section 175* of the CAA sets forth the elements of a malnt t.n plan for areas seeking redesignatlon from. to H lnmm1L The plan must demonstrate “ t” d attainment of the sppllcshle NAAQS for at least ten years after the A hi.Inl.lTsf r app. v a redeslgnatlon to at ” ’ent . EIght years after the redeelguatlen, the state west submit a levised nialntanth .r. plan which demonstrates stt Imnent for the ten years foilowlng the InItial ton-year period. To provide for the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule VOC EMiSslolts INVENTORY SUMMARY [ To e s per for IrnplementatI . adequate to assure prompt coi ect1on of any air quality problems. In this notice, EPA approving the State of Florida’s maintenance plan for the Duval County area becsuse EPA finds that F1o ide. submittal meets the requirements of section 175A. A. Emissions Inventory—Base Ycer Insenwry On November16, 1992, the State of Florida submitted comprehensive Inventories of VOC., nitrogen oxides (NO,J. and carbon monoxide (CO) from the Duval County area. The Inventories Include hiogenic, eisa, stationary, and mobile sources using 1990 as the base year for calculations to demon ate maintenance. The 1990 inventory Is cd ed representative of atteinment conditions because the NAAQS was notvlolaj9 4 during 1990 This Inventd 7’1s beitig approved in this notice. The State submittal contaIns the detailed Inventory data and u”p”.’les by county and source category. The comprliauitve hue year “ ons Inventory was submitted In the NEDS f9imat. Finally, this inventory was prepared In acoordance with EPA guidaiici. It also contains summary tables of the base year and projected mnt— ’ ’e year inventories. EPA’s TSD contains mere in-depth details regarding the base year inventory for the Duval County area. ‘4 1990 1904 1997 20 0b 2ee 5 Stationary poird Stationary area Hi way notle ....._._.. —___ Non4ligtway mobde ._.___ 1560 51.25 8249 24.63 45.53 17.01 46.00 64.24 26.36 45.53 18.14 44.65 51.10 27.22 45.53 188.84 - 19.20 45.71 49.09 - 29.10 . 45.53 20.87 39.24 48.33 29.41 45.53 Total 219.50 189.14 188.63 163.38 -. NO Emissions Inventory Summary [ Tons psi day) • 1990 1994 1697 2000 2005 s_ — - Stationary area Or Road moøde. No Røad mobta 101.16 8.37 81.40 21.07 10321 12.54 60.60 21.71 103.47 13.03 59.82 2226 10596 13.72 58.91 22.83 108.87 14.67 59.11 23.74 196.08 196.61 201.41 - 206.39 ------- Federal Register / Vol.. 60. No. 1 F Tuesda .Janunry 3, 1995 / Rult,q nnd Rngulalinns CO ElassloNs INVENTORY SUMMARY (Tomper day) . 1990 Stationery polid ——__‘ Slatiorury area ‘ - 30.6 7.6 452.7 156.3 646.2 On Road mu&iâe —____________ P Roed ui t Ja Total .. D. Demonsimi Ion of Maintenance— Progecfe*tlnvers lories TntaI V(W and NO, 1 emission. were prujrdcil from 1900 base year out to 2005, wIth Interim years of 1994. 1997. and 2000. There projected Inventories were prepared in acoordance with EPA guidance. The projections show that VOC emissions era expected to decrease 36.12 Ions or 16.5% from the level of the base year Inventory during this time pozior!. ilie NOx emissions do show a slight Increase of 14.39 tons or 7.5% from 199010 2005, but the total precwsoiu of omne decreese from 411.5 tons to 389.77 tons for a reduction by 21.73 tons or 53%. Duval County ñ.Ined the NAAQS through. VOC control strategy. The Empirical Kinetics Modeling Approach (EKMA) was used to demonstrate the Impact of NO emlsskm in aaes on maximum ozone formation. The EICMA analysis showed that the projected future mix of emissions will not cause a violation of the NAAQS. EPA EXMA guidance docun -”s were used in developing modet ‘its. Th. model was run using 1987 r.v corological condjtfons and monitored ozone, NO and nonmethane organic compound (NMOC) concentration data for July 10. 1987. and was run In the EKMA calculate mode. This day had an uL ed ozone maximum concentratIon of 0.118 parts per million (ppm). The monitored NMOC/NO ratio of 4.13 was used us input. The model was run five Uniss using the following mix of ssIoos: (1) 1990 VOC and NO, 1 isicns (basecase); ‘ .: . . (2) base case with 7.5% ti NOx; ‘. (3) base case with 15% In . d NQx; (4)Irese with 30% increased NOx:arnL (5) base case wIth 73% Increased M) 5 and 10% NMOC mdteri$ans). The 4A predicted an maximum of U 7 ppm ming the 1990 case — —‘. 1 nr’ikl ‘ — ‘-sCion . L ,iedic I the mov’ ” (0. 519 ppmlby 19%. Tho model output indisaled a continual qk,ciesse.ln tho maximum modol.prcdicted ozone with each increase in NO, 1 emissions over the 1990 base case Inventory (see table). Additionally, the modeling indicated that the mix of emissions as indicated in the 2005 inventory (16% VOC reductions and 7.5% NO increase over the 1990 Inventory) produced lower ozone levels than the base case. Thus, th. analysis Indicates that, not, withstanding the projected In in, N0 emissions, the Jacksonville area should continue to maintain the standard throughout the maintenance Bass case: 0.09744 ppm Bess case +7.5% PlOx: 0.09624 ppm Bassems .15% NOR: 009512 ppm Base case +30% NO,r 009287 ppm Base care - 18% NMOC + 7.5% NOri 0.09439 ppm C Verification of Continued Attoinment Continued attainment of the 0, NAAQS in the Duval County arka - depends, In pert, on the State’. efforts toward tracking indicators of continued attainment during the maintenance period. The State has also committed to submitting periodic Inventories of VOC and NOx nl 1oas every three years. Duvel County’s contingency plan is triggered by two Indicators, a violation of the 0, NAAQS or a periodic inventory update that shows emissions of VOCa have lncre jid by at least five percent above the 1990 levels. D. Coitingency Plan The level of VOC emissions In the Duval County ares will largely determine its ability to stay in compliance with the 03 NAAQS in the future. Despite the State’s beat efforts to demonstrate continued compliance with the NAAQS, the ambient air pollutant concentrations may exceed or violate the NMQS. Therefore, Florida has provided contingency measures with a srhedule for implementation in the event Ma future 0, air quality problem. In the case of a violation of the 0, NAAQS, the plan contains a contingency to Implement additional control measures such as reinstatement of NSR. less volatile or reformulated gasoline. NO, 1 Reasonable Available Control Technology (RACfl. Stage U vapor recovery, expansion of control strategies to adjacent counties for VOC and/or NOx and to new control technique guidelines (CTC) categories end an enhanced vehicle emissions inspection program. The plan also contains a secondary trigger that will apply where no actual violation of the NAAQS has occurred. This trigger oomirs if a periodic invontery update shows omissions of VO s have increased by five percent above the V?9fl levels. On the occurrence of the secondary trigger, the State will complete an evaluation within six months to determine the most cn n- effective means for lowering VOC emissions to the 1990 levels. A complete description of these contingency measures and their Irigge’s can be found in the Stales submittal. EPA finds that the contingency measures iimvidml In the Slate aulimittal meet the mqtuin’mnutuls .1 smlims L75A(il) i,r lire CAA. 6. Subsequent Maintenance Plan .Rev ls lons In accordance with section l75iMb) of the CM. the Slate F ias agreed to submit a revised malntenauc ight years afler the area Is redesignated to attainment. Such revised SIP will provide for maintenance for an additional ten year ”n Final Action In this action. EPA is spprovlng the Duval County 0, maIntenance plan because It masts the requirements of section 175A. EPA I . also approving the 1990 bess year inventory summary. In addition, the EPA is approving the request and redesignating the Duval County area to attainment, because the State has demonstrated compliance with the requirements of section 107(dJ(3RE) for redesignation. The EPA is publishing this action without prior proposal because the EPA views this as a noncontroversial ecu ient and anticipates no advcr ‘unsenta. However, in a separ cumunt iii this Federal Register pU.: ion, the EPA is proposing to approve we SIP revision should edverso or critical coñimenta be filed. This action will be effective March 0.1995 unless, within 30 days of its publication, adverse OT critical comments are received. If the EPA receives such comments, this action will be withdrawn before the effective date by publishing a subsequent document that will withdraw the final action. ‘All public comments received will then he addressed In a subsequent final rule based on this action serving as a proposed rule. The EPA will not Institute a . ec ud comment period on this action. Any parties interested in commenting on this action shouiii u so at this time. II no such comments received, the public Is advised U i is action will be effective March 6. The O. SIP 1. designed to satisI’ lie requirements of part D of the CAA and to provide for attainment and maintenanro of the 0 NAAQS. This final redesiguratisin shn ,ld nnt lie ------- ____- Federal Register I Vol . 60, No. I / Tuesday, January 3, 1995 I Rules and Regulations 45 utcrprelod as authorizing the State to Liable. abler. or rescind any of the VOC or N0* omission limitations and restrictions contained in the approved 03 SIP. Changes 1003 SIP VOC regulations rendering them loss stringent than those contained in the EPA approved plan.cannot be made w boss a revised plan for attainment and maintenance is submitted to and approved by EPA. Unauthorized relaxations, deletions, and changes could result in both a finding of non. implementation Isection 173(b) of the CAM and In a SIP deficiency call made pursuant to section 1 10(a)(2)fti) of the CAA. I Judo, section 307(bXl) of the CAA. 42 U.S.C. 7607 (b)W. petitions for jtidiual review of this action must be fikd itt the United States Court of Appeals for the appropriate circuit by March 6. 1995. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for purposes of judicial review nor does It extend the time within which a petition for judicial review maybe filed, and shall not postpone IJr. effectiveness of such rule or action. This action may not be ral1enged later In proceedings to rforce Its requirements. (See section ao7(b)(2 1 of the CAA. 42 U.S.C. 7607 (bJ(2J.3 Nothing in this action shall be construed as permitting, allowing, or establishing a precedent for any future request for a revision to any SIP. Each request for revision to the SIP shall be considered separately In light of specific tuchnical, economic, and environmental factors and In relation to relevant slatulory and regulatory requirements. tinder the Regulatory Flexibility Act. 5 U.S.C. Section 600 e( seq.. EPA must IireNm a regulatory flexibility analysis u u siisg thu impact of any proposed or final rule on small entitles. $ U.S.C sections 603 and 604. AlternatIvely, EPA may certify Ibat the rule will not have a significant economic Impact on a substantial number of small entitles. Small entities indude small businesses, small not-for-profit enterprises, and government entitles with jurisdiction over populatrons of less than 50,000. SIP approvals under section 110 and subchapter!, part D of the CA /I do not create any new requirements. but simply approve requirements that the state is already imposing. Therefore. bemuse the federal SIP-approval does not impose any new requirements, I certify that It does not have a significant impact on small entitles. Moreover, due to the nature of the federal-state relationship under the CAA, pieparatlon of a regulatory flaidblllty analysis would constitute federal Inquiry into the economic reasonableness of state action. The CA / I forbids EPA to base Its actions concerning SIP. on iush grounds. Union Electric Co.v. U.S. E.P.A., 427 U.S. 246,230-00 (S.Q. 1976); 42 U.S.C. section 74 0(aX2). The Office of Management and Budget has exempted this rule front the requirements of section 3 of Executive der 12291. List of Sub jeds 40 CFR Port 52 Air pollution control, Hydrocarbon.. Incorporation by reference. Intareovenrmental relations, and Ozone. PART 52—(AMENDEDJ 1, The authority citation for part 52 continues to read as follows: Auth.rIly ’ 42.U±C. 74 O 1 -?671q. Subpart K—Florida 2. SectIon 52.520. is amended by adding paragraph (c3(81J to read as follows: • 52.120 Idsedlkatlon of plan. • * S S S (c) a a (81) The maintenance plan for Duval County submitted by the Florida Department df Environriental Protection a ’s June 23,1993, s ct.of the Florida (I) Incorporation by referer?ce. (A) Duval Coti1 Ozone Ten Year ). 4 .Iiit anca Plan Including Emissions Inventory Suiniii.ry and Projections effective onAugust 23,1994. (U) Other matedal. None. • a a a PART 81 —(AMENDED) 1 The authority d ’ e” for part 81 continues to read as followr Aetbertty 42 U.S.C 7401-7611. Subpart C—Section 107 AttaInment S t ata. 2. In § 81 .310 the s.ttalnment status table for “FlorJAa-Omise” Is amended by removing the entire entry for “Jacksonville Atea Deval County” and adding anew entry in alphabetical oider under the heading “Rest of 5 1kb” to read as follows: 40 CPR Part Ii Air pollution control, National parks. and Wilderness areas. Dei.d Sep a .ihi.r ze, 1594. Jan L Fr-”1 .th.. , Acting Regional Adsrdnlsfrator. Chapter 1, title 40. Code ojFederui Regulations, Is amended as follows: Dssignat i sn area -. Date’ C1.u alO Designated Type Date’ Type . DIMII Coisey .,.. . 4 J . ,.w :i . . . • . . . . . . . • . ‘TI date Noventer *5,1990, iaIIess emerets . nolet ------- view; nor does it extend the n which a petition for ludiclal Vu .. .uwy be flied, or postpone the iluctivenesa of this rule. This action y not be challenged later in nceedings to enforce its requirements section 307(bJ(2fl. Nothing in this action shall be .mstrued as permitting, allowing, or Jablishlng a precedent lot any future • uquest lot a revision toasty SIP. Each uquest for revision to the SW shill be unsidered separately in light of specific .tchnloei, economIc. and envlrcn . 1 l idora and in relation to relevant .latutosy end regulatory requirements. SIP approvals under sectIon 110 and .ubchapler I. pail Dot the CAA do not •.reate any new requirements, but . mply approve requirements that th. State Ii already Imposing. Therefore. because d i. Federal SIP-approval does not Impose any new requirements. I ieitify that it does not have a significant Impact en mesh entities. Moreover, due to the nature of the Federal-Stats relationship under the CAA. preparation of a regulatory flexibility analysis would conatItut FedesaI Inquiry Into the economic ,eoeon.bI i& of State --a-’ - TheCAAfosbIdsEPAfrom Its actions concerning SIPs en ounds. Union Electric Co. v. U.S. - - - 427 U.S. 248. 236-08 (SQ. 1976); 42 U.S.C. section 7410(aK2). Thu Ohilce of Management and Budget has exempted this action boss review under executIve Order 12865. List of SiJsj..cte 1.40 aR Pasts 33 and I I Environmental protection. Air pollution control, Area designations, Uydrocaibons. Incorporation by reference, hitergovesnmental regulations. National perks, Reporting and recordkesping. ( ne, Volatile organic compounds, and Wilderness areas. se Feinua y 22,198 5. 1. The authority citation tot pest 32 iuntlnues to read as ksliowai *athgy 42 U.S.C. 74O1—7571 Ssthpal S$—T 2. SectIon 52.2275 in --- -t.-Ibl og peragragh kits follower 5 - - __ atIo Ormis (e) Approval—The Texas Natural Resource Conservation Commission ITNR ) submitted an ozone rudesignatlon request and maintenance plan on July 27, 1994. requestIng that the Victoria County ozone nonattainment area be redesignated to attainment for ozone. Both the redesignatloit request and maintenance plan were adopted by ThRCX In Commission Order No. 94-29 on Jul) ’ 27, 1994. The redeslgnatlon request and malnt tanr. plan meet di. redeslgnatlon requirements In eedlqn 107(d)(3)(E) oftb. Ad as am wiad in 1990. The redesignatlon meets the Federal requirements of section 182(a)(1) of the Clean Air Act us revision to di. Texas Ozone State ImplementatIon Plan for Victoria County. Th ‘A approved the request for redesignatlon to attainment with respect to e for Victoria Cmsn’y cn . May 8. 1995. PART S1—(AMINDEDI 1. The authority d -’4” . for pest SI continues to rued as folIow A.A..hy 42 U.S.C. 7401-1871e, 2. In SectIon 81.344, th, attainment. status designation table for usc ” , Is amended by revising the entry foe Victoria County und r “Designated Area” to seed as followai 981.344 Tame. . . . I VIt& .M May I, AIJ1.. ..i1. 1986. Vb co . . . at,. S S S S S . S • • S IPR I c. 85 . 4347 PIled 3-0-00 ; 6.45en11 ‘ e isa muse us m RP ts88anduI Approved end Promulgation 0$ Implementation Plans end Designation edAreem toe Air Quality Planning Puipoua Stats ol cItlgM Aomscy United States Environmental Protection Agency (USEPA). UemARY: On July 21. 1994 the USEPA published a proposal to approve the 1990 bass year em 4 ”n inv y. basic vehicle map w i— . maintenance (I/M) the redesignatien to ait ” a id associated section 1 “ —.--“ ‘ planfortbeozoneP1th sl? “ - Quality Standard (NAAQS) for the seven-county Detroit-Ann Arbor, Michigan area us State lnzplementatloui Plan (SIP) revisions. The 30day comment period concluded an August 22,1994. A total of 72 ment letters were received in response to the July 21, 1994 psopoaL 62 favorable. 9 adverse and lrequeettoextendthecomment period. i September 8. 1994. the USEPA pubhiahed a conedlon docoment end ISday extension oldie “ “ “ period ass result of the Inadvertent omission of a number of Ilimas burn the July 21, 1994 proposaL The reoimead comment — •‘ • om du4,d en September23, 1994. An addItional 25 . wnme g latle were received In isp’ %e to the September I, 1994. e’f. ” on of public ““ “ period regarding the July 21, 1904 piopoeal approval, 2 favorable, 22 - adverse and 1 InfcematlonaL This final rule .immartsss all lnc’vI ,nts and USEPA’s responses. and ftnallsss the approval oldie 1990 bee. year nIss1 Inventory, and basic UM, and the red.slgnatloa to at’ sI”r’t bu and associated section 175A malnten’ nr plan forths DelroIt.Ann _Azborases. - WECflVI DAT ! : This action will be effectIve April 6.1995. - *coonaaa!: Copies of the SIP revisions,. public c” ts and USEPA’s rasponeel are available for lnsp .’4” at the following address: (It Is . v ms 4I that you telephone Jaaluelhl. Nwla at (312) 886.4081 before yI.tHn 5 th Region S O co.) United States Environmental PrM A cy, Regions. Air and P ’.”on DIvision, 17 Weet Jyl wi Boulevard, mi t . FOR RIRflR IWO MA1I0N CCUR fl Jerspialin. Nwta, Regulation Develtipseent S” ’ ’ (AT-18fl. Air Tozica and Radiation Breach. Afraid Radistlon DIvision. United Slates Envir ”-p ”I Preladlon Agency. Rsglob 3,71 W.d Jasheon Boulevard, Icago. mboio 60604, Telephone Number (312) 888-6061. SW 1NBITART IIFO I*T1CIO L Back eead Information The l O9Obaee yeerem lssiou inventory, basic UM and red dp.don Ve ..eraI Register / Vol. 60, No . 44 F Tuesday,_March 7, 1995 / Rules and Regulations *cmm Final rule. 12459 TEXAS—OZONE Den- wa s — ode Ii ,- oneS AdminIatr 4oi (SAL • 40 R pasta 52 and 61 ar, uUir’ as fo liowai • . PART 82—IANOEDI ------- 12460 Federal Register F Vol. 60, No.44 I Tuesday, March 7, 199$ F Rules and Regulations request and maintenance plan discussed in this rule wets submitted on January 5,1993 (with revisions on November 15, 1993), November 15, 1994 and November 12. 1994. respectIvely, by the Michigan Department of Natural Resourcos (MDNR) for the DatMt.Ann Arbor moderate ozone nonattainment area. The Detroit-Ann Arbor area consists of Uvingaton, Macomb. Monroe, Oakland, SL Clair, Wssbtenew, and Wayne counties. On July 21. 1994, (59 FR 37190) the USEPA published a proposal to approve the 1990 bess year emission Inventory, basic UM. and redesignatlon request and assoirlited section 175A maintenance plan as revisions to the Michigan ozone SIP. On Septemberl. 1994 (59 FR 46479 and 48380). the USEPA published. c iaUlon notice and 15-day extension of the comment period as a resuk of the Inadvertent omission of. number of lines from Ike July 21. 1994 proposal. Adverse ----“e ’ts Ivere received regarding the proposed rule. The final rd. contained In this Federal lighter addrsasu the cu” .nts which were received during the public comment periods and announces USEPAs final action regarding the 1990 base year emission inventory, basic I/M, end redesignation and section I7SA maintenance plan for the Detroit-Ann Arbor area. A more detailed discussion In response to each comment is contained in the USEPA’. Technical Support Document (TSI)), dated February 3, 1995 from Jm ueline NwIa to the Docket, entitled “Response to Comments on the July 21. 1994 Proposal to Approve the 1990 Base Year Emission Inventory, Basic I/M. and Redesignatlon to Attainment for Ozone and Section USA Maintenance Plan for the Detroit- Ann.A,bse’ Ares.” which Is available from the RegIon 5 office listed above. J , P l4 r and USEPA Rasps.... and Final Rulemaking Table of Content. A. 1950 Bess Yesr Emission inventory L Public r ts and USEPARospoess II. Final Ru ’ng Action 1. lupactlon sad Maintenance L Public and USEPA Response IL Final Ru1— ”I’ Action CRadesignat lon L Public C.........te and USEPA Respoom II. Final Rulemaking Artiest A. 1990 Bose Year Emission Inventory L Public Comments and USEPA Responses The following £ __ . _ L _ mid responds to the . . . .ent . received regarding the 1990 bausyear Issics inventory. Comment Two i mmentoni note an army in the 1990 bess year emission inventory portion of the proposed action. One of these commentors notes that the total tons of volatile organic compounds (VOC) per summer weekday emitted from non-rued mobile sources is listed as 531.03 fot this souico category. The number submitted by MDNR is 1q67. USEPA Response The USEPA scknowhulg.. thur error. The VOC emissions per summer weekday from the non-rued mobile source category in the July 21. 1994. proposal (p. 37192) wIll be changed to reflect the number submitted by MDNR. 111.07, In addition, the total tone of VOC per summer weekday In the esme table will be changed to 971.92.11 ,, Daily V Emissions table is changed and appears as lollown IL Final III..i*frIftg Action The USEPA approves the iwi emission inventory SIP submitted to the USEPA far the Detroit-Ann Arbor ares as meeting the section 182(aXl) requirements of the Clean Al , Act (Ad) far .niI on invmttarlss... 8. InspectIon and j iu 5a 1. Public jUSEPA. Respt wa The following armmaiims end responds to the received regarding Inspection and Maintenance. Comment One —-- ar stmjssts that the U$E 5 A’s &— -t d.d.Jan should be explicitly i.4ftL qd upon the Nqubew.at for the MfrMg. . visual and-tampering check for .11 cars newer than 1975 wIth no Medicaid waiver, USEPA Response defer adoption and implasu.ulitlon of otherwise applicable requiremeete established In the originally promulgated IIM rule’. The State won required to submit and has submitted, esa nhingsacy m iure within tb. section 175A maintenance plan a commitment, legislative authority and an enforceable schedul, for adoption and Implementation of. basic JIM The cent1n y plan Is daaatbed In detail in a subvequent USEPA -.ve within this Vidaral Register. One commentor aata that the USEPA delay appruv.i of the’ redsaipatlon request until Michigan’s Joint Committe. on AdminIstratIve Rules completes Its review of the IIM leglal tlon and the USEPA confirns tIn the essential elements listed atSO FR ‘tlWiuhwa lpi.5 on Its.. . 5 t DAILY VOC EMissioNs FROM Au. SouRcEs—ToNs/SuPlIER WEEKDAY Owi. , .a.kh...tl m i s DS Am er P o * Ares smite I I a.Js.Ls I I 252Z I I .uuu., I ii4 I I eateslais I sm,r I eo’ vs I W.00 I I 5iu 1 ,.J .. an .L. .. i Totat en* slain VI -I The Ad — that nonettalnment areas 4. .IRod moderate adopt and _______ submit ass SIP revision provisions for Implementation of. basic JIM program. See sections 182(aX2RBJ(l) and (bX4). Since the Detroit-Ann Arbor aria was _____ cIaveifi.d as inodarata nonattalnment fm ___ ozone, the Ad requires an JiM program that meets the basic JIM performance standar The Detroit-Ann Arbor mi has Imp n ’ted an JIM progrim since ______________ 1910, as required by the pre-1990 Ad. The erie. therelbie. must provide for _________ upgrades to the arnent JIM program to ____ th. level ofabssicUMpro sm. Under - •• . .. , irivIsiomtothenatlonaIUMrul. imple sab UM 240 ens.. ., . (January 5.1993,80 FR 1735). however, _ fln __ y — Ata bupr ’ azess that have requested redaaignaticn minimum, the mefnl.i mu . plan should to attainment. anIare otherwise eligible Indude the BAR 90 “ 1t ona test with to obtain approval of the request, may ------- Federal Register I Vol. 80, No. 44 / Tuesday, March 7. 1995 / Rules and Regulations 12461 37193.44 regardIng basic IIM. upon which redesignatlon approval relies, are thu in place. USEPA Response The USEPA cannot delay approval of the redesignation. amos MichI8an hu submitted (he elements required and neI ry to establish basic l/M as a contingency measure In the section l iSA maintenance plan as provided for by th, revisions to the national TIM rule. As presented In the July 21, 1994 proposal, the Stale submittal contains the essential elam.nt .s Hated at 59 FR 37193—04. BasIc l/M, if Iniplemented as a t.oniingency measure, may be lisipluitwuled In Wayno. Oakland. and Macousb counlius and expaudusi to Washlenaw county. Comment ( te cemmector Is concernd that expanding upgraded 2 basic T/M to Wasluenaw, St. Clair, Uvingston and Monroe counties Is subject to potential legislatIve veto after the need fot i:nnthiguncy measures Is tti ered. The coinmentor stales that because Michigan’s legislature can unllslerally rescind the provisions to extend basic VM programs to Washtenaw, St. Clair, Livingston and Monroe countIes (1993 Mich. Pub. Ad 232 S e(2Xc) a (d)), Mkhigans provisions do not appear to meet even the relaxed standards proposed In the June 38,1994 revIsions to the national UM rule, 59 FR 33237, as being fully self-ImplementIng end enforceable under all umstancea. Therefore, Michigans basic l/M SIP I. not complete or approvable. Consequently, the Detroit-Ann Arbor smeis ot eligible fat redesipatlon. USEPA Response Susaions 1M2KcJ end (d) of Michigan’s Enrolled Hoime BIll 5016 only apply If lb. redesignatlon request is disapproved and basic J/M must be implemented in the entire 7-county Detroit-Ann Arbor area (Wayne, 0.1 6wid . , pA j ih ‘The Ad 114.11. I ! as tap ,Ih IJM mu. Senlea iaziiiiie. I C iiilmul SIP ,s,hlme to I wbk. bum bum. _____ punasal isdies iai uttba . wfth saul1a UIt 4UQi. . ihe wo i ml . m ,n aa OftaSAd eray n .e Ib.1 was nqulumd bribe Ad. as -- IsI S ??. et less . eWes . I stesths spbths la,iI . 4 .i..ai. ss%N5 U A ’ Ia wbd — ____ Aa.es - ‘---‘•- ‘ as L..tsa4 m.wn. abs jn as IbIs - ik btoetThs see nm .s . .. iseY Ad. 1to ibs .. sue as— -’-1 y e s p , n.t. su ito buak t IM , 11qiilr d& Washtenaw, St. Clair, Livingston. and Monroe counties). The 45-day notification period In section 8(2)(d) of Michigan Enrolled House 8tH 5016 Is only applicable. as described In section 8(1)(c), if the redsslgn.atioa Is not approved and the State must Implement basic TIM to meet the section 182(b) requirements. Clearly, the 45-day notification period Is not applicable for ImplementatIon of TIM us coathigency measure. It is Important to acknowledge that only notification to the l’gWstuze Is required., and that no alilrinatlvs action on the part of the legislature Is n .wry to allow the program to be implemented. In addition, States at any lime am, ebb to amend existing nile. andlor regulations for any requIred program is a matter of Stale law. This ability Is not a reason far disapproval of any State submittal because such unilateral State action would tiot affed the Federal anforcoeblllty of the version of the State law or regulation the USEPA had appro4 ed Into the SIP. The IIM legislation for lb. Detroit-Ann Arbor area satisfies the requirements of the revisions to the national T/M rule. Sections 8 (21(1) and (b) of the legislation apply If the area Is redesignated. and basic T/M Is Implemented us contingency measure or as a condition for approval of the redesignation request. In particular, section 8(2Xa) provides that basic JIM maybe Implemented as a contingency measure In Wayne, Oakland and Macomb county end also eiqmunded to Washtanaw county, If Together the basic TIM submittal and sedesignatlon request and the section 175A maintenance plan for the Detroit- Ann Arbcç ares (1) provIde for the adoption of implonusoting regulations for a basic JIM progrum. meeting the national basic TIM requirements withoat further teglslatlan, (2) provIde for the lmpluwi— tatlon of basic TIM upgrades as a m.4rlg .nsy measure in the main’ ”, plan upon rudesignatlon, (3) contaIn, as a con*”t ”cy meesure within the malnt n ca plan, a commitment by the Governor to adopt regulations to Implement TIM In response to a specified triggering event, and (4) contain a w 1tment ( ncl ”dIng an enforceable ii duio foe adaption and Impleme ntatIon of a basic JIM P w.m . as provided In the revisions to the natlonafllM rule. The sevislons to the JIM nile do not, however, require that the basic JIM SIP be fully self. impl’ttlng. Consequently. contrary to the c ”— ’toVs statement, the basic TIM SIP is complete and approvable and the Detroit-Ann Arbor area Is elIgible for redesignatlon. One comnmentor states that the USEPA cannot rodA1 g! the - Arbor son ______ T/M SIP on utlsfy the reu oftba$ A’* unlawful policy. ii p . 5ti .ler.&. cemmenlor u ies ibm since the legislature could at y L1 the legislative authority. the USEPA should require the State to submit adopted regulations with a basic JIM SiP. The co” ’emstor further argues that Michigan did not submit a suffidently specific amid enforceable schedule for adoption and Implementation of a basic J/M - program upon a specified triggering event. The commentqr also notes that If the Stats has not adopted the regulations nr uy to Implement the contingency measure, such measure wifi not correct any violation promptly as required by the Act and USEPA gut USEPA Response The “ tor states that the 45-day notice provided lath, legislation prior to Implementation of a required JIM program ensurea that the legislature em repeal the legislative authority babe is takes effect. This interprelatlon of Michigan’s Enrolled House 81115016 Is i ncorrect. The 45-day notification period in suction 8(2)(d) of Michigan Enrolled House Bill SOils, only applicable under the scenario described in section 8(2)(c). If the redesignatlon Is not approved end the State mud Implement basic JIM to med the sectIon 182(b) requIrements. Thus. as dlsc ’ ,d earlIer, the 45-day notification period Is not applicable for implementallo of J/M U i contingency. measure. The USEPA further responds that - Michigan has mtasd as pail .f the lISA malnt,.iw. plan en enkr ie schedule for adoption and Impl un’ntstlon of basic JIM ass ce1%tht 1uy mneesumu. SectIon 6.8.3 at the State’s submittal thet adoption and ImpI.l!lq,nf.tko ucheduhe for contingency measures would be with thee. specified in the Ad and any cenuspsmaing riguldiw end submitted as part of the ‘ i.’ I urban siruhed modeling UMM) ena The Wjr t . gr.licn rule provides the rel. ant adoption and mpI—’- ” t t ”e schedule.. lithe Governor diceme JIM to be Implemented as the contingency “e , under the schedule olth.IIM redeslgnatlon rule Michigan - Inemporated by reference, the State would need to adopt TIM within one year of the esiggar date. Michigan’s u ” ’ttal d.flnd lb. trigger date as the Comment ------- 12482 . Federal Register I Vol. 60 , No. 44 / Tuesday, March 7, 1995 / Rules and Regulations date that the State certifies to the USEPA that the sir quality date aro quality assured, which will be no later than 30 days after an ambient air quality violation is monitored. Pursuant to the l/M radealpatlon nile. the irigge: date Is the date no later than when the USEPA notifies the State of a violation. N longas the trigger dat.u defined by Michigan ocours prior to the date the USEPA notifies the State ala violation,. Michigan’s tlmeframe for ImplementIng I/Mesa contingency measure Is consistent with the 1/hf redesignatlon rule. Because it often takes several months forth. USEPA to obtain the data and confirm a violation. Ills unlikely that thetriggerdateas deflnedby Michigan will be lets, than that defined In the Uhf red’ gr’ lIon rule. However, If the USEPA does notify the State of a violation prior to the State certifying to the USEPA that the ambient air quality dat* assure a violation, then the trigger date will beth. date of the USEPA notification to lb. State. consistent with the 1/hf redesignatlon nile. The basic!! M program. If selected u a contingency measure, must iii Implemented within 24 months of the trigger date, or 12 months aftar the adoption of - Implementing regulations. This schedule is consistent with lb. I/hf redesignation rule, which Is the applicable regulation for purposes of establishing an adoption and ImplementatIon schedule. This schedule Is specific and enforceable amos It will be incorporated into the SIP as part of the section liSA maintenance plan. The sec i ui l7SALd) requirement For contingency provisions Is that they must promptly correct a violation of the NAAQS The USEPA believes that th. schedule provided for ImplementatIon of a basic Uhf program within the Detrolt .Ann Arbor area’s sdctlcn liSA maintenance plan Is sufficient to address this requirement in light of the logistica of adopting and Implementing a basic Uhf program. The commentor also Iiidim that the Michigan submittal iiet miIsfy the USEPA’s roqul ...uiant rsdfled and enforceable scheduW mIee It does not Indude a tlm.4E*:tsIsps necessary to t the required egUIIUOnS adopted. As din ii.ted above, because Michigan Incorporated byreference the timetable of the Uhf redesignatlon rule. adoption of Uhf regulations Is specified too wIthInouieysercI Ibetr1gger dat ,. lb only ether interim step e _ j , to get the requited regulations aA ag a4lsthep ropoealofdn* Afiboogh the Michigan 1 J _ -e..i did not spmify .dat. lot the proposal, the Stats’s commitment toe date for promulgation of the final rule implies that the draft regulations will be proposed on a date no later than that ne ry to provide for notice and comment and a hearing on the draft regulations. Because Michigan’s submittal specified a timetable to get the final regulations adopted, the Michigan submittal hu met the requirement to provide a specified and enforceable schedule. A commentor also suggested that a determination that actual emissions from mobile sources actually eiicoed those predicted In the emission Inventories should also be Included as a trIgg 1 ,rlng event. ThIs ii neither a re rpi lr mueetoftheActnorofUSEPA policy, although It has been suggested as a possible triggering event In guidance. and States are encouraged to use It. Co.. One commentor challenges the .dequ.cy of Michigan’s demonstration that Its UM program did not contribute to Southeest Mkblgan’s attainment, and urged remnaldsratlon of the proposed . 141 4 of the program after 1995. USSPA Rse pens. Michigan did not deim that the anrent Uhf p..grsm did not contributs to the trolt .Ann Arbor’s attainment, nor did It daim credit for the emission - redactions achieved as a result of the progress within the attainment deetcnstratlon. Furthermore, neither lb. Stats neg the USEPA has proposed or suemated that the current UM n - be ImInated after 1995. In fact, the Stat, must mutinue to implement Ite urent Vhf program as well as all other S W . .JiJ sesasuies that wuts contabmd in the SIP prior to the submittal of a complete redesignation request. The September Shapiro’ mw.ndurn reviews sad reinforce. the US ’A’s policy on SIP relaxations. pertiarlarly in the contest of re’Ig lcn. Thg memorandum nate. that the L A’s general policy Is that a e may not relax the adopted and Impissiurted SIP for an arm upon the ares’s redea lgnatlon to attainment unlam an appropriate demonstration,. besed.cm computer modeling, Is a , .4 by the USEPA. Existing control strategies mud continue to be imp1.m ted In order to maintain the sta d . Although section 175A recegeizos that SlPmaasuie. maybe moved to the contingency plan upon edesignitIan. such a SiP revision may - 1?. 1553 m.ma,udvm en IIkbisI H. u fthd SIP Re ufrumsut. f A, S thntitI inR.d&gna i lonlo Oman and Ceban “ .--—‘ NA 5es.ra N. . 1 5. lieS. be approved only if the State can adequately demonstrate that such action will not Interfer, with majnf n nr of the standard. A dem ..st, . .lL. . . fir area redesignated ts afl 1 _-i.t ozone would entail iL _ Ii _ l don attainment modeling 4--- on with the USEPA’, airrud 1 ’ 1 on Air Quality Models, shew that control measure Is not needed to maintain the ozone NAAQS. Mae, mu memorandum from Gerald A. Emlson, April 6, 1987, entitled Ozone Redesignatian Polky. - Comment One conimentor atetes that the USEPA’s policy of approving a basic 1! M SIP revision that does not indud, .dopte4 regulatIons Is unlawfuL US EPA Response The USEPA’s specific response to ibm. comments Is published in the USEPAs final rulemaking on the revisions to the national 1/hf rule. See January 51993.80 FR 1735. In that rulemaking, the commentor ale. submitted similar remarks and tire USEPA’s responses to those comments appear In the docket for that rulemaking. It Is ap,.- prlate for the USEPA torely on the final tIM rule revisions In taking today’s final action, and this rulemaking Is net the appropriate forum In whidi to challenge th. validity of the t/M rule revisions. U. Final Rul—afrngAdl o n The USEPA approves the basic 1/hf piugreui submitted to the USEPA for the bstiolt-Ann Arbor area as meeting the revised national tIM rule (January 5. 1993,80 FR 1733) for areas redesignated from nonattslnment to attainment. consequently satisfying the requirements of section 182(eX2IWXI) of the Act. C R.deslgnofic . L Public Comments and USEPA The following discussion sumanarisse and responds to the comments received regarding the fedeslgnatlon of the roIt.Ann Arbor ares to attainment for On. camseentor notes that if an expeditIous review end approval cf MDNR’s request had orxmned prior to the 1994 ozone season, then any i . violation thoreofte, would have prompted the Implementation of. coat innency measure from Ike maintenance plan to . .. . . . t the air quality problem. ------- Federal Regtstar / Vol.60, No. 44 I Tuesday, March 7, 1995/ Rules and RegulatiOnS 12463 t Response Management and Budget (0MB). The revisions classified all rodesignation. except those for total suspended particulate, as Table 2 actions. These acI ons require the Regional Administrator’s decisions and concurren . but provide a opportunity for Headquarters review befome concurrence by the Regional Admlnistretor. The 40-day Headquarters review Is tn$en led to fwictlon isa check for national consistency and hi USEPA believes that this system provides adequate assurances of con . Act authorizes the USEPA up to ia months from submittal to act one State’s request to redesignate. See S MtII)Il iU7(døJHI)). l lw pr(Mu for radesignating areas to attainment lea complex one which Is designed not only to identify atom which currently have clean air, but also to assure that clean slrwil lbema lntalnedlflthefUtUll. There are many statutory requirements which mus be satisfied before the redesignation request con be processed. including review and approval of ali revisions to the SIP for programs whoee deadlines came due prior to submittal of Comment the redesignatlmt request to the USEPA. See September r L gd ‘memorandum and September Shapiro. Before the USEPA could ftnally redesignate the ares 10 at’ 4 ”’t. all flIn tnIng items had to be IInaUy approved. incIudIng (1) the State regulations for Reasonable _________ Available Control Technology (RACY) for VOC,’ (2) lb. section 182(0 oxIdes of nitrogen (NO 5 ) RACY exemption petition. and 3) revisi” to the national motor vebids J/M ntIs . The USEPA could oat redesignate the Detroit-Ann Arbor area until these actions were hand. Bensuss all these actions were heed, the Federal action oath. nignation con be completed. - -- .Liermore. if a violation bad ouxurred during the pendency of the IJSEPA’s review of the osoq. redesignatlon request, the USfl’A could not approve ___ the request since the area would not have remained hi attainment. Ma consequence. further control meaaures would have been required under the Act. In any case, the commentor’s concern Is moot. since no violatIons of the ozone NAAQS oonured during the 1994 ozone mason. Comment One m m tor su ests that redesignation request. should be Table ___ I dodslons to insure naiIo iI ‘consistency. (ISEPA Respome An October 4,1993 , fl itt hdIIkU1 from Michael ILShapiro. AdleR Assistant Admuinistratur fur Mr and Badialiots. revised t i n, SIP tables sssuii lly putiliahud in thu Yede,’al KrnsJer no january 19. WN9 ( i4 Mt 2214). I1 tI Ifr2& mehini Ilauiiz tulilus _____________ ( 1l uf __l .’_,. -•. 1 - —- . _ al’ — - . • V(ic iscr e,r’ ‘• Ra. Ib&I 5 giui5 .?u. 7. t I its l J S .r (3iV liZU ‘ied msxi On. commestor note. that the - USEPA’s proposed redeeIgt’ Ion relies on data from 1993 which was not included In Michigan’s November12. 1993 request, and was not subject to public c”a ” Further, there lain lnconi’ e’ y between the years álboed by Michigan isa Lisle for redeelgoatI ’ 1990-92 and the years selected by the USEPA as the basis for considering and actually proposing the redesignatlon (1991—1993). Therefore, Michigan’s redeslgnetlon request was not “complete” on November 12,1993. USEPA Response As stated lathe proposed rulemaking, Michigan submitted ambient data for 1990-1992 In Its November 12,1993 submission, but did not submit 1993 ov ’ ’ data because it was not completely quality-assured at the time the request was being developed. Under the guidanceolthe USEPA. the State submitted the 3 most recent consecutive years of complete air monitoring data (1990-1992). vçfth the understanding that shortly thereafter, the 1993 amee seeeo ’ data would be available In A S for di. USEPA to review. The 1993 ozone data was considered by the • USEPA and was siablect to public comment isa result of the July 21, 1994 propord rule k’ng, Regardless of whIch years of data are used. 1990-1992 or 1901—1993. MIchigan has demon’tated attainment of the ore—i NAAQS in the DetroIt-Ann Arbor ares by providing monitoring date with no • violations. Completwuns of alP submittal Is based on the criteria establisbod In 41) CFR pert 51, appendIx V. thing thins, the IJ.SEPA found the Nuvuiiibut U, 111113 eubmnlttal coinpkmle in a loiter to Michigan dated january 7, 1994. Th. use of 1993 omne season data that was not completely quality-assured at the timeoltbe November 12, 1993 submission does not alter the conclusion that the submission, which the USEM found complete was based on 3 consecutive years of air monitoring data. One commentator 11h USEPA’s notice of ps’ --- of the iidesignatlan isa pu d haste since ‘the action we. and ailed togive. ;— frd pLans for verification d attainment. The action skips portions paragraph (b) Demonstration of MaInt ”c and paragraph (C) Verification of Continued Attalnni t an pages 37198—37199. In addition, three paragraphs on page 37198 duplicate teat on page 37197. USSPA Response The omission of paragraph (B) sad (Cl and duplicated text is acknowie4’i- Unfortunately. the Office of Fóderal Pag$.’.’ . inadvertently excluded a number of lines from these two ‘ oti ’ of the on. For this the “‘‘ent period on the July 21, 1994. rdeslgnatloa was reopened on September 8, 1994. (59 FR 46479 and 46380) for 15 days In order to provide the public an opportunity to appropriately cr-n’i’t on It. One omunentor requested addItI” 1 time for reviewing and providing comments on h. proposed redsslgnatlon due to Insufficient tim. to commelit on suds a complex ., ipoe” 1 USEPA Response As dlscuued above, the —“eat period was extended for the ,sdesignation and section 175* malntee-’c. plan in order to give the public sufficient thee to review and to submit co’’’ents . Th. correction dnaim ” and of public comment period ac ’ ’ were published on September 8,1994. The USEPA dom not believe that any additional mi’’ 1 of time is ne - ’y as en L One a tor requ .d a flumal USEPA public heering on Us. redesignatlon. USEPA Response Under the Ad, States can submit proposed imptamentation plans (end revisions) lathe USEPA for approval only after they have afforded interested parties “uns hLe notice and public heatlng • .“ See Section 110(aK1) and (o)(2). The Slate held a public hearing on the proposed redesignatioa to attainment for ‘ ‘n . and revislos to Comment Comment ------- 12484 Federal Register !Vol. Go, No. 44 1 Tuesday , March 7, 1995 I Rules end Regulations the Michigan SIP, I.e., maintenance plan. on October 22.1993. There are no provisions, however , requiring the USEPA to hold Its own bearings. The USEPA Is required top the opportunity for public mimsnt. The USEPA announced opportunities on July 21, 1994 and September 8, 1994 for the public to submit comments. The USEPA believes those opportunities represents more than simple opportunity for public Input end comment on this redesignation. Comment One commentor states that the air quality In the area has been poor and hasgcttenwvors.lñ the past loyears. Offensive odors use apparent when It is slightly overcast or during the night when a local hidnerator Is burning. US EPA Respo This redeslgnatfon pertains to soLely. to ozone, and would not affect offensive odors from an incinerator, regardless of whether these odors are evident during slightly overcast skies or at night. Redesignatlug the ares to attainment for ozone would neither solve nor. • contrfbutetotheprcbLem.The - Indna..t mud continue to operate existing control equipment In • compliance with Its own applicable permits nile. and regulations. Ambient monitoring data from 1990 through 1994 demonstrates that the ares is attaining the ozone NAAQS. This evidence, that the air quality has impwved at least since the period 1987—1989, the years of alrqua lltydata which were used to design. . the ares nouaif Inment for Comm A nJ . , . of cornmentors urge th. USEPA to reconsider the NAAQS for çound level edouie . One com nentar note. that Canada’s w standard’ Is 82 parts per billion (ppb) while the United States’ ( U.&) 1.135 p . 5 This disparity in limits .-4Iq p ie be debated In the U.S. mmi h the American Lui Aaod jiid others , who contend that the !Z tI I Liwui Its limit toS2 ppb.errhsslth besed AnCIh mentor states that the current NAAQS Is not p.. .t tIve of the public health, end should be made more stringent to ply wlih Cm e,sl’.,aI mandate 11 Jiiir wttli an ak 1 lhg 11 olesfety.’ Th b J L weus - ____ b lIri. i.L tin Ou ,w bIiWSSII the m4UJ - E t USEPA sipoom The USEPA is currently In the p as of reevaluating the ozone NAAQS and. expects to makes final decision In mid- 1997. UntIl any change Is made, however, the USEPA Is bound to Implement the provisions of the Ad as they relate to the current standard, including those relating to designations and redesignatlon. Comment One menter notes that MDNR has taken the posilion that the measured concentration must exceed 125 ppb b.& , . a legally actionable exceedano, that contributes toa3 year running on the number of days with exceedances Is triggered. Ass result. MONR has not included as excursions days with maximum numbers that actually do exceed the published sta, :.ard of 012 ppm. USEPA Response Published guI I vve (Guideline for the interpretation of Ozone Air Quality Standards, January 1Q79. EPA-43W4- 79-4)03), whldi Is part of iho narwie standard by reference In 40 CFRpart 50 . appendixiL notes that the stated level of the sti 1 ndard Is determined by defining the number of significant figures to be used in comparison with the standard. For example, a standard level of 0.12 ppm means that measurements are to be rounded to two decimal places (0.005 rounds up), end therefdre. 0.125 ppm lathe smallest three ’decfmal concentration value hi of the level of the standard. Therefore, MDNR Is following USEPA national gial 4 D n , Comment The commentar objects to the USEPA’s propo.ed disapproval of the reduelgnatlon request lie monitored violation of the ozone NAAQS occrus prior to final USEPA action on the redeelguatlon. The commentor notes further that since the ares has machad attainment of the NAAQS and has requested redesignatlon, a requ1..uil i .t to p contingency measures to co. ..U the problem would be sound policy In the event of a violation during 1994. USEPA Response Section l0i(dK3XE) of the Ad establishes five criteria which must be satisfied In order for the USEPA to redesignate an area from nonattalnmsnt to atI In.enL One of these criteria is that the Administrator determIne that the ares has attained the NAAQS. Sea section 107(dX3flEXi). This requirement dearly prohibits the AdmInIstrator from mdaslgnatlng areas that have not attained the NAAQS. Ifs violation had occurred prior to the USEPA’s final action, the I ioi A - would ne L hee. a atIel. .. st and the t w A r. .L1 er* redesignets the to - L Fwtherme, only. Real rulemaking action can J — 0 . . s designation under 40 CFR pmt SI. 21.1994 proposal. the ama must continue to meet this criterion until final rulemaking is published. Ass • musuh. the USEPA must consider air quality data that is collected until the date of final rulemaking and revision of the area’s nonatlalnmanl status under 40 CFR part 81. hi addition, the USEPA’s Septerehet Calc.gnl memorandum, page 5, dates that Regions should advise States of the practical planning consequences If the USEPA disapproves the redeslgnation request or If the request is invalidated because of violations recorded during USEPA’s review. This policy has been followed In dlsaypwvlng the Richmond, Virginia redeidgnation, which was disappruvarl thin In vkdalhma nI lix , ozone NAAQS occurring prior to final udlon on a proposed approval of the redeeignatlon (May 3. 1994.59 FR 22757). With respect es requIrement to Implement contingency measures In the event of a violation prior to final approval of a redeslgnatlon. the USDA notes that the Detroit-Ann Arbor area, like any other nonattalnment iree, Is subject to the contingency measure requirements of section 172(cX9l until the ares is redesignated to afta lu ... ,rd. In any case, the conmientor’s concern Is moot, since no violations of the NAAQS .wi4 during the 1994 ozone Several commeutors request t the Detroit-Ann Arbor area be denied red.algnallon to attainment until It 15 clearly shown, using 1994 data, that the ares is in attainment. Other commentors noted that although the Detroit-Arm Arbor ares experienced only one excaadance from 1991 to 1993 or 1990 to 1992. It experienced it lead tine. — 4 exceedances In 1994 amiss Cunmentors provided specific monitored Ow”I values . JJ at DetioIt.Ann Arbor area monitors during the 1994 ozone season . The following aqna cnn’t,.t lons from ruhtAUfl Arbor area monitors were provIded: 133 ppb at the Algonac monItor, 142 ppb at the New Haven monItor, 145 ppb at the Warren monItor. 178 ppb at the Port Huron monitor and 127 ppb at the Onk Park monitor. -. I ------- - J Federal Register / Vol. 60, Nc. 44 / Tuesday._March 7,1995 F Rules and Regulations 12465 UWA Response As discussed above, the USEPA could not approve the redesignation ifs violation oczurred during the USEPA’S review of the request. Consequently. while the July 21. 1994 actIon proposed to approve the redeslgnatlon. it also proposed. in the alternative, to disapprove the redesignation If violations of the ozone NA.AQS occur before the USEPA took final action on the redoelgnatlon. TItle 40 CFR part 50.9 establIshes the o e NAAQS, measured according to appendiz D. as 0.12 ppm (23$ miangrams per cubIc meter (ug/m3)). The standard Is atialned when the .xpuiied number of days per calendar y i r will, iui.xuiiurn lsuurty avuraiju osumnnl rations above 0.12 ppm 1233 ugl - su3) Is equal to or less than 1 an determined by 40 CFR part 50 appendIx I I. Further discussion of these procxdiuea and * i ated examples are con1 h1ed in th, document Guideline for interpretation of Ozone Air Quality Standards, January 1979. EPA-450/4- 79-003. Simply, the number of e,caedanms at a monitoring sits would be recorded for seth calender year and than avenged over the past 3 calendar years to determine If this avenge Is less than or equal to 1. The net result Is that each monitor In an area Is allowed to record 3.0 expected excoedancas Ins 3 year period. More than 3.0 expected excee . .i In a 3-year period would constitute a violation of the ozone NAAQS. As explained In the July 21, 1994 proposed rulemakIng (59 FR 37190), the Detroit-Ann Arbor area has attained the axons NAAQS during the 1990-4992 and 1991—1993 periods. Th. 1994 ‘e .on has concluded and while ther, have been some recorded onene exonedancos In the Detroit-Arm Arbor ares, they do not (In considentlon wIth 1992 and 19 1 data) constitutes violation of the ‘ standard. Consequently, the Detrolt.Ann Arbor ares continues to attain the o ”e standsra at this ftm ThUSEPA has considered all sir 111y ista collected prior to final rvL. I1 on the redesignatmon rrrls ! Comment Oze cammentor questions whether ectual ettsIn nt and maintenanne of the —‘ “.-d wes ec 4 and suggests that paper demanstretleuis of attainment and . i i t nse net be given wcl d in — l Lq whoa coiqmsstts ’ - 1 edesissairqua4ky numiaming d elh irnbmlth d.,r .w.i.. or data thetis margInally so. USIPA Response The USEPA notes that It has not given “paper” (or more properly, analytical) demonstrations of attainment more weight than ambient monitoring data. As discussed above, the ambient air quality monitoring data foi the Detroit. Ann Arbor ares demonstrates attainment of the ozone NAAQS over the time periods of 1990-1992.1991— 1993, and 1992—1994. Fwibermoie, r o t1nued of the ____ NAAQ$ will be determined by continued ambient monitoring. Comment - Oze commentor esierted that the USEPA cannot redesignate the Detroit. Ann Arbor area because the USEPA must determine the relevant applicable requirements at the Urns of approval of an area’s redesignation request and the Stats must tisfy them. According to the “— ‘“tar, section I7SA(c) otths Act requires that all requirements of subpart D remain in form until en eras is redesignated. The Immentor argued that the USEPA’. intespretalion of section 107(dX3)(E), pursuant to which. the USEPA determines whether an ares seeking vedesignation has mat tfte Ad requirements applicable prior to or at the time of the submla,li ala redesigaa*lon request, Is Inconsistent with section 175A(c). Specifically, the commentor argued that the Act prohibits the redsslgnatlon of the Detroit-Ann Arbor ama bemuse the has not submitted by November 13. 1993, an approvable SIP revision - providing far 15 percant VOC reductions, oar satisfied th. basic VM and Nqw Source Review (NSR) reqvlr4menta that came due prior to the e”bmIJ’ on of the g aiim request. Moreover, the dalmed that the USEPA’a interpretation encouras Stains to delay implementation of the Ad since delay In Implementing requirements that corns due alter the pit i1 L 00 of a rednelg,i,*lnn requ would not affect the approvability of the requeet. USEPA Response The USEPA has lntarp ..t.d t — 107(dfl3ME) to mean that the section 110 and part D provisions that ate requlild to be fUlly approved In order for a redesignatlan to be approved are those which cam. due prior to or at the time of th, submittal of a complete redesignatlon request At the some time 1 bowevs,, the USEPA has maintained that States continu, to be statutorily obligated to meet any SIP requirements that come due alter the . n)1n . ..IOn of the redeslgnation request before the USEPA takes final action to redesignate an area. As a consequence, the USEPA has also followed a policy of inerirg fin dfo to e la Stats that bm . 1. _ .Ii. _ I ! ‘..‘—“Ji.tlen rest foib tommply hs guhedttal . -q ’d. that due after the “ ala rr’—” .’. nn requ See Sw?— - and - C.lnegnI ’ memorandums, September Shapiro memorandum, and the memorandum dated J Inti .y 7.1994, horn John S. Salts te Raglonal Air Division Directors, entitled “Procedures for SIP Elements Due Navernbst 15, 1993.’ The USEPA believes that Its approach Is both reasonable and harmonizes the pertinent provisions of the Act In a workable “er that Is consistent with the language sad Intent of the Ad. Moreover, the USEPA believe. that the interpretation advocated by the ‘ ‘ or would be unwmk4,le and make it virtually Impassible for areas to be reim.lgnired to attainment. The pertinent provisions of the Ad ire as follows. Section 107(dM3)(EXv) of the Act provides that. sate must have met “all requirements applicable to the ares undersection IlOand pert D’ In order to he redesignated. Furthes more, section 107(d)(3XEX 1I) provides that the USEPA must have folly approved the SIP foe the area seeking redeslgnatioo. Finally. se’ Ioa 17SA1c3 provides that the requirements of part D fminaln In hum and effect for an until such thneas it is ______ The USEPA eves that It Is bosh logical and raw ’.bls ta Interpret - section 107(dJ(3)(EXiI) end (,) so that, far purposes of the sv h.IIi ala redeslgnatlon request, the only requirements that are “bpp l’mhle” and fotwhlth the SIP muatbe IWly approved before the U A mq approve the redesfgnatlon request are ihoeethatcameduepr lortoorat the time of the subunIL ala plste redi _ lg iiHon requeat . ______ The met r— that lie rem hla to determine the appeseubiluty ala redseignatlan request on tim basis of complIance with only Ad requfremente ap licsbleprlcrtocratthetlmeefthe iv . ‘oaofth.reques1IsthatboIding the State toe continuing obligation to comply with aubesquent requirements .Ing due after the ‘“oIthe request for purposes of the redeelgnatlon would make It Impassible In many Instances far thIUSEPA to sot on redesignatlon requeats In aomrdance with the 18-month dn mandated 7I _ra.1e53 — --bon âa dti.d S1PA LJmi a 2 v” AfrA D- — ------- 12480 Federal Register! Vol. 60, No. 44 I Tuesday, March 7, 1995! Rules end Regulations by Congress far such actions In section re iuirementa remains In effect until the iol(dX3XC). This is because seth Ad USEPa’i taks. final action to redesignate requirement coming due during the en ares to attainment. Thus. lbs pendency of the USDA ’s review of. USEPA’S policy is to issue findings of redesignation request carries with it a failure to submit if a Stats falls to necessáy implication that the USEPA submit aSIP revision to fulfill such a must also Fully approve the SIP requirement, thereby triggering a cloth submluion made to satisfy that that will result in the Imposition of requirements in order for the area to be mandatory sanctions, under section 179 redesignated. Otherwise, the area would of the Ad. IS months after the Issuance fail to satisfy the rad 4grtitlon of the finding unless the USEPA requirement of section 107(dR3)(EXii) to approves the redesignatlon request prior have a fully..pproved SIP. As Congru. . to the expiration of th. sanctions clock. limited the USEPA to en il-month Thus, If. State chooses not to submit period to take final action on complete a complete and approvabie SIP revision tedesignadon requests, Congress could to comply with a requirement that not have intended that, for those . comes due after the submission of a “ requests to be approved. Status make redealguatlon request, it runs the rIsk ft additional SIP submissions that w ild will be sanctioned in the event that the require the U PA to undertake ac’ n USDA does not approve the that would ne rily delay actior. on redesignetion request. For example, in the redulgnatlasr request beyond the 18- the case of the Detioft .Ann Arbor ares. month time frame. (Tb. delay would on January 21, 1994, the USEPA started oncur due to the time needed lot the the Il-month sanctions clock for the 15 USDA to take action regarding the parc.. .t reduction plan ,equlre4by determinations us to whether to find section 162(bMl) to be subrnltte by those SiP sub’’cos complete and to November 15, 1993 after the State had appvv or dlsepprove them. Cancels submitted Its complete redesignatlon aaxwd.d the USEPA up to IS months request for the Detroit-Ann Arbor ares. from the submission ole SIP revision to by finding the ares’s 15 pa . . .t plan take such action. S .. section 110(k).) incomplete. lIthe USEPA were not now Another reason that the USEPA’s approving the redesignatlon request. the interpretation is reasonable is that th. sanctions clock would continu. to run fundamental premise for a request to and the Stats would continue to be • redesignate. nouzattainment ares to subject to the risk that sanctions would attainment is that the area has attained be imposed. Notably, a Stat, seeking th. relevant NM Thus, an area for redeslgnation for an ares is in the same which a uedealgeati on request has been position sat. the initiation of wictlons submitted should hive already attained dockS for the failure to make a - the NAAQS sea result of.tlt.. . , submittal as any other State, Thus, If satisfaction of Ad requirements that . Michigan had not submitted a cams due prIor to th. submission of tb. r.designatlou request for the Detroit- request, and it Is reasonabl . to view the Ann Arbor area and nevertheless had • only requirements applicable for failed to submit a complete 15 pa. ..t purpems of evaluating the r.de-Ign.tlcn plan by November *5.1993. It would — request as those that had aheady come also have been subject to a finding .1 due since them requirements were the failure to subunit and the consequent ones that pwuiisbly led to at’ 1 ’t commencement of a sanctions dock. of the NAAQS—whldu Is the primary Pc i this reason , the U A dlia ea purpose of tide I of ibs Ad. To iiqulrs with the comment’s cc tendon that the that a State continue to ssiid USEPA’s inimpretatlon r.g.rding the requirements corning4us deitog the requirements applicable for of pendency of the cia evaluating redesignatlon requests complete in ord encoureges States to delay to have the redesi implementation of the Ad. States would require tim SW th more than seeking redesignatlon for areas ate was needed to attain the IfMZ . subject to sanctions for failure to . ikmN The USEPA’a interpretation by no SW revisions in auxordance wIth lb. means Ihith .5 55 the obligation of Act’s requirements in the same way that Stats. to comply with requirements net seeking mdeslgnatlon are. To coming due after the submission of a the extent that the USEPA’s us r Ian - . Rather, it simply Interpretation reaults in Slates not tbm eras. y be redesignated adopting measures they might otheuwiss • t .o..gb the Stat. may not have have hod to. such a result isa cesapifad w them aquliemonta. As consequence of the only workable I A i1cym.& cI s ar .un interpretation of the provisions of - ----— - w the requIrements of section *07 concerning applicable fon 173A(c), the statutory obligation requirements and that result does not of the States to fulfill thou. justify rejecting that Interpretation. This is particularly so since the only aries that benefit from this interpretation are those that have attaIned th. ambient air quality standsids and bee. demonstreted that they wifi conti to maintain thu i hi Sb, Istugs. Thus, the U A L . it may approve the ioil -Arm Arbor redesignat ion request odi. IIhstmvflng the lack of a fully approved 15 percunt plan. Such action is consistent with the USEPA’s national policy and is pennissible under the Ad. (The colnmentor’s content innq regarding the liesic t/M p 1n .ini N.SI( nivinw pruui m are dealt with as pod of the leaponses to other comments en those programs elsewhere in this document.) Ondcommentot stated that the requuemant of both general and transportation conformity isaa itepoftant element of Michigan’s attainment SIP and that the USEPA’s notice has not addressed conformity In the context of the redesignation. Adverse consequences will stem hem failure to continue to require conformity analyses and measures. Another commentor slates that redesigeatlon does not excuse the State from submitting a conformity SIP revision the Detroit-Ann Arbor ares or from including a motor vehide emission L4 6 a 1 for NOn In the ares’s maintenance plan. The omimentor further states that the NOx waiver aveileble under section 182ffl, has no conIlcuIon with the conformity requirements far tianspoutatlan plans and programs contained in section 170(c)(2)(A) awl 176(cX1 BL USEPA Response The July 21,1994 pwyO..l (51 FR 37190) did state thet dis November 24, 1993 (39 PR 62188) transpoitsilour and November 30, 1993 (39 PP. 93214) general conformity rules require States to adapt trunspoutadon and general conformity provisions in th. SI for ar ies designated nanattalrnn,.t or subject to a maintenance plan approved under section 175A of lbs Ad. The . w u. il fwther explained that. although conformity Is epplicable In these areas, since the deedline for pihaiiftaj had not come due for these rules at the time Michigan submitted a r Ignation request. the approval of the uedeuuigaation is oct conhingent on thee. submittal, to comply with section 107(dX3j (EXv). The Delroit•Ann Arbor lies must comply with the section 116 conformity regulations as required by the conformity n ile, and the Conformity General Preamble (June 17. 1994.59 FR ------- Federal Regletir F vni . eo, No. 44 / Tuesday. March 7. 1995 1 Rules and Reótilaüois 12407 31238)’. Ancordlcg to these rules, conformity appLies to nonattainment sreu as well as maintenance areas. Once redesignated. the Detroit-Ann Arbor area will be a maintenance area which will be required to conduct erniselon analyses to determine that the VOC and PlO x emisetons remain below the motor vehicle emission hudget established in the maintenance pun. Trensposla’Io . and general corJwmnlty apply to maintenance areas and therefore, the Detroit-Ann Arbor ares must comply with these rules. The Coefonnity General Preamble to lb. amformity regulations further clarifies this ianae pertlcularlyss it pertains to areas requesting and obtaining a section 182(1) P10 1 exemption. According to the conformity rules and preamble, the Detroit-Ann Arbor areas conformity i will be to remain within lb. VOC and NO 1 budgets established in the section 175A maintenance plan. Michigan has established a motor vehicle emission budget br NO x In the areas maintenance plan. The “ “ “tor’s suggestion that th. linn182jj) exemption has no connection to the conformity requirements for transportation plans and programs contained in section 178(cXZUA) and 178(c)(1 1111) was made In response to the August 10. 1994 proposal to approvó the section 152(0. NOx exemption fur the Detroit-Ann Arbor ares. The US PA’s response is, therefore, articulated in the final rulemaking approving the section 182(0. NO 1 exemption petition forth. Detroit. Ann Arbor ares published elsewhere In this Fedemi Register. One ‘ tor states that areas are ‘requesting exemptions from the NO x control mesnues based on incomplete modeling studies (L i. Lake Michigan and Southeast Michigan Ozone Stttdles) Which do not acourate y predict the relative contribution of mobil. source eml i’ bemuse t mobile source emissions Invent ___ las its cootributio to - ---M “ uc ’ 1 on . Furthermore. givssth gacss1alnty of mobile source NO x rIbuticns to uzisw arid the Inauxuecy uf mobile source Inventories, it is inappropriate to remove from the SIP any NO1 or VOC conformity analysis. ( ‘SarA — E 4w km 182(1) NO — -ispWartis. in. —‘ — — *X4 112(fl(3) of the mdtk L Si. 1104. alv Act. Michigan submitted such an exemption request on November 12.. 1993 for the Detroit-Ann Arbor ares based on 3 consecutive years of clean air quality monitoring data, not on a modeling study or analysis, In addition. approval of an exemption based on monitoring data will be con’Ing.nt on. the area’s maintenance of th. ozone NAAQS. Asnoted previously, a section 18210 NO* exemption will not exempt az. 5 from compll*nc. with the conformity regulations. The USEPA refors the ri .imes(oI to the final nrhi .n Mng approving the suction 182(0 NO 1 .xemption petition for the Detroit- Ann Arbor area published elsewhere In this Federal Register. ‘Comment On. coinmentor notes that there Ian. re nabla or adequate basis for aih’n” ’Ing Michigan’s .idstlng NSA progrem’from the current SIP. Another commentor states that the USEPA cannot redesignate the Detroit-Ann Arbor area because Michigan has not met the NSA requirements under section 182(bRS). USEPA Resporme The USEPA believes that the Detroit- Ann Arbor area may be redesignated to attainment notwithstanding the lack of a fully..pproved NSR program meeting the requirements of the 1990 Ad amendments and the of such an NSR program from the contingency plan. This view, whiles departur, from pass policy, has been set forth by the. USEPA as Its new policy in a memorandum from Mary Nichols, ‘t Adminlstratar for Mr and _____ dated ober 14,1994, entitled Part D New Source Review (part D NSR) Requirements for Areas Requesting R.deslgnatiaa to Attainment. The USEPA believes that its decision not to insist one fully-epprover NSR progress ass prerequisite to redasignallon is Justifiabl, as an exercise of the A sncy’s general authority to establish de . nInh .rtis exceptions to statutory requirements. See Alabama ?Inver Co. w.Cretis, 638 P.2d 323,380-81 (D.C. CIt. 1979). Under Alabama s.w Co.v. ife , the USEPA baa th. authority to establish de minimis exception. to atatutoly requirements whet, the application of th . statutory requirements would be of trivial or no value environmentally. hi thi, context, lb. issue presented is wk L .t the USEPA has the authority to establish an exception to the requirements at section lO7(dX3XE) that the USEPA have Mly.approved a SIP meeting all of the requirements applicable to the area under sectIon 110 and past D of title I ofib. Act. Plainly. ‘the NSRpr.vislmaat”— ii•end part Daze requk i tbm submission .f the sset ___ 107(dII3UE) would seem to require that the Stat, have submitted and the USEPA hive fully.syy.wud a part D NSR program meeting th. requirements of the Act before the areas could be to uttainmeaL ’ UndO, the USEPA’s di sulnimis authority, however. it may establish an exception to an otherwise plain statutory requlr ” if Its fulfillment • wou ldbeofl lidsoruouevtronmental value. In this context. it ii Iw wy to determine what would be achieved by Insisting that ther. be a fully..pproved part D NSR program in place prim ’ to the redesignatton of the DetruLt-Ann Arbor’ area. For the following the USEPA believes that requiring the adoption and Mi-approval ala part 0 NSA program prior to r ”en would not beof4nlflcsr snvirm ntaI value in this case Michigan has tLtmn. , ,st.d that maInt .an& of the — - - NAAQ$ will occur even if the emission rednctlol expected to result from th. part 0 NSA program do not oamr. The proJectIons made by Mt th1gr to demonstrate of the NAAQS considered growth in point source ‘ 1 ons (along with growth other source categories) and were premised on the assumption that the Prevention of Significant Deterioration (PSI)) program, rather than the part 0 NSouldbsinefhct,durthgth. - meIn psrioL Under N significant — emucs growth would not o MIthIgan assumed that NSA would not apply after wi..’gn”lon to afi 1n , and thanfam. assumed source growth fedora I —sd on proJected growth In the economy and in the ares’s population. (Itshouldbenotedthattbegvowth factors assumed may be oewesdmates under PSft which would re uIn source uwth through the application .1 beet availabl, control t + ’ques. ) Thus, contrary to lb. assertion .1 the commentor MlçItfg.n has dr” -’4reted that there Is noneed toretain thepart 0 NSA as an operative program in the SIP during the maintenance period In order to provide for continued maintenance of the NAA S. (If this demonstration had not been made, NSA would have had to have been retained in the SIP as an operative program since it would have been needed to maintain the o standart) sT ensdosandCs.wsionIarmMpmi ------- 12488 Federal Register / VoL 60, No. 44 I Tuesday, March 7, 1995 / Rules end Regulations The other purpose that requiring the full.sppronl of. pert D NSR program might serve would be to ensure that NSR would become a contingency provision In the malntenanou plan required for these areas by radians 107(dX3XEXIv) and 175A(d). T provisIons require that, for so area to be redesignated to attainment, it must receive full approval of. malntenniue plan riwiI Inhig TM suth contingency provisions seth. MmI .ii tratcr deems iw — to aaio that the State will promptly w . . J any violation of the standard which ow.rs alter the redeslgnatlen of the ar as an - attainment area. Such provisions shall Includes requirement that the Stat, will Implement all mmares with reaped to the control of the sir pollutant which wem contained in the SIP for the area before mdeslgnatlon of the area as an a’° ’ t area.” Based on this kngnig., it is apparent that whether an ap NSR prc mn must be hid as a contingency - provision depends on whether It I . a “measure” for th. control of Ut. pertimad air poUutents. As the A noted In the proposal regarding this , ed .tgra.Hon request. the term “measure” Is not defined in sedlon I7SAld) and Congress utilized that term differently In different- provisions of the Ad with respect to the PSD and NS* permitting proerams. For example, in sedI 11O(a)(2gA), Congiem required that SIPs to Include “.nlormsbi. imlsslon limitations and other control measures, miens. or technlqom • as may be neusmaly or. appropriate to meet the applicebLe requirements of the Ad.” In section 1IO(aX2XC), Congress required that SIP. i ndude’s 1 ,.zetop rov ld.fcrth. of the meavnw deemibed In subpemgmph (A), and regulation of the modlfica’ou aid construction of any UaoaF , within the areas wvvrvdby —tea nsc- ito beter I to mci haveb - SIPs bc_. dash measures an.... preumMi dIom review under pests C 1 D IPSD or NSR). Unisas “mauwis” s to ---w et tha i r — ” . L. _ i1 . parts C aidD, the re enue to pseomenucticu In — ‘tic ” 1l aft2J(C) , —-thesd mu ,, T In 1i l(2) (A) aid (0 . It is epperait t C mu dI.11 _ gur.1 ,d -view. On the other hand, in other irsIslons of the Act, such as section .81, Congress appeared to include PSD within the scope of the term “measures.” The USSI A believes that the fact that Congress used the undefined term “measure” differently in different itina of the Ad Is germane. This Indlostas that the term Is susceptible to marethanonein t lonandthat the USDA has the saetlon to Interpret It In a reasonable manner In the “ “‘i— ’ of section lisA. In.mauch as Congress Itself has used the term In a — - “ that excluded PSD and NSR from Its .pe , the USEPA believes It Is reasonable to Interpret “measure,” as used In sictlco 175A(d) , not to Include NSR. That this is a reasonable InterpretatIon Is further supported the fact that PSD, a p .m that Is corollary of part D NSR for attainment areas, goes Into effect In lieu of part D NSL’Thl. distinguishes NSR frvm other required programs under the Act, inch as ln pectlon end maintenance and MCI’ programs, which have no corollary for attainment areas. M..... ... , the USEPA believes that those other required programs are clearly within the scope of the term “ measure.”° The USEPA’s logic In treating pert 0 NSR In this s.arn r does not mean that other applicabl. part D requirements, 1 U.& A i fi l’lte the NSR sad P sss sq.kslsa but ms ’ the Ibsy ne lbs t ypeaI .e .m .t%. _____ to nd -Jgr-d to ltow —w s.s. psulitttr . ... p t. .J.ltuiy LL...JI... . tochdt. pIscor radhe mautsadq. as ma net asnftnulnS to men lb. KA .ftsr , ,A.4 5 .—ilo Io i ltalnmsnt. 4O JI 5 — L 5O etRuI.) s 4G t 1 1. 1 55 1 W puu mawid .ppIy Th. bJL. theE. asyssas tint I. àslpistsd w . e ttoimn.nt undw s . ImiO7,he . ,aI.....a ,lshtima o(th. NAA . ibis. , .JUa.I deed be L.L 1 . ..L.d as mi . .hOA abets VOC-’-’- G det h s11 fists. s.d is ssmh the 1:2 in ,. 5 . . Ollehe 24. ISSS - ion N .y Niebob sntlthd PntD tNw5.s.as list... ust 0 NSR R .q,L. ...J. be i _ —“ — toAltatoumal. •1t. U . S. IPA sue ness this In lbs ins at lb. is is. iii , ......Il. . to tensil beuu.I sdhe , 4wishe modmistle.. toned b, lbs nito le lbs Ju..I - nonitstomat isis. she. IL... _ L Is. tesuPae.c= ’lid with the 1.Isto tae rgle . to aMP’... . pumitale iJ mane be .sd ua the P . .,. _ . m l . . lbs 1LJ ma —‘ - the lbs l. ,.J Sent b sw . .modffl.d,owc.wlflne malt we sistehe .1 lbs NAA( . Mlddn’s Rats 703. wh I. t attb. np. IS 5IVs. th. lnetsIkdse.lusst Aselisbi. nt,ol Tsth.aI r dlis . sishe Issailan stall sin sad dI O.d to tin nat.. Is .ddltlaa. 5 1rl ’s 5.1.20?. ale. sppios.d lath. SIP, rsq .lruds.Is) olsny psanli so Install llnpm.tlcuv dIM M..Sps.uet will lntarls,s web seslamset — stth.NAAq3. induding those that hove been previously met and previously relied upon In demonstrating attainment. could be eHnehi.iwd - - en . ...J,. . demonstrating that -: - Id has demonstrated that — - --an would be protected with PSI) In e ct. rather than part 0 P451. T . the USEPA is not permftthig pert D1I to be removed without a demonstration that maintenance of the standard will be achieved. Moreover, the USEPA has not amended Its policy with respect to the conversion of other SIP elements to contingency provisions. which Is that they may be converted to contingency provisions only upon a showing that maintenance wilibe achieved without them being In effect. Finally, as noted above, thCuSEPA b 7 ellev,s that the NM requl ..nieot differs from other requirements. and does net believe that the rationale for the NM em p1lon extends to other required programs. As the USEPA has recently changed its policy, the position taken In this action I. consistent with the USEPA’s cunent natlonel policy. That policy permits redesignation to proceed without otherwise required NSR p . grsms having been fully 5 ptU $d and converted to contingency -provisions provided that the area demonstrates, as has been don. In this case, that maintenance will be achieved with the application of P50 rather than partDNS l t. - Comm - One comnientor au99usts that USEPA’. rulemaking is an effort to permit Michigan to avoid Including the 15 p . . . .t Rate .of-Progrses (ROP) measures, requited of moderate nonattalnment areas In the SIP. ifs essefttlal to have elements of the 15 pw... .t ROP plan available as contingency measure In the attainment plan. It Isnotclearthat rwIs .frlieg procedure will allow that to happen. - USKPA R.sporm. - As explained above, under the USEPA’s interpretation ohectlon 107. an ares need not meet all section lie and part 0 requIrements that - applicable after the submittal of i complete redesignatlon Isqt .ad In av to have the request aprvr.d. Therefore, the 15 p.. .t RCX’ plan. which was not due to he eubmittod until Novemlss. 15, 1993, after the aubmnisslon of the redesignatlon request. Is not required to be fully approved Into the SIP before redesiguating the ares to attainment. Similarly the section liSA contlag .. .cy plan need not Include all measures that -1 I ------- Federal Register / VoL 60, No. 44 / Tuesday, Match 7, 1995 I Rules and RegulatIons 13459 would hive been Included in the 15 penant plan since those measures were nd required to be laduded ha the SIP prior to redesignatlon. Furthermore. some elements of the Incomplete 15 percent ROP plan that Michigan did submit for the Detroit.Ann Arbor area are included In the maintenance plan and are available as contingency measures In th. maintenance plan. These elements Include basic JIM, Stage I expansion.” and Stage U vapor recovery. The USEPA believes that the menu of contingency measures is adequate and that additional contingency measures are not necessary. As for the commentors effort to ascribe subjective motivations to she USEPA in acting on this redesignatlon. the IJSEPA believes such contentions are simply Irrelevant. Comment One cc ’ ”Iar states that there can be no redesigr*tion until Michigan submits a complete and approveble 15 pea nI ROP plan. The coinmentor alleges that since Michigan’s application was not complete on November 12, 1993. all moderate area provisions Including the 15 percent plan must be La place to ancomplish the rudesignation. The commentor notes that Stags II vapor recovery and n upgraded 1dM program should be in Michigan’s SIP to assure continued “ .“ of the NAAQS. USDA Response Alter the USDA’ . review, on January 21. 1994. the rsd.slgnation request was found complete on the basis of lb. compI ’ miterla codified in 40 R pail 51, appendIx V.A. explained above, the November 12. 1993 request was based on three complete years of clean data, and the consideratIon .1 sa’ 1 quent air quality data doss opt all., the conclusion that that request was complete. Thus, ieVainbUr 12, 1993 radeslguatlou , ivet Is complete and. in acomdanco the U S DA’s need not be submitted or approved prior toap of the rsdaslgn.tlon. With r p to the commentor’s assertions regarding the need far Stage U vapor recovery and an upgraded JIM program to assure maintenance, the USDA es - the Slat. baa paneWedanadequated’-’ rat1on that will or even Id the of t egr.me. The State’s esaimiom .r-j-- ‘ esdedying the maintenance demonstration are dIscussed In the proposal at 59 FR 37197. and the commentor has provided no evidence that those projections are erroneous. Furthermore, the USEPA notes that Stage II vapor recovery and an upgraded l/M program were not implemented In the ares In the period of attainment and therefore, did not contribute to attainment of the ozone NAAQS. Stags II vapor recovery and basic I/M, however, are control ures Included as contingincy measures within the ma1nt ”r plan. Thus, Stage Hand basic Ift.tmay be Implemented In the event a violation of the ozone NAAQS oncaus during the maintenance period. The basic J/M program included In the contingency plan would upgrade and expand the current JIM program being implemented In the Detroit area. As the Uetrolt .Ann Arbor area has demonstrated attainment and maintenance of the ozone NAAQS without implementation of St U and an upgraded J/M program those measures may be made part of the contingency plan without implementation until such time ass violation of the ozone NAAQS warrants their implementatIon. The State, however, must continue toimplssnent all programs currently in place in the Detroit-Ann Arbor area In hi& 1 lb. . v4 4ng J/M program. comment Si,sral onmmentoi s suggested that meteorological conditions obierved In ) AI.lilgrn and wets not d wludvs to ozone formation, flees meteorological conditions, coupled with a eonu aJ reduction of e” t ’ t ons In Detroit-Ann Arbor ems remiltiag fin.. an ‘ u1Ic downturn, resulted In the I 4nm q claimed by the Detroit-Ann Arbor ims. The lois belie,.. that she attalmuent claimed by MI 44n Is not based on iee& reductions of precursor geses (NO* and VO USDA Response Section lO7(dX3XE)(UI) requires tbatj for the USEPA to approve a rs4a lgraaIon, It must determine that the Improvement In sir quality is dna to psrmanent md enforcesbl redu’elonn In ‘ ‘ans. The Sep..nh. C L .g il memorandum, at pegs 4, clarifies this reqidrement by stating that 1aItt I.m resulting from temporary reductions In emission rates (e.g.. reduced production or shutdown duto temporary adverse economic rnn&tloiis) or unusually fovorabi. meteorology would not qualify as an air quality lmprovemsnt due to permanent and enforceable emission reductions.” As discussed in the July 21. 1994 Federal Register notice, the Stat, of M1 thigi” has demonstrated that gurmanent and enforceable ‘ redidb are r.spons h he the — - Improv 11 If In air nlIly . This demonstration was aomznpNel.d through an lmal. of the w5l (from the year that was used to determine the design value for designation and classification) of VOC and NOx achIeved through Federal measures such as the Federal Motor Vehicle Control Program (FMVCP) and fuel volatility rules Implemented from 1988—1993, as suggested by tha September Calcagnl memorandum. The total reductions achieved from 1988 to 1993 were 226 tons of VOC and 45 tons of NO,, per day. These n lieion reductions were primarily the resuh of the FMV( and RVP reductions front 11.0 pounds per square bath (pal) in 1988, to 9.5 In 1990 and finally, to 9.0 In 1993. The Slat. only 4 1m 4 audit for — “ t ..lon reductions achieved ua result of Implementation of these federally enforceable control msenuee. These emission reductions . 4 Iu . l by Michigan re conservative since they do not ancount for nl ø redumions resulting from other control measures and programs irnpl iwtad during this time period such as the aurreal J/M p . gram and VOC RACI’. The State, therefore, adequately demonstrated that theimprovsment lnalrqua llty lsdueto permanent and sa rceebIs reductions of 228 tons VOC and 41 tom ofNOxperdayuareeultof imple.. .i H g the federally suhe le FMV and RVP “ o- With rasped to lb. liars olwnpsu.Hy f. ..bhe msteo ,ology, the — ‘sntors have not supplied and the USDA I not swam of data demonstrating that the maieorologlcal en.lilIdons in the D.lrJ$- Ann Arbor ares in 1990 and ib”.qu years were unusually fevorable with reaped to the Impact on’ formation. The USDA the average m..ti vologfeaI parameters of ma dmum monthly temperatures, uuulthly pledpitatlcn. and days with temperatures great than SO digress F.brenheIt forth, periods of April through September. 1991 through 1993. with the yssr (1963—1990) aver for them poromfers. The 1991—1993 av he these parameters agreed with those for the 9.ysat averages with only minor differences. fissed on averaged parameters, It can be concluded that the 1991-1903 period was typically conducive to ozone formation. Further, the USDA notes that the Detroit-Ann Arbor ares has been in attainment for three c’ ’taallve three-year periods (1990—1992, 1991— ------- 12470 Federal Register I Vol. 60, No. 44 I Tuesday, March 7, 1995 I Rules and Regulations 1993, and 1992-1994), and that this, along with the foot that real emission reductions have oxUrTed. Indicates that attainment Is not duo to unusually favorable. tempor.rj meteorological conditions. Comment A few communion noted that ‘Ozone Actloni” days were declared on selected bad meteorology days, with extensive media publicity asking th. public to rethuce activities having the potential to emit orone precursors. It is entirely possible that tim voluntary reduction program bad an effect In thesummerof 1994 to reduce potential osene excursions. The existimie of the voluntary pio am should be considered In evaluating the r ” r 1994 data. In addition, one w.- .’ dated that this Is an attempt to dusty Industry’s - responsibility to reduce emissions by shilling th . burden onto print. households though thee. “Ozone Actionl” days USEPA Response Attainment bee be.. demonstrated for 1990-1992. arid 1991—1993. and an ,ttab eflt level of emissions id..”I fled at which time no such voluntary program wee being Implemented in ths Detzcll .Ann Arbor ares. Michigan has also duinonstiuted through nI ao projections that the precursor emissions will remain below th. attainment year levels thorough the year 2005 without acoounting far any emission reductions. that mey have ismrlt.d from Implementat Ion of a vohuitaiy With respect to soy poasthl. Impact of a voluntary emission reduction p 5 ..iu on 1994 the USDA notes that the commentor has not provided and the USWA hesnorbesis for attempting to a the Impact clench program on emission and monitored sir quality Levels. Thu., the USEPA beasts bests for any determination reesrdl the impact of Ut. program, and dues not believ, that speonlatlon rigsrdI ach impectsprov idesabss lsfor- dlpprovlng the ____ Cnmmen ( One . r .MenLor 1 ai that .‘: ? _ control programs mandated by the Ad cannot be converted to cenfli -cy measures, that lb. Ad does act suthorisu conversion of required L reduction .o to ncy measures end that sedlort 1PSA( imp oses a man I.Iory duty on — that is redesignitud to continue ihe—.L i omtrol programs the ares L, t4 priorro r’ed’sa’gnalton. The s . th fuitbor elaborates by dating that ‘the SW impIein aflon requirement Is Included in the section discussing contingency provisions because contingency provisions automatically become effective If an ares fails to Implement the applicable SIP requirements. lncluaion of the provision In section 175A(d) does not by any stretch of statutory interpretatIon suthoitse converting a control measure that must bscompllsd with now os contingency measure that only need he complied with at some liter date. if ever.” The commontor also contended that allowinS the conversion of mandatory u itzuI prcgranmto contingency measures I . bed policy since iii. public will suffer harmful exposne during th. time necessary to impl n.n* the program after the event triggering the ‘nt1siguncy measures acorns. According to the coormentor, the delay would be execeibsted due to the USDA’s failure to require adopted regulations he the progrsms. USEPA Response The Act contains many requirements that States adopt certain measures specifically for ncnattainment areas. These requirements do not by their own. terms continue to apply to an area after It has been redeeig ted to attainrient. Morswvsr. nothing in section 175A Itself suggests that thee. requirements mud continue to ho metin redesignated areas. Section 175A(d) Is spedflndly and clearly applicable to contingency provisions end their inclusion ins section 175R maintenance plan. Section I7SA(d) establishes that SIP revisions submitted under lISA must contain contingency provisions, as maybe nw wiy , to assure that the State wi promptly c . any violation of the - .-- PAAQS that occurs after ________to attainment ftIbrthsr — that th se contingency provisiem Indude a requirement for the &ate to imp’ ” .’* all measures wIth reapect toth. ,u1 of ceone that were in -the aemttalnmunt SIP before the ares was da1guat.d . This provision dearly . iL. . . dritu that section 175A(d) vn’ phtes that there may be fully adopted but unimplemented contr 1 mesmu eslnt l mSWpr lcrto whetgna1ii i that will be shifted Into the maintenance plan as contingency measures. Nothing In section 175A suemats that the measures that maybe shElled Into the contingency plan do not lnct’ ie programs mandated by the Ad wh . re area wee designated no” -• ‘tinment. As section 175A(a) ieq’ :res adoption and Implementation of measures to ensure maintenance, It indicates that measures may not tie converted to contingency provisions unlese the State demonstrates that the standard will be maintained In the abasncaof the implementation of such measures. The USSI’A disagrees with . commentors assertion that lii p ry regarding the conversion of control p . ms mandated by the Ad to contingency meeres is bad r 1 i due to delays that ‘ zM Programs required to be adopted and submitted to the USEPA prior to the submiturionof a nideslgnat lon request will already have bunt, ndnptnd and may .be Implemented with minimal delay In the event contingency measures are trI sred. Such measures satisfy the requirement of section 17 5A(d) that the contingency provisions “promptly any violation of the standard which occuip after redeslgnatlon.” With ru yact to the cemmentor’s specific assertions that the USEPA should require upgrades to basic JIM and NSR p.gtams to be fully adopted by the State and approved by the USEPA prior to redeelgustlon. the USEPA notes first that It does act lnt.,. ..t the Ad to require Michigan to adopt the JIM upgrades fully now If it otherwise qualifies for redeslgnallon to attainment. Rather, as evidenced in the USEPA’s final IIM rule revisions, desa’ibed above and in the proposal, Michigan is required only to adopt the upgrades as a contingency measure in order to meet the requirements far basic JIM in section 182(ak2XBJ(l) and (bX41. MichIgan has done that. Under its submittal, Michigan must implement basic I /Mis months from th.dat.tim Governor decides to Implement the program as a contingency measure and Mlcnigen’s contingency plan contains other control measures which would result in ussr term -nlwitm iL. , that will be more effective towards u1ng a violation of the NAAQS than a NSR program, such as Stage I or SSfl vapor - The ‘tor also suggests that since the cement o.une NAAQS Is ad suMd’tly protective of public he.Ith the USEPA should not be caiounad with over wMIJ . In response , as previously discussed, the USEPA Is airruirtly reviewing the ozone NAA . Unlem and until the NAAQS Is revisad. the USEPA Is to make judgsmusntaon the basis of the currant NU(* p4., • determine whether a maintenance plan assures malntenancs of the LrITTIIst omne NAAQS. Comment On. corn tnentnr noted that Stage U vapor reco .ery was expected t Owuni brat least 22.5 tons pusday (lID) or 17 parc ent of the 15 percent POP plan. that mobile aourcas account for 50 ------- Federal Register/Vol 60, No. 44 I Tuesday, March 7. 1995 I Rules and Regulations 12471 pdta l of sir toxic emissions, and that refueling sutwtobl lea is the molt significant source otbennene exposure for the average person. As proposed, the redesignation would finally eliminate Stags II vapor recovery from the SIP. An improved UM program was expected to aixount for reductions of 61.6 TPD or nearly half of the 15 percent flOP. The commsntar adds that these 13 peromit ROP memures may be contingency measures in the maintenance plan, iethá than immediately required at any point In the future. Nevertheless. any such transfer of a maintenance meuure In the SIP tea contingency measure, to be required only U certain triggering events aa &trud, must be accompanied by. dr” ’etlon that the SIP measures are no longer necessary for maintenance. Any propc ed transfer aid d m rstloa of Justification of the transfer must be subJect to public notice and compleni. as required by the Act. USEPA Response Air toxic e.nhI*Ions or benzan. exposure am not relevant to this ruhmskhuig since It pertains to an ozone red ’.dgr*$i n. Moreover, this milesignatlon In no way exempts the ares from the air toxice requirements of sectIon 112 or ether provisions of the Since the area rem able to deniosistzete siiaintwlasice through an uuiin,iuus 1 i,ujuctiu ,i aiwlysis sIwwiaig that future VOC and NOx emissions will remain below th. attainment year level of wv i ons lihe level of emissions sufficient to attain the NAAQSL the USEPA concludes that currently required end future mandated control programs (e.g.. FMV(P) are sufficient to provide for attainment and maintenance uf tim NAAQ& I lowuvur. contingency umanares in the maintenance plan ate. required in accordance with section 175Md). The maintonarce plan for abs Detroit-Ann Arbor area contains contingency measures which would be implemented when tr sd by a violation of the MII4IMQS . USDA guid i .r. allows the flt 1 ” of SIP messurea which cams ep4w to r .I iiiIttal of a coesp11 . signatIon request to the mains,.ienan plan an contingency measures if the ares demonstrates at 1n .v i without impl .a’1 l I n of these measures and therefore, are unn ry for 1 s has adequately at maintenance wilt mx eathe a aithe L 1 r ’ 4 14 he —“ma.dted byths- ——PIItp.th. — tt ‘ ‘ was LI bp & entice andcomment during Michigan’s public comment period andbearlng. as well asth. LISEPA’. comment period, as required by the Act. Comment One commentor notes that to be effective at restoring air quality when a posa-redesignation violation ccaus, contingency measures must Include measures in the IS percent ROP plan. In elsboisslng, the nmentor notes that a contingency plan which lacks a program for.nh .t , rad I/M,StagsUend conformity is an empty box with no benefits. The precedent of “grsndparentlng” in moderate areas by allowing redesignatlon without requiring Inclusion of the attainment plan’s 15 percent plan as a contingency measure in the mainteno ’w plan is a dangerous precedent for Regfon.5 to set. It has the potential to result in the gutting of the Act nationwide by a seemingly Innocuous rulemaking at the Regional level. it is unclear that the veriftontlon and tracking measures described at 56 FR 37199 (July 21. 1994) will ever ectually trtjger th . requirement to impl.o.ent the contingency plan. USEPA Response The contingency plan contains, as contingency meesures, all of the unimplemented SIP control measures that were requited prior to submittal of the corn plate rodesignation request. Indudlug basic I/M, Slag. U. Stags I expansion, and NO 5 RACF. As noted In the proposal. Stage U lane longer a required measure due to the USEPA’s promulgation of on-board vapor recovery requirements. In addition, the Stats has ;lso Included 7.8 RVP’ and Intensified degjeaslng for degressing operations’ 3 as contingency measures. The USEPA does not believ, that this contingency plan ii an “empty box with no benefits” Instead that the contingency measures In th, plan would provide very real benefits In terms of potentIal emission reductions that the USEPA believes are adequate to deal with potential future violations. The ares Is not required to Include .11 measures from 11115 percent plan in Its contInger cy plan since the 15 p .nn. .I plan was not an applicable requirement at the lime the State submitted a complets redesignation request. ‘ 3 Lowur aw to t.5 pit envaely hi ar ameilninicy mamma liii . Sits usImli. aisi ik. ILS 1A 0mb. main ainkan aii(cxeac)dih. shit the Isma 5VP vsqiii,nmit Is . th.u toschlua. ibm amos NAM$. ‘ Iitamtflsd RACT in ç—” en auioszly .psdU.d Is Mistipa ash. Iii. Sit, Stisedsie. Inadditlon, Regions Is not setting a precedent of “grsndparentlng” of the 15 peromt ROP re thmaeat an ____ In the mat.I t e plea. Ths ---- with national policy that bm bean established med bm bms shove. See S.p1mnk fr.r’ and Sentambor Sbqiiro ‘ — *agazdlng tiansportstlon conformity. once redesignated. the Detroit-Ann Arbor area will be. malaI iait n ares and, therefore, required to conduct emission analyses to determine whather the VOC and NO 5 emissions xsn i below the motor vehicle emission budgat established In the maintenance plan. The July 21. 1994 proposal (59 FR 37190) does addima conformity with respect to the redesignadon on p. 3796. The proposal further discusses that. although conformIty Is applicable In these areas, since the deadline for submittal had not come due far these rules, th. approval of the redeslgnatlon Is not contingent on these submittals to comply with section 107(dX3XE)(v). However, transportation sad general conformity apply to main areas end therefore, the Detroit-Ann Arbor area must comply with these rubs once redesignated to The June 17, 1994 Cn”formlty General Preamble (59 FR 31238) to th. conformity regulations further den lea this issue. A rding to the conformity rules and preamble, the Detroit-Ann Arbor ares’s conformity test will be to remain within the VOC and NO 5 budgets established in the emlion 175A m 1nt .m.w plea. The July 21, 1994 notIce doss describe a tracking plan for updating the ‘ Ion Inventory. As d” ”—’I . the rsdsulgnatton request i m .iM Michigan to conduct periodic inventories every 3 years, provides e schedule these submittals, and lIsts the types of fedora used In projecting the’ Inventories, The Stat. notes that lithe fectore change mthsm niIslty the State would reprolect emissions forth. maintenance period to determine whether apparent Increases in 11 ons .redu.toáangssh i . .Lvllt1os techniques or actual amI ons , Although the.. periodic r” on inventories am not a mi 1 to til r lmplmnentMtma of omlingosry measures, If the periodic inv .iMries . w sed th. attainment level f ” In the maIn’ ” plea the USEPA may Issues SIP cell to the ares under section ii0(k)(5) on th, basis that the State made Inedequateessuaptians In proJmmtlng the inventory used to demonstrate , nsIn m .iw. In this event, the USEPA may require the Stat. to correct the projection inventory and. If 1 ”u—am propose and ------- 12472 Federal RegIster / Vol. 60, No . 44/ Tuesday, March 7, 1995 / Rules and Rngulatkwis ultimately Implement maintenance is ore(s) to tower the smisslona tea hvól .1 or below the att*inment year level. Since USDA policy only suggests that level of emissions be Included us triggering mechanism or method of monitoring the area emissions, State. are provided the flexibility not to lucludesuch a triggering mechanism. The Dottoit-Ann Arbor ares’s contingency plan contains one trigger, a monitored air quality violation of the . .inna NAAQS, as defined in 40 G ’R lion 50.9. The trigger date will be the date that the State cajutiflea to the USEPA that the ai , quality data sre quallty .aeewed. soda. Later than 30 days after an ambient air quality violation is monitcied. Once the trigger is confirmed, the State will implement one or mere aptirotirlals contingency measuree based ens technical analysis using a UAM analysis. The Governor will select the mmtlnpncy measures within 6 months of the trigger. The control measures which may be used as contingency measures within the maintenance plan are VM upgrades. NOx RACF, Siegel expansion, Stage U, RVP redudlon to 7.6 psI and intensified RACE for degreasing operations. As explained in the proposal . the USEPA believes that these measures are adequate to restore sir quality in the event of a post.rsdaslgnstion violation. Comment — The commentor notes that the Detroit- Ann Arbor area is the fastest growing business ores in Michigan. and that “if regulations am not implemented now. it will take yeers for companies to comply with new regulations added later. laid Local Indu stry should have to Implement coamonsense. cost- effective, pollutloui.contiul measures to protect the people In be ama. USEPA Respszme Thir area is currently Implementing awnerous emission control measures and will continue to do on even after redeslgnatlon to attainment for . -n- While the ares may be gruwlog,Ibe State has considered the limped. of growth not just in mobile w s also industrial sources of *‘ia precursors in Its maintenance Øn. The Slate has adequately shown that permanent and enforceable controls will continue to mae than offset the Impact of any auth growth through the L-’----’ — its eroisdions • - that em will ds — the pedaL In th. at . .enia psu.’4 5 ,-4ed and to ruii.J$ violation ottbe section A sslL an plan specifies control mee- -es which would be Implement. contingency measures in acoordagr. vith the schedules specified in ,July 21. 1994 and this final rule. Comment One commentor notes that the maintenance plan and contingency measures are not likely to protect maintenance of the NAAQS for ozone. because the tlmellne for implementing corrective measures is too protracted. providing too little protection, too late. USEPA Response For clarification, the contingency measures are intended to provide low maintenance by addressing a violation of the mene NAAQS maintenance mesmme serve to provide for maintenance of the NAAQS. The contingency measure hnphanentatlorr schedules were derived from the Act and applicable State and Federal .- regulations. As explained In the proposal and this final action, the schedule established for the implementatIon of contingency measures provides for the Implementation of such measures as soon as wIthin one year of a violation. Alan, as explained in the proposaL the USEPA believes that this schedule satisfies the ditesion of section 175A regarding the need for contingency measures top ptIy correct violations of the standard oncurring during the maintenance period. One cummentor alleges that the maintenance demonstration relies on fleet turnover with new can required to hflve on-board canisters and perhaps enhanced fuel efficiency to create reductions of VOC emissions sufficient to compensate for the steady growth of VMT”and keep Southeast Michigan In atI*lnhi t. With an aciaji time for fleet turnover of 10 to 15 years, those measures will have little effect on maintenance of attainment In the near ter USEPA R.spoime- The State is nut relying on on-board canisters In itsem lss lon projections through the maintenance period. The malntssmara demonsiretlon through amimlon projections must demonstrate that the emissions will net exceed the attaInment year ventory. See General Prsambte(Apr ll . 1992 .57FR13498) and September’ -agni memorandum. Michigan has der 3nstratad that, by “VVT laths . ... .J .. . etsIhstm,ets%iby vuI dnoli 1instyp.. psisiubly toeth Ileb . 1mb. h*ve, spusue. considering the effects of permanent and enforceable control programs (not including the on-board vapor recovery nile), as well as. growth in the ares (Including VhfI gueul$. year 2005 emIssions ___ - the attainment See 19 FR 37190, tableson p. Jh.S)1- — the Act nor USDA - ,-.L or sugg sLs that the Std. LL emission reductions during the maIntenance period. The USEPA reviewed the projection Inventory methodologies and found them to be appropriate. Furthermore, transportation conformity provides another emission management meulanism. The transportation conformity rules (November 24, i9 , 58 PR 62188) and General Preamble Urine 17.1194,59 FR 31238) apply to nonattalomint and maintenance arson The General preamble clarifie, that conformity analyses must demonstrate that VOC and NO,, emissions will remain wllhin the motor vehicle omission budget as approved ins section 175A maintenance plan. Comment One t ”entor states that an . , iO* precursor, NO*. can scavenge “ ‘ - For this reason, NO,, controls can actually increase ozon . levels in metropolitan areas while beneficially affecting downwind areas. The lack of NO, controls in the Matropoiltan Detroit area would help In attaining the 120 ppbonene standard but this approach would have no net benefit downwind (southwestern Ontario). The - coinmentor concludes that both NO, and VOC must be controlled. Anothev coinmentor notes that them Is too - information about the hiternctlouu b.twuuu VOC and NO,, to justil r granting an exemption from NO,, controls. UWA Response • Section 182(fKl)(A) of the Ad allows the Mministrator to exempt an ama outside an w i transport region fruu the seit lon 182(0 M l , n ipilromenia. if the USIPA deloruilners that Maddiilonal reductions of lNO ,l would not- contribute to sttalnmenr of the NMQS In the relevont area. It I , clear that if an area has demonstrated attainment of the ozone NAAC wIth 3 ponsecotive complete years of air quality monitoring data, additional NO, reductions would not contribute to attainment. since the ares has already attained. Therefore, a State may submit -- a petition for a sectIon 1820) ammptlon based on air quality monitoring data showing attainmeni of the ozone NAAQS. The USEPAs approval of such ------- Federal Register I Vol. 60, No. 44/ Tuesday, March 7, 1995/ Rules and Regulations 12471 an exemption Is granted on a contingent basis, I.e., the exemption would only be valid as long as attainment of the ozone NAAQS continues. If prior to final action to redesignate the sins to attainment the USEPA det.rmines that a violation of the NAAQS arzuned, the section 182 ( I) exemption would no longer apply, as of the date of such a deteaninatico. See December 1993 guidance document Guideline for erudnIng Lb. Applicability of NO. Requirements under SectIon 18210, and th. May 27. 1994 memorandum from Johe Salts, Section 182(0 NO. Exemptions—RevIsed Process end Criteria. In addition, the May 27. 1994 SeAt. memorandum, page In.?, states that while NO. reductions in areas that i q”.st and are granted. section 182(0 exemption may not contribute to attainment, they may contribute to maintenance and must be addressed In the Inaililenuoce plan requirud for veduslgnatlon. The Detroit-Ann Arbor area submitted a section 182 (I) NO. ‘ nsuipticn en November 12, 1994 based on 3 consecutIve years of monitoring data dsmons ziting att nment of the NMQ& The Detzoit•Ann Arbor ares sebselued the appropriate NO. dc icti nimtIon In their redesignation malnt.nancs p 1 an. By doing so, the Slate has demonstrated a commitment to control NO. if It is deemed neci ary to maintain the ozone standard. The USEPA epproved the section 182(0 NO. exemptIon petition for the Detroit ’Ann Arborarea Ins final USEPA action puh1( hd elsewhere In this Federal Register.___ With lI5pIct toth.aspects of the casements relating to the effects of NO. controls or the lock of NO. controls on £IJ1$ air in Canada, the USEPA refers the reader to th, responses to Lb. forth below. In addition, the redeslgnatlon request establishes VOC end NO. emissi, budg .’. sethUsidaga t Ioo levels ‘ 4 ” t . to attain tbsg NAAQS. lie, Sislu has aim dpgeqnstrslod lhsouijr emission Iess that the area’s wuissions wUJ ala below the attainment ln** sy through Lb. year 2005. , the State has demonstrated that NO. levels will not d current levels through the ‘—‘“ period. In respoum to the commenlots note tbmthemlsismlktls Information about 1L VOC and P1O ntiygoniIn szemption from ? * .. _ .k the tWA refer, the —— NO .IV(X Study by WA on July 31.1993. C egu — tbm USEPA d..Mo. a as personal petitions for NO. exemptions under section 182(fl(3) be trfggeted by publication of this 1853 repoil. Consequently, the USEPA believes that this provides evidence that Congress appears to have believed Lb. results of the 185B study would supply sufficient information for the Agency to grant section 182(I) exemptions. The USEPA refers the commeator to the final rulemaking approving the section 182(0 NO. exemption petition or the Detroit-Ann Arbor area published elsewhere in this Federal Ragister. Nonetheless, as demonstrated by the * ni ioa projections for the 10-year maintenance plan submitted by Michigan, continuing reductions in NO. emissions are expected (primarily from mobile murom as a result of FMV(Y). Also, additional NO. emI reductions are expected from implementation of the NO. controls required by title IV of the Act. Designation status of an ares is irrelevant in the applicability of title IV requlrem.nts consequently, subject sources in the Detroit-Ann Arbor ares will be required to comply with these requirements. Comment On. commentornotas that the Ion of proposed rodsaignation isa product of undue haste and that the final decision on redeelguation should await data from Canada’s study of ozone levels at Its receptors which ire down- wind of Southeast MithIgin A number of other commentate suggested that the U$EPA respond to concerns expressed by Ontario and Canada prior to utaWng any decision. Another commentor suggests that the USEPA obtain and ambient ozone levels prior to ploceedfng with the redeslgna*Io.. US EP A )tsspons. The USEPA has received ‘ ts and information from a number of Canadian Interests. All ‘ n” ts from commentate hi Canada have been considered as the USD’A road. a final decision on4hla actIon, and are addressed within this final rulemaking. As explained below, the USEPA does not believ, that these warrant a deferral of final action on this — C - One cosementor status that between 80 percent-b percant of toxic air pollutants In Windsor’s ambIent air are transported from the City of Detroit and other U.S. areas northwest of Windsor. Another commentor suggests that the technology needed to reduce ozone closely parallels the technology needed to abate toxic air pollutants In the region. By designating the ares as attainment, the region will no longer be retiulted to Include ozone reduction tec)uiology in Lb. Slat. of___________ SW under the Ad. Thfeomld ai1min *a bather chno’4 he - that would not only iedsei -- heals big aIsocenibutetaths’ — oIt c air pollutIon. S the Covurammis of the United S’ N sod In their RefOrence to the International Joint Commission (IIC), have .mphesi’.d that the IJC addriss the Impacts of toxic air pollution problems In the region, the IJC cannot support any move that would result in less stringent controls which have direct Impact an minimization of ozone levels and reduction of toxic - ‘ e”monl smI Imi.. Consequently, the commentor strongly disagree. with the proposed USEPA redeelgnstlon and recommends against It. The tar believes that the control requirements of the Act for this area should be Implemented. USEPA Response This ruiindgitmtlon Is for - - Toxic air poll”.”. are net relevant to the Ismae of whether an ares should be rudsslgnated du. to lts .”-’--. ’ of the em’aNAM . Separate from this resheigu .Hon. the Stat. Is required to meet other requirements of the Ad specifically to control air toidce ons.Theo .elgu.den would not exempt the area from Implementing sectIon 112 of the Ad. which Is Intand.d to address Lb. omitiol of hazardous air pollutants. Rules promulgated purmlantto ssctI n 112 are applicable to sources regardless of an ares’s ttainment Iti. In addition, sources of oew’* precursors in the Detroit-Ama Arbor area must continue to lmp’n” all control equipment and/er nrseswusla accordance with applicable Vuiss, - regulations and permits. Consequently. the redesigeados would not result In less stringent mmtrols than are currently being ImpI w ’ .d In the Detrolt•Mn Arbor area. Comm On. conunurdor notes that and Ontario are assembling data from r.naift.ii monitoring ‘ ‘t which are directly relevant to the decision to whether the Detroit-Ann Arbor area Is Iiwiuutly meeting the prusalbsd Ad requirements with r.i.pCt to ‘ - The comI e 1tor states that this InformatIon and other points will be provided to the Department of State on October 17. 1994. (On ober 17, 1994 a document entitled Canada/Ontario Technical Component of the Canadian r meot on the Michigan/Ann Arbor . Redesignatlon Request was r’ 1 ”ued. ‘I 2.. ------- 4 12474 FedersI Ragister IVoL 60 , No. 44 / Tuesday, March 7, 1995 / Rules and Regulations This document was prepared by Environment Canada arid the Ontario Ministry of the Environment and Energy). The commento? expects that this information would be considered In any final decision. A copy of the September 23, 1994 letter from the IJC to War n Christopher, Secretary of Slate, was attached. Another commentor claims thai the Canadians In Southern Ontario ate affected by some of the worst smog episode. In Canada. Many commentors state that much, If not all. of the ground level a’i n . In Southern and Southeastern Ontario isa result of trenaboundary movemàt of ozone and NO from the U.S. toCanada. Mlrhlgiii Is a signiflant scorns of the ozone and NO* coming horn the U.S. A number of commentors provided monitoring data from monitors locoted In SouthiUsst5rn Ontario and the Detroit-Ann Arbor erep sod asmit that high ozone levels reumied In the Detroit-Ann Arbor ares irssposd directly with high ozone levels which Ontario’s ozone standard. Some commeutors noted that high level. of w ia In Ontario may be the couse of Iausaasd respiratory .JiJ,..a . Another .mentor noted that. vicent study In southern Ontario indinste. that hospital aInth ions for respiratory problems has lnaeued due to ozone and acidic air pollution. This situation Is omuilng at ozone levels well below the 125 ppb averaged over one hour. Another counmentor su ests that being another u .,vvi.Ign nation and not a neighboring Stat.. Canada Is denied t.ctloz available to downwind States adversely affected by emissions horn upwind neighbor. within the U.S Another conunantor notee the 4 nagfItg effect of ozone on — ompa. USEPA &sporti . - The USDA has considered the October 17, 1994 eubmllial referred to and .11 other information , 1dsdby the Canadian Government u. oth - commentors on thee. Issues..: - Th,f o11owIng provides a . .l . of the USEPA’s review of the 0, 1994 docom submiUed Environment Can—op and th6 IstarIu’ Ministry olth. Environment d Energy. The umd w& 1 1. UflO $ oth skm e e omna monitoring data. IL....... , the monitoring datow.s tnhuiIeq iste far the USEPA to Nisthera violation of the U.S. - NAA( med In r a .ia r __ -‘5 , on N& n! _ 1,3 and 24. D—ter 14 and 19,1994 the l A-tJ 1 --d durifying information - the Ontario Mbtfstry of the Environment and Energy on the oann monitoring data submitted. In reviewing the Canadien ozone monitoring data. the USEPA examined each 3-year Interval from i.eo through 1994 as well as associated wind patterns. Based on a review of the Canadian report and the clarifying information, the monitoring data demonstrate. that there has not been a violation of the U.S. ozone NAAQS at the Windsor lUniveralty or South), Sarnia, Merlin, Mandaumin, London, Longwoods, or Parkhlll mcnitors.for the timeframe 1990-1992,1991—1993, or 1992—1994. In fact. th. only monitors that have recorded violations of the U.S ozone NMQS are the Grand Bend monitor and Tiverton monitor, which are located morethan 9OmIles and 140 miles away from the Detroit-Ann Arbor ares, respectively. The Grand Bend monitor rec ,idad violations of the U.S. ozone NAAC during the Limefrsme 1990-1992 with a number of expected exceedancos of 1.67 and during 1991* 1993 of 2.0. However, for the 1992_1p94 period, there was no violation of the U.S. ozone NAAQS with a number of expected exceedancas at 0.33. The Tivurton monitor recorded violations of the U.S. ozone NAAQS during the tlmefrsmes1990—1992 and 1991—1993 with a number of expected exciedanne of 2.0. However, during the 1992-1994 period, there was no violation of the U.S. ozone NAAQ&” In addition, the modeling submitted on ober 17,1994 i. limited and Insufftden for purposes of Im iicatIng the Detroit-Ann Armor area as me couse of elevated ozone levels in Ontario t The gr’ nd level wind trajectorIes , the October 11, 1994 ndlcote that winds Into ‘flvasto -d the Windsor ares p .s . throvib s aumber of urb nlnad areas In both the U.S and Canada (lb. Windsor urh Inad area). The USEPA also notes that math 1 .ncentrstIon may be attilbuluble to or &,M.. d by ozone p, naiIIons generated wIthln t 1naiftna border, , since Windsor Itself ni l. Oe ’ 1?, liii s IaI aId I4ti, LLIim metid thi tin ThwI. .—..JJme -- Ilel. The _ .a v usd tin um . ......JJ en Awl $4. tee. st t s PM. IL- . . . . . head .. J.Jf ,tu,LL L _ L L j shin k. .. . . . . . . .t sad inagy, thti isa.. “ ‘ tin . .,J.r.. ..J LI..L..... luluininiw ..di .....L.)e. Ap I 31 tees Lm.... . . thu bawi Sass PM ass PM and to tess PM. the d es in ins , . wes lauuiWeud by the e.I. rlarseys(th, a .:- - and bag,. Aenietbs’. .-’ .- _-1 wu ,sthetb. — puemulun. The ADOMGESIMA mode haul a US A i.Id&In. midut s,Ilgsd Ia ihsC.kWIe. an A k Quality Moduh. Irsuhuad it, P uury iee3). Fwthwmsdut J . ...uadm , ti oumpsullu.iviIantloa i ine A ptdutia. lean urban area with an estimated metropolitan population greeter than 223000. Thus, the extent of any contrIbution from the De -A Aiho, er ie to monitored -— In Ontarle ommat be . Li __ L I with any degree of cirtainty es bmisof the Information preaunily seid l, to USEPA. The data p , vlJ.d In October 17, 1994 submittal are Inadequate to provide a beak for determining the extent to which emissions from Michigan. and more specIfIcally, the Detroit-Ann Arbor area, are contributing to ambient ozone level. In Ontario. As a consequence. the USDA does not believe that the presently available information provides any basis for affecting its decision regarding Ijie redesignadoui of the Detroit-Ann Arbor area. The USEPA would like to mole that the governments of ihe United State. and Canada are In the proc .. . of developing a joint study of the transbotutdary e phenomena under the U.S-Canada Air Quality Agreement It Is envisioned that this regional anas study will provide the scientifIc Information nac —.ry to undetitand what contributes to ozone levels In the region, as well as. what control messures would contribute to reductions In e levels. Should this or other studies provide a sumdena eclentific basis for taking action In the futurea the USEPA will decide whet Is an appropriate course of action. The USEPA may take appropriate action notwIthstandIng the rede.Ignst lon of the Detroit-Ann Arbor area. Therefore, the USEPA does not believe that the contentions regarding trenthuundsry Impsd corvently provide a basis for delaying action on this rsJ. eIgnalIan or disapproving the redeelgnatlan. This is perticularly true since approval of the redurlgnatlon is not expsa4 to resuk In in maims, In ozone precureo .nisaIons and Is not expeclad to adversely affect air quality In Cana facts decrea. . In both VOC and NOx emiaeiana from the Detroit-Ann Arbor ares isexpacled overthe 10 year maintenance period. See 59 FR 37190, July 21,1994. ftsbouldaleobeaoted that r.deslgoatlon does not allow States to autarnatldlly remove control 1 . ima wblth have contributed to ares’s attainment of a U.S. NAAQS là any pollutant As discuseed the USEPA .i 4 al policy that a Slate may not relax the adopted and Implemented SIP loran ares upon the ares’s redesignatlon to attainment unless an appropriate demonstratIon “ “Sash J. . .. .. ..J . . iI. , . ane thaw ibis ._ wilt ne 6I . w h ------- Federal Register F Vol. 60 , No. 44 / Tuesday, March 7, 1995 / Rules and RegWatIons 12475 — on computer modalln& Is Ipproved by the USEPA. In thu case, no irevtously implemented control strategies are being relaxed as pert of this redesignatlon. The heefth effects of addic air pollution are not relevant to this ozone redesignation. However, the LJSEPA Is aware of the study referenced by the nummentor and Is considering this • study in ib. pru . a of reevaluating th, ozone NAAQ& Further, apart from title I requirements related to the cessation of the l druIl-Ann Arbor area’s statuses an ozone nonaita nmenl area, the area Is and will continue to be requited to satisfy all Act requirements. Other trel program. required by the Act will be impl.menled In the area. regardless of th, ozono designation. such as title IV NO control.. section 112 toxIc controls and on-board vapor recovery requirements. • ‘ “ tor note. that recent Information Indicates that significantly high readings hay, been recorded In lb. Town of KInwdlne this summer. lCInca,din. Is halfway up the eastern shorelins of Lake Huron. and therefore. be air quality in Klncardln. Is. for the lost pail, a result of emissions from Middgsn. Tb. coanmenlor requests that the USEPA reconsider the redesignatlon of lb. ares because It will have drastic •ff h, on the eastern shors. USEPA Rcs *rns Kiiumdiue Is inure than 1(10 itillus northeast of the Detroit-Ann Arbor ares, the subM of the redesignatlon to atta 1 ” ”nt for ozone. r equently, attributing elevated ozone levels in Kincardine to the Dstrolt Ana Arbor ares would be. complex task. It cannot be conclusively stated that emissions emanating from the Detroit-Ann Azbq, area ate, iir the most pitt, ” responsible for elev.ted ozone .Aw I. tIons recorded at a monitor m than 100 miles away. As demonstr ed by lbs wind trajectories prov1de by ( nd as part of lbs Ottobsr 17. 1 Iiubmittal. It can be seen that air pamela travel through several U.S. and I 4 Ian urbaa1 d areas. Again. It is noted that the 135. sad C.na4 a are cooperatively developing a regional study to investigate the transh 1 ary -st N5 sad we.W i.ull I ki--’ sa a b , Quality C 4*. .—a-—1- —. I in s Puicy. Comment One commentor states that the truisboundary ozone issue points to the need to manage air quality In a regional context and notes that In their meeting of July 25, 1994 In Washington. Carol Browner. Administrator of the United States Environmental Protection Agency, and Sheila Copps. Deputy Prime Minister, Minister of the Eovlionnient, Canada, agreed to coop.t . in regional man.gsment of lbs transhoundary ozone problem. The comnientor suggests that the Great Lika region provides an ideal opportunity to advance this coacepL USEPA R.spozis. Subsequent to tire BrewnerlCcpps meeting, the U.S. and Canadian Governments have met to A1ac . . and develop a regional pilot program to address any potential regional tr.pshouadary ozone issue. This new regional pilot effort is being developed ass priority under the U.S ” ” Air Quality Agreement. Comment On. mentor states that the Southeast Michigan Coundi of Governments has disc .aed lb. redesignation at past meetings of he Windsor Air Quality ra nimIttee, at which local committee member. pointed out their ri nt g to no avaiL All information availabl, suggests that the request for redesignatlon Is without scientific merit at present. and is promnatweat beat. USIPA flespon.. Am blent ut monitoring data In lb. Detroit-Ann Arbor ares dem.nstratss that the are, is attaining the NAAQS. Inuaddition, the Slate has met all applicabl, requirements undue sectIon 107 of the Act. As previously dt .... ..qj lb. U.S. and r i 1 cooperatively developing a regional ozone study to Investigate the transbounáxy pbr ’om’. . Cont i nent One cemmsmtor notes that the March 1991 formal agreement (lb. Mardi 13, 1991 U.&.t na l Air Quality Agreement) between th. U.S. and celled for etherpartlsstotaks steps to avoid or.mltlgat. the pátuntlal risk pond by specific aclans . On this bests, It Is requested that the USDA reconsider the consequences of approving this request for souIk sat M lgsn. Another r.brs to the Mardi 13.196% AIr Quality Agreem’t between ra and the U.S. with respect to the effort of the two countries to address trensboundary air pollution through TM doopentlve and coordinated action.” Afleging that ground level ozone production in lb. DeUolt-Ann Arbor area by Its mo sat the U.S..( .naaIa border has a significant Impoct on sw I ,a production and ienerol air quality In lbs Wi ’Ia — Soutliwesteni Ontado region cIf na the commentar that the Depazlmsnt of Stats dime em to provide the Canadian Government with formal advance notice of the intention of the USEPA to act an an issue which would haves major Impact on traniboundary air pollution. USEPA Respons. Paragraph lot Attic), V of the Mardi 13,1991 U.S .1’ na Air Quality Agreement states that “Each Party shall, • as appropriate and as required by Its laws, regulations and polides, . u those proposed aa iona . activities and projects within th. area under Its jurisdiction that, it carried out, would be likely to cause significant transbowutaiy air pollution. Including consideration of appropriat, mitigation measures.” Paragraph 2. spedfi.s that parties shall notify each other of actions under paragraph 1. Since the action to redesignate the Detzoit.Ann Arbor urea to attainment does not result in a relaxation of existing control requirements or an lnaease In aware precarsar ‘ 1 ons, the USC’A does not bell.v, that formal o5iAawtb . was nor that this action poses a potential risk. is well aware of ibis redesignatico at this time. However, in the future, the U.S. Intends to notify Caned , of ‘ c tt n’ia similar to this action as early as possible regardles, of whither notifIcation Is required uw the U.&-Canads Alt Quality Agresm . In addition, the U.S. will work with ran.i4 to address troposphusic In th.cniitavt of the Air Quality Apsement.ps previously Ai _ iw4 Comm A .iinh of ccmmssitors befisee that the air quality In the Detroit-Ann Arbor ares has not improved but dst.tor.t.d in recent years. Pm ” developments hav been detrimental to air quality. sudias the aparatic ut of a trash Indnentor which emits al meche Into the sir around the dodi . perticularty en wn” ” 1 ’ when bt ,dit. ,u , ass “e4 . Insteed ofrecycling, the Oty of Detroit din ’ - ’ , to pollute southesat ) it 4iig , and Ontarios air. Multitudes .1 Industrial plants are located cut ths Detroit River whose smok.s a cast gray bass over everything, even cut sunny days. On. commentcr Hats a number of local facilitlee which it claims causes visible ni ons and ------- 12471 !t er11 Register! Vol. 60. No. 44! Tuesday. March 7. 1995 / Rules and Regiihutlons oftsnslvs odors. Another “wn ’ entor status that Wayne county ranked 11 In amount of hazardous ehnlC.1 5 ,elau.d through air emissions (as well SI In “suspected” carcinogens). and wan fearful for her health and future because of current air quality. Another commenlar claimed breathing problems caused by outdoor air. Wayne County was accused of posing numerous pulmonary health rt a for residents. lmp .. este In air quality are n 4 vy Iqe the re.l4lsit& safety and USDA Response The July 21, 1964 Fedeml lagister notice , rupo.u to rqdeslgnal. the Detioit.Ann Arbor area to attainment solely for The Detroit .Ann Arbor redusignation requed satisfies the section 107(dX3)(E) requirements. Among the.. requIrements I. that the ares demo n strat. attainment of the — - NMQS See section - 1O7(dX3J(EXI). The Dulwlt .A n Arbor ares has d.mi rstud throug 3 wnw Ivs years of complete air quality data, that the ares has attained the NAAQSI The ems Is and will continue to be required to satisfy all Ad requirements pertaining to the .““ ‘on of hazardous air pollutants. Further, . ‘4.thtg facilities mud continua to • opirals exI ’ng sir pollution control equipment In accordance with appllcthle rules, regulations and pmniita . and sources that are problematic In terms of posing. td to area residents may be referred to the State and local envIronmental snfo. uent staff for investIgatIon. Retaining the ares’s current noa.ttalnment designation for o”we would not affect visible emissions and/or offensiv, odors born the misting Indnsrator. In addition, certain sew rul andiegulatlons will still apply to area sources even If the ares Is redesignated to attainment for oe for example,Mmdrnwn Achievable ntrol Tuthnolonv end additional under se oa 112 ( aIr taui fihj Ad. Wltb reipocltotbs — . cont.nUonth.tlm 11 . .. T é quality are ns y for 1i safety and health, It shoul F r p1z.d that section ios.f Ad — that the NAAQ which mud bebseed on established 1t ls and allow an ada 9 .st . margin of safety. the kh . Unless and wilD liii . .soL.J , the ow” . - NA putherni standard - - L bs&v. that desigur”thig the ares to atf.L nt would exempt the area from stricter clean air regulations. They believe that the USDA should require local Industry to implement commOn-sense, cost.effectlve pollution control measures, more stringent automobile emission testing (current testing Is not effective), and service stations to Install antipollution devices on gasoline pumps (Stage I I ). The USDA should encourega that measures be taken to ensure that no pollution problems occur Inthefutugs. USDA Response Radesignatlng th. ares to attainment for osuno does not the Stats from 1mpImn .tIng ures na nwry for attainment. Further, ddltlcnal regulations such ass basic I/M program. Stage ft vapor or Stags I expansion are leceaporaind Into the ares’s maintenance plan as 000tiDgaucy measures. The contingency measures selected by the State Will be implemented ifs vjoIsH Is Co”ent One cammsntor . .saata the USDA torequ lre ,andtomak.public ,an independent, third party, statistical verlflcatlon of air quality and related environmental health data to supporter dispute e4 I i made by local businesses, a senator and a governor. If moultorlng In the southwest sectien of Detroit Is ongoing, then there would be that tougher standards are USDA R.sponm lb Stats has established air monitoring networks, sampling and analysis procedures as well as quality assurance end control procedures that satisfy USDA guidelines. The State will w .4laUS to op.rsl . its monitoring network aiter redesignatlon. Third pajty statistical verlftc.tlon of air quality data Is not required by the guidelines pt rp of this One cosemsutor stated that the USDA should not redesignate the Detroit-Ann Arbor area because It le llkslythattheareaw ll lsoonhavetobe redss lgnatad bath to nonanainment. The c’usmentor also provided various Information related toinasaslng VOC emissions and petroleum usa USDA Response The USDA believes that Michigan has shown that the Detroit-Ann Arbor mashes attained and can continue to maintain the NAAQS for ozons. In the event that a violation of the ozone NAAQS does occur In the future, however, the maIntenance plan provides forth. Iipl—-- ’ond Stat.’, contingency section 175A to i w.J —v violatloea of the NAA by the Act. W lthveganItotIw ... - contentions concerning V ‘ 1 om and petroleum usage, the USEPA notes that in Ita showing of maintena.ce over a lOyesrperiod , the State has technically esen ed not only the Impacts of reductions due to control program., but also In ..au due to growth in all potential sourcea of emissions. These potential sources Include petroleum usage In the mobile source and Industrial source sactors. The Statôas shorn In these eameats that reductIons Ii emissions over the maintenance period will more then offset any in eeaes In emissions of VOC, The USDA’s decisions mud be based solely on whether Michigan’s submission adequately .d&essss the statutory req dnments applicable to sudseignatlon. The USDA ha. determined that It doss md Is thus approving the redesigoatlon requed. Again , In th. event that violations of the ,=-.i, . NAAQS occur, Michigan mud promptly Implement Iti canthigancy measures such that the ozone NAAQS Is once again attained and maintained. IL Final Rulemaking Action The USDA approves the redsalgeatlon of the DetroIt-Ann Arbor, Michigan ozone ares to attainment and the audio. ’ l isA maintenance plan as a revision to the Michigan SIP. The Stat. of MIchigan has satisfied all of the requirements of the Ad. The • USDA has also approved the section 1 12( 1) PR) 5 exemption for the Detroit. Ann Arbor area In an action published elsewhere In this Federal Register • which exempts the area from she sedI us 152(0 NO 5 roquimmenis As. curi quuuce of this adion. the USFPA also stops the sanctions clocks that bad bee . started as aresialt of th. findings mad. an January 21, 1994, regardIng the lnainipIetan of the 15 p.. .t P plan and the section 172(cK9) contingency plan for the Detroit-Ann Arbor area and on May11, 1994, regarding th. basic t/M plan for the a Thisaction has beset classified ass Table 2 action by the Regional Administrator under the p 1 a .J . ’ .is - published In the Federal Register on january19, 1989(54 FR 2214—2225). — revised by an October 4.1993,. memorandum from Michael a Shapiro, Acting — ant Administrator he Air ------- Federal Re isler F Vol. 60. No. 44 F Tuesday. March 7, 1995 I Rules and Regulations 12477 and Radiation. The 0MB hu exempted this regulatory action from Executive Order 12868 review. Nothing in this action should be construed as permitting or allowing or eslablishing a precedent for any future request for revision to any SIP. Each request for revision to any SIP shall be mosidered separately in light of specific echolcel. economic, and environmental hctors and in relation to relevant itatutaly and regulatory requirements. Under the Ragulatos , Flexibility Ad. S U.S.C. 600 et seq.. USEPA must prepares regulatory flexibility analysis isassing the impact of any proposed or ftn.l rul. on small entities. S U.S.C 603 sod 604. Alternatively. USEPA may mrtlfythattherulew lUnothaves .lgnlftosnt economic Impact on a Ij) s.IIR ta1 number of small entitles. Small entitles loclude small buslnq . umali nat-for-profit enterprises. and government entities with Jurisdiction over populations of less than 50,000. The SIP approvals under section 100 sad suI 1 4 p t . rL part D .of the Act do eat aset. any new requIrements, but simply a prove requirements that the State is y Imposing. Therefore. ressuss the Federal SIP-spproval does at hupess any new requirements. I certify that It dose not have a significant Impact on small entitles affected. Moreover, due to the nature of the Federal-Slate relationship under the Ad. preparation ota regulatory flexibility analysis would constitute Federal Inquiry into the economic reasonableness of Slate action. The Ad forbids USEPA to base Its actions concerning SIPs on such grounds. Union El.cthc Co. v. USEPA, 427 U.S. 248.238-u (1976). Under section 307(bXI) of the Ad. petitions for IudicIaI review of this action must be flied In the United States Court of Appeals fur the appropriate. cemilt by NayS, 1995. FIlings petltlo* fur rr derat1on by the Ai InL.hater aithis final rule does sat a ct the finality of ibis rule for the puspsmm of jutIkisl review nut dues M s ’uu 1 the turns within which a pei’il s fur pMlII 4 4 review may be filed, arid shalinot postpone the sifediveneas of inch rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See Sec’i ’ 307(bK2 IL - Air J J1._L .4 aoacuJ matter. Reporting and recordkeeplng requirements. Volatile organic compounds. CFII Port 81 EnvIronmental protection. Air pollution controL Carbon monoxide. Hydrocarbons, National parks. Nitrogen oxides, Osone, Volatile organic compounds. Wilderness areas. Desed Fdeusiy 8. ieee. Norman I. Nisdogsng. Acting RagIaneIAdmSn fre&or. Orsp terL tItle 40 of theC odsof Federal R guIaIL1M is . ,wdAd as follows: PART 52—(AMENDIDJ 1Ths authority citation for part 52 centinues to read es follows: Aetbadlyr 42 U.&C 7401-7671q. 2. Sedion 52.1170 1 5 amended by adding paragraphs (c) (101) and (102) to reed as rollows: • 2.1 170 I .nUIcsUo’i c i pten. • S S S • • (c ) ’ (101) On November15, 1993. the Slate of Michigan submitted as a revision to the Michigan State Implementation Plan for ‘ . a State Implementation Plan for a motor vehicle insp 1Ion end ma ntuaiw . program for the Detroit-Ann Arbor ares. Michigan submitted House Bill No. 5016. sIgned by Governor John Eaglet on November 13. 1993. (I) incorporat Ion by refureecs. (A) State of Michigan House BIll No. 5016 signed by the Govemgr and effective on November13, 1993. (102) On NovismIll 12,1993. the State of Michigan su ”Itted as a revision to the Mi’ 4 ’iga Stat. hapIr” ’tatIon Plan o’ ’e a State [ inplementation Plan Iota section 175A maintenance plan for the Detroit-Ann Arbor ann as part of Michigan’s request to redesignat, the area from moderate nona*s.Inment to attainment for ‘ ‘ - Elements of the section 17$A maintwui plan include a buss year (1993 IsInmd year) emission inventory forNO and VOC.. demonstration of maIn’”’i’ of the ozone NAAQS with projected emission Inventories (induding Interim years) to the yeas 2005 for N0 and VOC, a plan to verify continued attainment, a contingency plan, and en obligation to submit a subsequent maintenance plan revision in 8 yearsas required by the Clean Air Act. l I thearea records a violation of the nsnn NAAQ (which must be confirmed by the Slate), Michigan will Impl . t on or mere appropriate caating ’ y msasw.(s) which are con M , d in the w4ig _ . y plan. ApwopI 4 at of • a thug meemire will be determined byes - - - ahuhed modeling analysis. The Governor or Us designee will select the contingency meesure(s) to be hnpleuiented based on the analysis and the MDNR’s recommendation. The menu of contingency measures Includes basic motor vehicle Inspection and maintenance program upgrades, Stage I vapor recovery expansion. Stags U vapor NCâby , Intensified RACT for degreasbig oper-•_tIoira. NO* ‘ 4. RVP redu ’a to 7.8 psi. Mith(g.,i submitted legislation or ntis. for basic 1/hi in House Bill No 5016. sIgned by Governor John Englur on November13, 1903; Stage land S ta gsliin Bill 728 sIgaedbyGovernorJohn nnJaron. November 13,1993; and RVP reduction to l.8 pal inHouse Bill 4895 s lgnedby Governor John Engler on November 13, 1993. (ii Incorporation by . J ,ranos . (A) State of Michigan House Bill No. 5016 signed by theCoventorand effective on November 13.1993. (B) State of M’ 4i’g” Senate Bill 720 signed by the Governor and effective on November 13,1003. (C) Stats of Michigan Hersa Bill No. 4895 sIgned by the Covenror and effective on November13, 1993. 2. Section 52.1174 is “n’ d by adding paragraphs (h) and (13 to reed es follows: •99. 1 174 C i. *55599: 4 . • S S S S or) Approval—Os Jsnns’y 8.10 13th. Michigan Department of Natural Resources submitted a revision to the Slate ImpI n %IStiawI Plan (or the 1990 bess year . “ inventory. The inventory was submitted by the Stats of Michigan to satisfy Federal requirements under 1 Il1S2(aX1) of the Clean Air Ad as amended Ia 1900, isa revision to the ozone State Implera.ntatlon Plan fur the Detroit. Ann Arbor ssodmte e nmott mIt ares. This arm t.&4u Uvlng sloe, Mc b . Monies, Oakland . SL Clair, Wa.hh sw. and Wayne (I) Approval—On November 12. 1993. the Michigan Department of Natural Resourma submitted a lequed to redesignate the Detroit-Ann Arbor (consisting of Uvlngston. Msrn.uh , Monroe, Oekland, Si. Clair, Washtenaw, and Wayne counties) ozone nonattainment area to attainment for ozone. As part of the redesigiratlon request, the Stat. submitted. ,e)elluuor, Motor 5 ituA7r pollution. Nitrogen o’i1’ ’ .. t a na , Particulate S ------- 12478 Federal Register / Vol . 80, No. 44 / Tuesday. March 7 . 1995 / Rules and Regulations maintesance plan as iequi- ‘y 173A onAfrAct,assin .edin 1990. Elements ofthssscti 75* maintenance plan include isse year (1993 attainment year) emis.icn inventory For NO and VOC. a demonstration of maintenance of the ozone NAAQS with protected emission inventories (including interim years) to the year 2005 for NOz and VOC,a plan to verify continued attainments contingency plan, ind ia obligation to submit, subsequent maintenance plan revision in 8 years en required by the Clean All Ad. lithe area mui ds a violation of the ozone NAAQS (which must be confirmed by the State), Michigan will implement one or more appropriate contingency measure(s) which en contained in the contingency plan. Appropriateness of a contingency measure will be determined by an urban sir,hed modeling analysis. The Governor or his designee will select the contingency measure(s) to be implemented besed on the analysis and the MDNR’s recommendation. The menu of contingency measure. includes basic motor vehicle inspection and maintenance program upgrades . Stage I vapor recovery expansion. Stage I I vapor intensified RACT for degisasing operations. NOx RACr. and RVP reduction to 7.8 psI. The radulgnatlon request and maintenance plan meet.the redesignatlon requirement. in sections 107(d)I3XE) and 175* of the Act en amended In 1990, respectively. Tl e redesignetion. meets the Federal requirements of section 1821.1(1) of the Clean Air Act m a revision to the Michigan Ozone Stat. Implementation Plan for the above mentioned counties. PART 81—(AMENDEDJ 1. The authority citation for rent ni continues to read en FollowL Aatb.diy . 42 U.S.C 7401-TSTIq . 2. In 81.323 the ozone tablet. amended by revising the entry for the DetroltAnn Arbor area for ozone to read as follow,: •t Michigan. • a a a . . - em o & c1 n 0 ti, Oats’ Type Date’ Type a S S S S De m aber em LMi,.& a Coiaity Ma ,. . .nde ud Memos Cosa*y OJJ .J Cw y sLc cw y - A vI 6, 1995 — A9II8 1995 — Apr96, 1996 — ApiS I,1996_ Apr98, 1995_ AiIJh ..vld AtIS IlIflIJI MIüi . ,.i4 AU..L..at AII.&....t* . Wa.tes,a. Cairn Wayne COII1 • • S ApiS S,1996_ Apis 6,1996_ AtI.hunw* AL uuu* S S S ic a*isr 15, 1890, trAse u8iari.4a. nat.d. a a a • a (FR Dec. 96—9441 flIed 3-1-43 ; 5:45 ne ) sees • r - 4ocpRpsrt7o ; P 1IM-1) - Clean Air Act Flnst hlllbe Approvi of Opsisteig Pennito Program; Iflnols *amic Env1II IIIR I,! Pveta JIan A 8 incy (EPA). AGDOIL Final 1UIeeI UVVIIL WNM Y The Wk sdgaIIng interim approval of the Permits Program submitted by U for the purpose of plyIng with Fedevstrequlnmeuts formi az’omvthle Stat. program to issue opezaun pur ifts to all ma)or etatlowy sources. and to ontein other FI I DATI March 7, 1995. *00a6335* Copies .1 the State’s ath , ta1 and other supporting information used in developing the final I fh $ p. V%l iie available r inspection during no in.l business how, it the following location: United States Environmental Protection Agency, Region 5.77 West Jackson Boulevard. AR—1eJ, Chicago, illinois P06 PIMt 5 R PONMTION COISTACT1 Jennifer Buracky, 77 West Jeci’ ’n Boulevard, Permit. and Grants Section AR—18J. Chicago, illInois 60604,1312) 888—3104. SUP flARY FC A L Background and Purpose A. Irtfrodudloa ml. V of the 1990 Clean Air Ad Amendments (sections 501-507 of the Clean Air Ad (“the AdD. and Implementing regulations at 40 Code of Federal Regulations (GB) Part 70 require that Stiles develop and submit operating permits programs to EPA by November 15. 1993. and that EPA act to epproveor disapprove each program within I year after receiving the submittaL T .a EPA. 1 .u m review cauis pursuant to section 502 of the Ad and the part 70 reguLations, which together outline atteria for approval or disapproval. Where a substantially, but not Eriiy. mesh the requirement. of part 70. EPA may grant the program interim approval fore period of up to a years. If EPA has not folly approved a p by 2 years after the November15, 1993 date, si by the eiid of an Interim IImsh establish and implsinent a Federal 1 ” ptembsr 30.1904, EPA proposed interim approve) of the operating permits program for fitneSs. See 39 FR 49882. The EPA received. public comment on the p ,oml , and compiled a Technical Support Document (TSD) which descrIbes lb. operating permitS program in WDU*V1 detail In this notice EPA ii taking final action to promulgate Interim approval of the operating purmits pIllwsm w Illinois. IL Fl .l Adlen and Impllcathuia A. A ii’- ire of Slot. Sishmienkin The r. A received comments from s total of our organizations. The EPA ’. response to these comments Is summarized in this section. Comments ------- ço UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESEARCH TRIANGLE PARK, NC 27711 MAY 10 1995 AIR QUAUIY PLANNING AND STANDARDS MEMORANDUM SUBJECT: Reasonable Further Progress, Attainment DemonstIation, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone Nationa ient A uality Standard FROM: John S. Seitz 4 Directo Office of Air Quality P i an an ds (MD—b) TO: Director, Air, Pesticides and. Toxics Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division 1 Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region V1 Director, Air and Toxics Division, Regions VII, VIII, IX, and X I. Policy This memorandum set:; forth EPA’S interpretation of certain requirements of subpart 2 of part D of title I of the Clean Mr Act as they relate to ozone nonáttainment areas that are meeting the ozone NAAQS. Specifically, it addresses whether such areas must submit SIP revisions concerning reasonable further progress and attainment demonstrat:ions. The requirements at issue include the 15 percent plan and attainment demonstration requirements of section 182 (b) (1) for moderate and above ozone nonattainment areas and the attainment demonstration and post—1996 RIP requirements of section 182(c) (2) for serious and above ozone nonattairunent areas. Related requirements include the moderate ozone nonattaininent requirements of section 172(c) (9) concerning contingency measures, the serious ozone nonattainnient area requirements of section 182(c) (9) concerning contingency measures, section 182 (C) (5) concerning transportation control measures and section 182(g) concerning milestones. They also include the elements of the severe and extreme ozone nonattaininent area requirements of section 182(d) (1) (A) concerning vehicle miles traveled that are related to RFP requirements. ------- 2’ For the reasons described below, EPA believes that it is reasonable to interpret these provisions so as not to require areas that are meeting the ozone standard to make the SIP submissions to EPA described in the provisions as long as the areas continue to meet the standard. ‘If such an area were to - monitor a violation of the standard prior to being redesignated to attainment, however, the area would have to address the pertinent requirements and submit the SIP revisions described in those provisions to EPA. This inemorandum’also describes the process by which EPA will determine that an area is attaining the ozone standard and need not make these SIP submissions. II. Interpretation and Legal Rationale The EPA., believes it is reasonable to interpret provisions regarding RFP and attainment demonstrations, along with related requirements, so as not to require SIP submissions if an ozone nonattaininent area subject to those requirements is in fact attaining the.ozone.standard (i.e., attainment of the NAAQS is demonstrated with 3 consecutive years of complete, quality- assured air quality mor)itoring data). The EPA has previously interpreted the general provisions ‘of subpart 1 of part D of title I (sections 171 and 172) so as’ not to require the submission of SIP revisions concerning RFP, attainment demonstrations, or contingency measures, and EPA believes it is appropriate to interpret the ozone—specific provisions of subpart 2 in the same manner. First, with respect to RFP, section 171(1) states thai, for purposes of part D of title I, RFP “means such annual incremental reductions in emissions of the relevant air pollutant as are. required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date.” Thus, whether dealing with the general RFP requirement of section 172 (C) (2), or the more specific RFP requirements of subpart 2 for classified ozone nonattainment areas (the ].5 percent plan requirement of section 182(b) (1) and the 3 percent per year requirement of section 182(c) (2)),’ the stated purpose of RFP is to ensure attainment by the applicable attainment date. If an area has in fact attained the standard, the stated purpose of the RFP requirement will ‘have ‘EPA notes that paragraph (1), of subsection 182(b) is entitled “PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS” and that subparagraph (B) of-paragraph 182(c) (2) is entitled “REASONABLE FURTHER PROGRESS DEMONSTRATION,” thereby making it clear that both the 15 percent plan requiren ent of section 182(b) (1) and the 3 percent per year requirement of section 182(c) (2) are specific varieties of RFP requirements. ------- 3 already been fulfilled and EPA does not believe that the area need submit revisions providing for,the further emission reductions described in the RFP provisions of section 182(b) (1) and 182(c) (2) (B) and (C). The EPA notes that it took this view with respect to the general RFP requirement of section 172 (C) (2) in the General Preamble for the Interpretation of Title I of the Clean Air Act inendments of 1990 (57 FR 13498 (April 16, 1992)), and it is now extending that interpretation to the specific provisions of subpart 2. In the General Preamble, EPA stated, in the context of a discussion of the requirements applicab] .e to the evaluation of requests to redesignate nonattainment areas to attainment, that the “requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no meaning at that point” (57 FR 13564).? Second, with respect to the attainment demonstration r quirements of section 182(b) (1) and l82 c)(2), an analogous rationale leads to the, same restilt. Section 182 (b) (1) requires that the plan provide for “such specific annual reductions in emissions . . . as necessary to attain the primary NAAQS by the attainment date applicable under this Act.” Section 182 (C) (2) (A) simply requires a “demonstration that the plan, as revised, will provide for attainment of the ozone NAAQS by the applicable attainment date.” As with the RFP requirements, if an area has in fact monitored attainment of the standard, EPA believes there is no need for an area to make a further submission containing additional measures to achieve attainment. This is also consistent with the interpretation of the section 172(c) requirements provided by EPA in the General Preamble to title I, as EPA stated there that no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since “attainment will have been reached” (57 FR 13564; see also September 4, 1992 Calcagni memorandum). Other SIP submission requirements are linked with these attainment demonstration .ind RFP requirements, and similar reasoning applies, to them. The first of these additional 2 See also “Procedures for Processing Requests to Redesignate Areas to Attainment,” from John Calcagni, Director, Air Quality Management Division, to Regional Air Division Directors, September 4, 1992, at page 6 (stating that the “requirements for reasonable further progress . . . will not apply for redesignations because they only have meaning for areas not attaining, the standard”) (hereinafter referred to as “September 1992 Calcagni memorandum”). ------- 4 requirements are the contingency measure requirements of section. 172(c) (9) and section 182(c)(9). The EPA has previously interpreted the contingency measure requirement of section 172(c) (9) as no longer being applicable once an area has attained the standard since those “contingency measures are directed at ensuring RFP and attainment by the applicable date” (57 FR 13564; . September. 4, 1992 Calcagni memorandum). Similarly, as the section 182 (C) (9) contingency measures are linked with the RFP requirements of section 182(b) (1) and 182(c) (2), the requirement of section 182(c) (9) no longer applies once an area has attained the standard. Other requirements related to the attainment demonstration and RFP provisions include: (1) the section 182 Cc) (5) requirement regarding the submission of a demonstration as to whether various parameters related to transportation “are consistent with those used for the area’s demonstration of attainment”; (2) the section 182(g) requirements concerning milestones that are based on the section 182(b) (1) and 182(c) (2) (B) and (C) submissions; and (3) the elements of the section 182 (d) (1) (A) requirement for SIP revisions identifying and adopting transportation control strategies tO achieve reductions in motor vehicle emissions that relate to the RFP requirements of section 182(b) (1) (A) and ]82(c)(2)(B). Inasmuch as each of these requirements is linked with the attainment demonstration or RFP requirements of section .182 (b) (1) or 182(c) (2), if an area is not subject to the requirement to submit the underlying attainment demonstration or RFP plan, it need not ‘ submit the related SIP revision either. The EPA emphasizes that this interpretation does not xtend to requirements of subpart 2 that are not linked by the language of the Act with the attainment demonstration and RFP requirements. For example, this interpretation does not apply to requirements such as VOC RACT requirements, for which, in contrast to NOx RACT requirements.under section 182(f), the Act does not establish a mechanism to grant exemptions if an area has attained the standard, or to the requirements to submit SIP revisions providing for basic or enhanced I/M programs. The EPA also emphasizes that the lack of a, requirement to submit SIP revisions concerning these RFP, attainment demonstration, and other related requirements exists only for as long as a nonattainment area continues to monitor attainment of the standard. If such an area experiences a violation of the NAAQS, the basis for the requirements not being applicable would no longer exist. Therefore, the area would again be subject to a requirement to submit the pertinent SIP revision or revisions and would need to address those requirements. Thus, a determination that an area need ’not submit one of the SIP submittals amounts to no more than a suspension of the requirement for so long as the area continues to attain the standard. If EPA ultimately ------- 5 redesignates the area to attainment, then the area will be entirely relieved of the ;e requirements to the extent the maintenance plan for the area does not rely on them. Also, EPA notes that: in the case of a multistate nonattairunent area, the entire multistate nonattaizunent area must have monitoring data demonstrating attainment for the SIP - -. submission requirements t:o be suspended. Thus, the requirements applicable to one part of such an area may not be suspended on the basis of a determination only that that part of the - nonattaimnent area is monitoring attainment. The EPA’S Regional Offices should coordinate these determinations for any multistate nonattaininent areas that involve more than one Region. III. Process - The EPA-Regi nal Offices will conduct individual rulemakings concerning areas that have 3 consecutive. years of clean air quality monitoring data demonstrating attainment of the ozone standard to make binding determinations that the areas have attained the standard and need not make whichever of the SIP revisions discussed above are pertinent . Since EPA has the relevant air quality data in its possession, no submission from a State would be required to initiate this process. However, a State would be free to submit a petition to the appropriate EPA Regional Office to notify the office that it believes that a ertain nonattainment area is eligible for these determinations n the basis of monitored attainment of the ozone NAAQS. As noted above 1 these determinations would be conting t on the existence of monitoring data for the areas that continue to demonstrate attainment. If EPA subsequently determines that an area has violated the standard, the basis for the determination that the area need not make the pertinent SIP revisions would no longer exist. The EPA would notify the State of that determination and would also provide notice to the public in the Federal Register . Such a determination would mean that the area i zould thereafter have to address the pertinent SIP requirements within a reasonable amount of time, which EPA would establish taking into account the individual circumstances surrounding the particular SIP submissions at issue. The State must continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the area. The air quality data relied upon for the above determinations must be consistent with 40 CFR part 58 requirements and other relevant EPA guidance and recorded in EPA’S Aerometric Information Retrieval System (AIRS). Determinations made b ’ EPA in accordance with this interpretation .would not shield an area from EPA action to require emission reductions from sources in the area where there ------- 6 is evidence, such as photochemical grid modeling, showing that emissions from sources in the area contribute significantly to nonattainment in, or interfere with maintenance by, other nonattainment are s. The EPA has authority under the Act (section 110 (a) (2) (D) In the case of areas in other States and section 110(a) (2) (A) in the case of intzastate areas) to require emissions reductions if necessary and appropriate to deal with transport situations. IV. Consequences for Redesignations. Sanctions, and Conformity Determinations made by EPA that an area has attained the NAAQS and need not make one or more of the SIP submissions discussed above is not equivalent to the redesignation of the area to attainment. Attainment of the standard is only one of the criteria set forth in section 107(d) (3) (E) that must be satisfied for an area to be redesignated to attainment. To be redesignated, the State must submit and receive full approval of a redesignation request for the area that satisfies all of the crite ria of that section, including the requirement of a demonstration that the improvement in the area’s air quality is - due to permanent and enforceable reductions, and the requirements that the area have a fully-approved SIP which meets all of the applicable requirements under section 110 and part D, and a fully—approved maintenance plan. If an area for which the determination pf attainment is made has submitted or subsequently submits a redesignation- request, the SIP submissions discussed in this memorandum would not be required for the area’s redesignation request to be approved since they would no longer be considered applicable requirements under section 107(d)(3)(E). If the area violates the standard prior to final action on the redesignation request, however, not only would the requirements again become applicable, but the redesignation request could not be approved because the area would no longer meet the criterion of having attained the standard. As a consequence of a determination that an area has monitoring data demonstrating attainment of the ozone standard, thereby removing, at least temporarily, the pertinent SIP submittal requirements discussed above, any sanction clock that had been started as a consequence of the failure to make such a submission, the Incompleteness of such a submission, or the disapproval of such a submission, would be stopped since the deficiency that had led to the st rting of the clock would no longer exist. The issuance of a determination pursuant to this policy will have no immediate impact on the way conformity is demonstrated. Areas will continue to demonstrate conformity using the build/no— build test and less-than-1990 test (section 51.436-51.446 of the ------- 7 conformity rule), and the 15 percent SIP if one has been submitted (and attainment/RFP SIP, if one with a budget has been submitted). Since areas that are the subject of determinations pursuant to this policy will not be required to submit RPP or attainment demonstration SIP’S, those areas will not generally be in the control strategy period for confçrmity purposes (i.e., have a control strategy SIP ‘approved and build/no-build test no longer required) for so long as the area does not violate the standard. Those areas will not generally have approved budgets until a maintenance plan is approved as part of the approval of a redesignatjon request, so the build/no-build test and less—than— 1990 test—-in addition to any applicable submitted budgets—-will be required until then. (A maintenance plan budget does not apply for conformity purposes until the maintenance plan has been approved, except as provided by section 51.448(i) of the conformity rule (which applies to areas that are required to submit a 15 percent SIP but submit amaintenance plan instead).) If an area receiving a determination pursuant to this policy had previously submitted a 15 percent or attainment SIP, it may choose to withdraw the. submitted SIP through the submission of a letter from the Governor or his or her designee in order to eliminate the applicability of its motor vehicle emission budget for conformity purposes. This is because that area would not be subject to the 15 percent and attainment demonstration requirements of section 182(b)(l) for so long as the area continues to attain the standard. If the submitted SIP is not withdrawn, the budget in that submission will continue to pply for conformity purposes. If the submitted 15 percent or - ‘ attainment SIP is withdrawn, only the build/no—build and less- than-1990 tests would apply until a maintenance plan is approved. However, areas that are already demonstrating conformity to a submitted maintenance plan pursuant to section 51.448(i) may continue to do so, or may elect to withdraw the applicability of the submitted maintenance plan budget for conformity purposes until the maintenance plan is approved. The applicability may be withdrawn through the subcnission of a letter from the Governor or his or her designee. If the applicability of the submitted maintenance plan budget is withdrawn for conformity purposes, the build/no—build and less-than-1990 tests will apply until the maintenance plan is approved. For areas which receive a de,termination pursuant to this policy and whose conformity status has lapsed due to a failure to submit a 15 percent SIP or to the submission of an incomplete 15 percent SIP without a protective finding, the lapse imposed by section 51.448(b) and (c) (1) (ii) will be removed. However, the conformity status of the plan and TIP cannot be restored if ------- 8 conformity has lapsed for any other reason (e.g., failure to redetermine conformity by a certain date). If you have any questions, please feel free to call me o r Sally Shaver. The. contact: persons for this policy are Carla Oldham at (919) 541-3347 and Kathryn Sargeant at (313) 668—4441 for transportation conformity requirements. cc: Rob Brenner Alan Eckert Tom Helms Phil Lorang Rich Ossias Margo Oge Joe Paisie John Seitz • Sally Shav r Lydia Wegman Dick Wilson ------- Federal Register I Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1735 IFR Doc. 95—224 Filed 1—4—95; 8:45 am) SUMMARY: Today’s action revises the siumo cora sooo-a-i-c motor vehicle Inspection/Maintenance Program Recuirements final rule promulgateJ on November 5, 1992. EPA Department of the Army proposed these revisions on June 28. 1994, allowing stakeholders ample 32 CFR Parts 536 and 537 opportunity for review and comment, and is taking final action on the The Army Claims System revisions to include additions and AGENCY: Department of the’Army. DOD. modifications, regarding State ACTION: Final rule. Implementation Plan submissions for States with nonattainment areas that are SUMMARY: This document withdraws the in a position to redesignate to amendments to32 CFR Parts 536 and attainment. The revisions specify SIP 537, The Army Claims System; requirements only for areas that are published In the Federal Register subject to the basic Inspection! Monday. December 12, 1994 (59 FR Maintenance program requirement and 64016) end reinstates Parts 536 and 537 that otherwise qualify for redesignatlon as published in the Code of Federal from nonattainment to attainment for Regulations revised as of July 1, 1994. the carbon monoxide or ozone national Reasons for this rescission are ambient air quality standards. This rule dianges to legal references and other allows such areas to defer adoption and editorial changes. Publication of the implementation of some of the December 12, 1994 document as a Final otherwise applicable requirements Rule was premature. This document established in the original promulgation will not be resubmitted as a Final Rule of the Inspection/Maintenance rule, his until such time as all legal reviews have an appropriate time to take this action been completed and has been since the rule applies only to areas that authenticated at the Army Secretariat by virtue of their air quality .• ,. -. . .. classification are required to implement EFFECTIVEDAtE December 12 1994. , ,,.;: -a basic JIM program end that submit, and otherwise qualify for, a ADDRESSES: D I orM.S. ’Army Claims’,. redesignation request. Service, Building 4411. Llewellyn Ave., ATI’N: LTC Michael Millard, Fort EFFECTIVE DATE: The effective date of Meaae. Maryland 20755—5360, . -. this rule is Januaiy 5,1995. FOR FURTHER INFORMATION CoNTACT’. - ADDRESSES: Materials relevant to this rulemaking ore contained In Public Lit Michael Millard, (303) 677—7009, Dockt No. A—93—21, The docket Is Ext. 202 or the undersigned at (703). located at the Air Docket, room M—1500 325-6277. - (LE—131J, Waterside Mall SW.; ICSIUISth LI Denton, . v ’- .. ’ • c’ - Washington, DC 20840. The Docket may AimyF.derelfleglsferUaison Officer. be Inspected from 8am. to 4:30 p.m. on Accordingly, the amendmonts to 32 weekdays. A reasonable fee may be CFR parts 536 and 537 published charged for coping’docket material. December 12, 1994, at 59 FR 64016, are FOR FURTHER INFORMATION CONTACT: withdrawn and the text 0132 CFR parts Eugene J. Tierney, Office of Mobile 536 and 537 as published in the Code Sources, National Vehicle and Fuel of Federal Regulations revised as of July Emissions Laboratory. 2565 Plymouth 1, 1994. is reinstated. Road. Ann Arbor, Michigan, 48105. IFR Doc. 95—183 Filed 1—4—95: 8:45 am) (313) 665-4456. LUNO COVE 3?I0-08-M SUPPLEMENTARY INFORMATION: Section __________________________________ l07(d)(3)(E) of the Clean Air Act, as amended In 1990 (the Act), states that an ENVIRONMENTAL PROTECTION 11188 CLIfl be redesignated to attainment AGENCY if the following conditions are met: EPA has determined that the National 40 CFR Part 51 ambient air quality standards have been attained; EPA has fully approved the (F 6132 ’7j applicable implementation plan under RIN 2060-AE2I section 110(k); EPA has d termined that the improvement in air quality is due to InspectienI bintenance Program permanent and enforceable reductions Requh-einetts--Provlslons for in emissions due to the Implementation Redes lgnalion plan and other permanent and AGBIC1 Environmental Protection enforceable reductions; the State has Agency. met all applicable requirements of ACTION: Final rule. section 110 and part D; and. EPA has fully approved a maintenance plan for the area under section 175A of the Act. Section 175A in turn requires stales that submit a redesignatlon request to submit a plan, and any additional measures if necessary, for maintenance of the air quality standard, for at least a 10 year period following EPA’s final approval of the redesignation. It also requires the plan to include contingency provisions to ensure prompt correction of any violation of the standard which occurs after redesignation. The contingeney. measures must Include a provision requiring the state to implement measures which were contained in the State Implementation Plan (SIP) piior to redesignation as an attainment area. Today’s action revises subpart S of part 51 of title 40 of the Code of Federal Regulations (subpart S) to address Inspection/Maintenance (T/M) program requirements for areas subject to the Act’s basic JIM requirements and iliiii otherwise would qualify for and ultimately obtain approval by EPA of redesignation requests to attainment. This final rule adds a new paragraph to the regulation pertaining to State Implementation Plan (SIP) submissions for areas required to implement a basic tIM program that are submitting and otherwise qualify for approval of a redesignation request. Areas subject to basic J/M fall into several categories. There are basic areas that will be submitting redesignation requests that do not currently have J/M programs, or have either a basic program implemented pursuant to the 1977 amendments to the Act or a basic program required lobe upgraded to meet the requirements of EPA’s T/M regulations. For purposes of !oday’s final rulemaking, EPA is using the word “upgraded” to refer to a basic tIM program that meets all the basic. JIM program requirements of the J/M rule. subpartS, part 51. title 40 of the Code of Federal Regulations In ndditio,i t’ pre-1990 Clean Air Art IIM prograuul policy. ‘l’his rule applies 01113’ tO ar ”ns that by virtue of their air qualiiv classification are required to im ilu uiuu.iiI a basic J/M program, and tl at sul,mil. and otherwise qualify for a redesignation request.Pursuani to sections 182(a)(2)(B)(i) and 182(b)(4) of the Act, basic l/M areas must submit a SIP revision that includes any “provisions necessary to priwicli : br .u vehicle inspection and maintenanre program” of no less stringency than either the program that was In the Sit’ at the time of passage of the Act or the minimum basic program requireninnis. whichever is more stringent. For purposes of this final rule EPA interprets the statutory language of I ------- Federal Register / Vol. 60. No. 3 / Thursday, January 5. 19fl5 I Rules and Regulations section 182(a)(2)(B)(i) and section 182(h)(4)as provi(hng a degree of flexibility compared with the statutory language In section l02(c)(3J, which requires enhanced JIM areas to submit eSIP revision “to provide for an enhanced program”. For areas that otherwise qualify for redesignation to attainment end ultimately obtain EPA approval to be redesignated. EPA is today amending Subpart S to allow such areas to be redesignated if they submit a SIP that contains.the following four elements: (i)’togal authority for a basic l/Mprcgiam (or an enhanced program, as defined in this final rule, if the state chooses to opt up), meeting all of the requirements of Subpart S such that Implementing regulations can be adopted without further legislation; (2) a request to place the l/M plan or upgrades, as defined in this rule, (as applicable) In the contingency measures portion of the maintenance plan upon redcsignation as described in the fourth element below; (3) a contingency measure to go into effect as soon as a - triggering event occurs, consisting of a commitment by the Governor or the Governor’s designee to adopt regulations to implement the llM program in response to the specified triggering event; and (4) a commitment that Includes an enforceable schedule for adopting end Implementing the J/M program, including appropriate milestones, In the event the contingency measure Is triggered (milestones shall be tinfined by states In terms of months since the triggering event). EPA believes hint for areas that otherwise qualify for rcdcsignatlon a SIP meeting these four rrquizements would satisfy the obligation to submit “provisions to provide” for a satisfactory JIM progrtun, os required by the statute. With these amend’ments the determination of whether a state fulfills the basic IIM SIP requirenients will depend, for the purposes of redesignation approval only, on whether the state meets the four requirements listed above. EPA believes that it is. permissible to Interpret the basic JIM requirement to provide this flexibility and that it should apply only for the limited purposo of considering a rettesignation request to attainment. Summary of Comments EPA iv ,xhi4 cusranents from the Natural Resources Defense Council (NRDC) opposing the proposal to mdrsigrsale an area as in attainment when suds an man has not yet submitted regrr?atiens for a basic TIM prowam. NRDC argues that the phrase “any provisions necessary” phi inly encompasses any anopted regulations needed to implement the program. NRDC argues that EPA ignores the impact of the word “ally” and ch iu,s that ongres .s used this terut to require that the State submit “all” that is necessary to put a basic l/M prograni in place. NRDC further argues that without adopted regulations a is incomplete an(l cannot be approved. EPA disagrees with NRDC’s comments. The plain language of the statute requires that each SIP Includo “any provisions necessary to provide for” the required JIM program. his EI’A’s view that what Is “necessory’ to provide for the required J/M program depends on the area in question. For areas which have attained the ambient standard with the benefit of only the current program, or no program at all. EPA does not believe it is “necessary” to revise or adopt new regulations and undertake other significant planning efforts which are not essentlpl fur clean cir, and which would not be Implemented after redesignation occuiied because they are not “necessary” for maintenance. For such areas that would otherwise be eligible for rottesignation to attnlnmrnit. EPA believes that a contingency plan that includes already enacted legislative, authorIty and provides for adoption of an J/M program on an expeditious schedule if the area develops a problem Is the only set of provisions necessary to provide for an 1/M program. Although for most purposes EPA will continue to Interpret “provisions necessary to provide for” a basic TIM program to require full adoption and expeditious fmplementatiQn of such a program it is appropriate, based on the flexible language provided in section 182(a)(2)(flui) and 182(b)(4) as compared with section 1U2(c)(3), to revise the SIP revision requirements applicable to basic TIM areas that otherwise qualify For, and ultimately receive, rodesignation. Contrary to NRDC’s assertions, a SIP resiim applicable to basic TIM areas that otherwise que lily for, and ultimately receive, redesigntition woul(l meet the minimum completeness criteria without adopted regulations. EPA promulgated criteria setting loilli the inliiiinum criteria itorescary for niiv subniittal to be consklered cornpleto. 40 CFR part 51, appendix V. I lowever, Ul’A recognizes that not all of the listed criteria are necessarily applirable to all of the various types of submissions which require a r.ornpktrnnss ikternsiiiation. Accordingly, 1 1’A interprets the completeness criteria to ripply only those criteria that are relevant to the particular types of .suhiiiissinns. i ‘r un (tmii )lcIe, 0 plnii 5%ll)lliiS iiuIl typically lutist supply the elmnr’nts necessary to comply with the pr.wsion of the CAA, including, among other things, specific enforceable measures. 40 CFR pert 51, appendix V. section 2.1(d). As discussed earlier, however. EPA believes that it may provide that adopted regulations are not necessary to meet (ho statutory requirements of sections 182(a)(2)(B)(i) and 182(b)(4) of the C/tA. EPA interprets these sections to provide that In some circumstances areas should be allowed to submit plans which lack specific enforceable measures, as long as the SIP includes provisions necessary (ci provide For the re4uired program. It makes little sense for Congress to provide such flex ihility under these sections, only to require that such submissIons be summarily rejected on the grounds of incompleteness. A reasonable reading of the statute would give effect to both provisions by permitting areas that otimrwisn qualiFy for, and iiltitiiale.lv receive, rodnsigiiuitkni to havo their rinlu’siguuut inn tequiests deterituii,i’d “cottipirte” If tIn, siiiniiissiuii cuntuti its “lo%’kimls imcossnr ’ to provide for” the TIM rogrnhII. ‘Thus, as long as cuiclu an area submits a SIP hint contnitis the four elements discussed in this title. EPA will (leem that submission “complete” only for the purposes ci determining whether on area seeking retlnsignnt icm has met the basic T/M requiri ’mcnts. NRDC also coitsinnuted that Cuugres: did trot intend the phrase ‘any provisions necessary’ to lustily lI inn” comuiitinnnt to adopt T/M regulations :il sonic later date. NRDC cites Nat ,,,uI Resources Defense Con ricil v. Enti: onnivu,:rd Prote’clion Agency, 22 F.3d 1125 (JJ.C. Cir. 1994) (“NIlIR ,v. EPA”) for Eu thier su1)pcurt of their argument. As discus cd in the proposal, in NPDCv. EPA, 22 F.3d 1125 (11. C. (ir 1994) the D. C. Court of Appea’s unTil that EPA did not have authority to construe section llo(k)(i) to authnri e con(iltiiinnl approval of an I/M coimniltal ,SIP that contains no sp’s lilt. aol istru u it lye tiirn’n ires. A pi u’tni ce of tIn’ ui’.e is I lint 1IM Ii ’ at ihiuu i,,sii ii is a it: rt’quuired to hia e fully ado 1 ,tu’d mli’s. I ii r ,iii i’m in enk,rjo ,I I’,; Ir.:lI t’ .1 I I SC 51 ia(su)tu) 1r’ro7ona flflflfl ltfljlm)Nlt ,rr ale, an .vcnni ,le of a riqiulied ‘tibiutitiot ( I , ,, ti, d l,iiii liii , ‘‘.1(1,1 n”tu’r ,iIitI 5 nil c i tI ,. •iiuijit.i. iu ’ rrjl ,ijn A , jut, , ii cii’ cu,,,s Iun un ml i ii liii are not in i i , ,, fq,i u’i u,i u sum’ e,uu inn! do net jnc liudp nthr’ ir, ti,uir.’I llu’i,i ldu’ I jflru! in II,s rnmj’lctcuii ”. ‘ rut.u iii cc Nuiiccinui Ijmj c ci Spat u,i”Itr ,,iIc. 40(111 ‘ u I • CI’di ,n’i 2 P (.1). I J ------- Federal Register I Vol. 60, No. 3 I Thursday, January 5, 1995 I Rules and Regulations 1737 today’s rule, EPA continues to Interpret section 172(c)(9) requires that Paperwork Reduction Act section 162 as generally requiring IIM contingency measures for Today’s rule places no Information programs to have fully adopted rules. nonatleinment plans “take effect in any i:ollcrtion or record-keeping b urihii nn However. EPA here is reinterpreting (he such case without further action by the respondents. Therefore, an information relevant statutory sections to permit an State or the Administrator.” Since 175A ,collection request has not been prepared exception to this general requirement contains no such requirement that the bnd submitted to the Office of for areas otherwise qualifying for contingency measures take effect Klanagciticnt m md Budget COMB) iumlrr redesignation to attainment. Based on without further action, it is clear that the Paperwork Reduction Art I P.S C this interpretation, the SIPs for states Congress did not intend to require 3 )1 rt srq. that otherwise qualify for redosignation contingency measures under section may receive full approval, not 175A to contain fully adopted programs. Judicial Review conditional approval under section If an area did not require adoption or Under section 307(l,)(i) ci the A I. ll0(K)(4).Il they contain legislative implementation elan tIM program in I PA finds Punt these reguintinuc an’ authority for, end a commitment to order to otherwise qualify to be national applicability. Acv:nrilingk. adopt, an t/M ro ram In their redesignated to attainment, EPA judicial review of this action Is available contingency p an. Thus, the court’s believes it would be a wasteful exercise only by the filing of a petition for relew holding in NRDC v. EPA is not a id Impbse needless costs to force states in the t)nite.d States Court of A ppenlc 1m pcated here. logo through full adoption of for the District olCohuinhia within ckt ithout these amendments, states regulations only to have.these ilays of puuh lii:ation of this ndkm in ilu’ that ale being redesignated to attainment would have to adopt a lull I! regulatIons used as a contingency Federal Regkter. M program for the purpose of obtaining measure once the redosignation is Administrative Designation and ful approval of their SIPs as meeting all approved. Regulatory Analysis In today’s action, it should be Under Executive Order 12866. (iM li applicable SIP requirements, which is a understood that, pursuant to ection 51735 (October 4, 1993)) the Agr ’nrv prerequisite for approval of a redesignation request. Once 175A(c). while EPA considers the must determine whether the regulau’rv redesignated, these areas could redesignatlon request, the state shall be acticrn Is “significant” and therpiore discontinue Implementation of this required to continue to meet all the subject to 0MB review end the program (assuming It was not needed Iquirements of this subpart. This requirements of the Executive Order. for maintenance of the ozone or CO includes the submission of another SIP The Order defines “significant standard) as long as it was converted to revision meeting the existing regulatory action” as one that Is hikel a contingency measure meeting all the requirements for fully adopted rules and to result in a rule that may: requirements of EPA redesignation the specific Implementation deadline po.icy. Section 175A(d) provides that applicable lathe area as required under (1) Have an annual effect on the each plan revision contain contingency 40 CFR 51.372 of the JIM rule. If the economy of $100 million or more or provisions necessary to assure that the state does not comply with these adversely affect in a material way tlu economy, a sector of the economy. - State will promptly correct any - requirements It shall be subject to productivity, competition, jobs. ii. violation of the standard which occurs sanctions pursuant to section 179. envIronment, public health or safeti. or after the redesignation of the area to Beduse the possibility for sanctions State, local, or tribal governments ui attainment. These provisions must exists, states which do not have a solid communities include a rem uirexnent that the state will basis for approval of the redesignation (2) Create a serious inconsistency nr implement a 1 measures which were request and maintenance plan shall otlmrwlse interfere with an action i:mken contained in the SIP for the area before proceed to fully prepare and plan to or planned by another agency: redesignatlon. There are four possible implement a basic tIM program that (3) Materially alter the budgetary scenarios under which an area can meets all the requirements of subpart S impact of entitlement, grants, user fees. submit a redesignadori request: (1) The SIP revision must demonstrate or loan programs or the rights and Areas without operating IIM programs; that the performance standard in either obligations of recipients thereof; or (2) areas with operating I/Mprograms 40 CFR 53.351 or 40 CFR 51.352 will be - (4) Raise novel legal or policy issues that continue operation without upgrades; (3) areas with operating l/M met using an evaluation date (rounded arising out of legal mandates, the to the nearest January for carbon President’s priorities, or the principles programs; and (4) areas with operating nionoxide and July for hydrocarbons) set forth in the Executive Order. [ FM programs that are discontinued. A letailed explanation of each scenario is seven yew-s after the trigger date. It has been determined that this rule Ln the proposal. Emission standards for vehicles subject is not a significant regulatory action NRDC commented that the CAA does to an 1M240 test may be phased in under the terms of Executive Order sot authorize conversion of I/M during the program but full standards 12866 and is, therefore exempt from programs to contingency measures and must be In effect for at least one 0MB review. This rule would only [ hat section 175A Imposes a mandatory.., complete test cycle before the end of the relieve states of some regulatory luty on an area that Is redesignated to five year perIod. All other requirements requirements, not add costs or otherwise rxntlnue the emission control programs - shall take effect withIn 24 months of the adversely affect the economy. the area adopted prior to redesignatlon. trigger date. Furthermore, a state may Pursuant to section 605(bf of the NRDC further argued that failure to not discontinue Implementation of an 1/ Regulatory Flexibility Act, 5 U.S.C. adopt slaUa s will result In more sb ,’ M program until the redeslgnatlon 605(b), the Administrator certifies that pollution. ..S .:;,. . ... - . request and malntenaqce plan (that does this rule will not have a significant EPA dlsagre&Sectlon 175Arequires not rely on reductions from tIM) are - economic impact one substantial that the state “puaupdy” Cwi t any finally approved. if the iedesignatlon number of small entities and, therolcue violation of the standard, but does not request Is approved, any sanctions not subject lathe requirement of a mandate that the contingency measures already Imposed, or any sanctions clock . Regulatory Impact Analysis. A smal! )e fully adopted programs. In contrast, already triggered, would be terminated, entity may include a small governmt...u ------- I. 1730 1 ederal Register / Vol. 60, No. 3 1 Thursday. January 5, 1995 I Rules and Regulations entity or jurisdiction. A small government jurisdiction is defined as “governments of cities, counties, towns. ,ownships,’vIllages. school districts, or spccinl districts, with a population of less than 50,000.” This certification is based on the fact that the IIM areas impacted by the rule do not meet the definition of a small government jurisdiction, that is. “governments of citics, counties, towns, townships. villages, school districts, or special iliatricts, with a population of loss than 50.000.” - List of Subjects in 40 CFR Part 51 Environmental protection. Administrative practice and procedure. Air pollution control. Carbon monoxide, intergovernmental relations. Lead, Motor vehide pollution. Nitrogen oxide. Ozone.i’articulate matter. Reporting and recordkeoping requirements. Sulfur Oxides. Volatile organic compounds. Dated: December 23, 1991. Carol M. Browner. Adn,inislrtrtor. For the reasons set out in the preamble part 51 of title 40 of the Code of Federal Regulations is amended to read as follows: PART 51—REQUIREMENTS FOR PREPARATIOIi, ADOPTION, AND SUBMI1TAL OF IMPLEMENTATION PLANS L The authority citation for part 51 is revised as follows: Autborfty 42 U.s. C. 7401(5)12). 7475(e). 7 502(e) and (b). 7503. 9601(8)11) and 7602. 2. Section 51.372 is amended by adding new paragraphs (c), (d) and (e) to read as follows: 51.372 State ImplementatIon plan submIssions. • • * * (c) Redesignalion requests. Any nonattainment area that EPA determines would otherwise qualify for - n’dosignation from nonattainment to — attainment shall receive full approval of a State Implementation Plan (SIP) submittal under sections 182(a)(2)(B) or l02(b)(4) if the submittal contains the fOllowIng elements: (1) Legal authority to implement a basic l/M program (or enhanced if the state chooses to opt up) as required by this subpart. The legislative authority far an UM program shall allow the adoption of implementing regulations without requiring further legislation. (21 A request to pLace the JIM plan (if no UM program is currently in place or if an (FM program has been terminated,) or the l/M upgrade (if the existing l/M program Is to continue without being upgraded) into the contingency measures portion of the maintenance plan upon redesignation. (3) A contingency measure consisting of a commitment by the Governor or the * Governor’s designee to adopt regulations to implement the required I! M program in response to a specified triggering event. Such contingency measures must be Implemented on the trigger date, which Is a date determined by the Stato to be no later than the date EPA notifies the state that it is in violation of tho ozone or carbon monoxide standard. (4) A commitment that induclns an enforceable schedule for adoption and Implementation of the i/M program. and appropriate milestones, including the items in paragraphs (a)(l)(ii) through (a)(l)(vii) of this section. In addition, the schedule shall Include the date for submission of a SiP meeting all of the requirements of this subpart. bxcluding schedule requirements. Schedule milestones shall be listed in months from the trigger date, and shall comply with the requirements of paragraph (e) of this section. SiP submission shall occur no more than 12 months alter the trigger date as specified by the State. (d) Basic areas continuing operation of IFM programs as part of their maintenance plan without implemented upgrades shall be assumed to be 80% as effective as an Implemented. upgraded version of the same IIM program design. unless a state can demonstrate using operating information that the t/M program Is more effective than the 80% level. (e) SIP submittals to correct violations. SIP submissions required. pursuant to a violation of the ambient ozone or CO standard (as discussed in § 5 1.372(c)) shall address all of the requirements of this subpart. The SIP shall demonstrate that performance standards in either § 51.351 or § 51.352 shall be met using an evaluation date (rounded to the nearest January [ or carbon monoxide and July for hydrocarbons) seven years after the trigger dale. Emission standards for vehicles subject to au 1M240 test may be phased in during the program but full standards must be in effect for at least one complete test cycle before the end of the 5-year period. All other requirements shall take effect within 24 months of the trigger date. 1’lio phase- in ellowaguc.es of § 51.373(L) of this subpart shall riot apply. (FR D cc. 95—254 Filed 1—4—95:8.45 aml m ILLInG coor 55 50-40-F 40 CFR Part 52 (PA32—1 -6966; FRL—5126- -1) Approval and Promulgation of Air Quality Implementation Plans; Commonwealth ci Pennsylvania Small Business Assistance Program AGENCY: Envitonuuiental Protection Agency (EPA). ACTiON: rinal rule. SUMMARY: EPA is approving a Stale lmpleiuieiitntion Plan (SIP) revision stubnnlted by the Commonwealth ol Pennsylvania. This revision establishes a Small Ihucinc’ss Stationary ouine Terhniuil and vimm,ai’idsui Cnmpliazu.e Assistance I’iograuuu (PR(X ’RAM). This SIP revision was sttl4nittcd by the State to satisfy the Fcdcrol mandate of the Clean Air Act (“the CM” or “the Act”) which lists specific pregratui (:rfteria to etusure thiul small businesses have access to the technical assistance and regulatory inlormplion necessary to comply with the CAA. The Intended effect or this action is to approve this SIP revision. This action is being taken under srctinn 110 of the CAA. DATES: This action will become eIlu’clhr March 6. 1995. unless edverse comments received on or in fore February 6, 1995, that adverse or cuilfrn comments vilI be submitted. If the effective dateis delayed. timely notire will be published in the Federal Register. ADCRESSES comments may be mnnilcd to Thomas j. Mastany. Director. Air. Radiation, and Toxics Division (3A’lOl)). IJ.S. Environmental Protection Agency. Region III, 841 Chestnut Building. PhiI delphia. Pennsylvania 191(11. Copies of the documents relevant to this action a i’e bvailable for public inspection during normal business hours at the Air. Radiation, and Toxirs Division. U.S. En ,ironmentah Prntcctioii Agency. Region HI. 841 Chestnut Building. Philadelphia. Pennsylvania 19107; Pennsylvania Department of Environmental Resources Bureau of Air Quality Control. P.O. Box 6468. 409 Market Street. harrisburg. i’ennsylvauin 17105. FOR FURTHER INFORMATION CONTACT: Makeba Morris. (215) 597—2923. SUPPLEMENTARY INFORMATION: Background I em pleiuucuut ut ion of time rov nuic of ilic CAA. will require regulation of ninny small imuuciui ssc’s SI) that dens I 1UIV utlain and nimntuuin the nationnl nmnimient air quality Stafl(lRTdS (NAAQ and reduce the eunission of air toxirs. ------- Q. RVP, Oxy & Misc. Fuels ------- Q. Reid VaDor Pressure (RVP). OxycTenated Fuels, and Miscellaneous Fuels Q.l. Approval and Promulgation of Implementation Plans; Massachusetts Ozone Attainment Plan; Control of Gasoline Volatility (Proposed Rule) 54 FR 7794 (Feb. 23, 1989) Q.2. Approval and Promulgation of Implementation Plans; Revision to the State of New Jersey Implementation Plan for Ozone (Proposed Rule) 54 FR 12654 (Mar. 28, 1989) Q.3. Approval and Promulgation of Implementation Plans; Revision to the State of New York Implementation Plan for Ozone (Proposed Rule) 54 FR 12656 (Mar. 28, 1989) Q.4. Connecticut and Rhode Island Ozone Attainment Plans; Control of Gasoline Volatility (Final Rule) 54 FR 23650 (June 2, 1989) Q.5. Approval and Promulgation of Implementation Plans; Revision to the State of New Jersey Implementation Plan for Ozone (Final Rule) 54 FR 25572 (June 16, 1989) Q.6. Approval and Promulgation of Implementation Plans; Revision to the State of New York Implementation Plan for Ozone (Final Rule) 54 FR 26030 (June 21, 1989) Q.7. Advisory Committee on reformulated Gasoline, Antiduniping and Oxygenated Gasoline - - Agreement in Principle Q.8. Section 211(m) SIP Revisions’ Potential Requirement that Gasoline Sold or Dispensed Outside the State’s Borders be Oxygenated - - Dec. 16, 1991 memo from Jonathan Martel Q.9. Oxygenated Gasoline Implementation Guidelines -- July 27, 1992 Q.10. Notice of Final Oxygenated Fuels Labelling Regulations Under Section 211(m) of the Clean Air Act as Amended, 57 FR 47769 (Oct. 20, 1992) Q.11. Memorandum from Region IV on Lowering Gasoline RVP Standards below 7.8 psi -- July 30, 1993 memo from Michael Horowitz Q.12. Requirements for Reduced RVP in State Maintenance Plans - - Nov. 8, 1993 memo from Michael Horowitz Q.13. Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Massachusetts; Substitution of the California Low Emission Vehicle Program for the Clean Fuel Fleet Program (Opt Out), 60 FR 6027 (Feb. 1, 1995) ------- Q.14. Potential Request from Colorado for Permanent Change in Denver’s Reid Vapor Pressure (RVP) Standard - - Apr. 4, 1995 memo from David Cole Q.15. Establishment of Control Periods under Section 211(m) of the Clean Air Act as Amended (undated) Q.16. Guidelines for Oxygenated Gasoline Credit under Section 211(m) of the Clean Air Act as Amended (undated) ------- Fédè e1 RegIster 7 Var 54. Nd 35 Tb Wa . , F b y 23, ‘t9 9 / Wó poie.,j Rulea ZO. In I Z1.4271 parapphs (a) and (b) somewhat shorter than that stated In revued to reed as zelIows I Z1.4200(g) of this pen while req Wring medical sr d dental reetdencje fld f 214273 Trade tec:ugcil—ldgtt an ovcrall love! a! educe Uoeal pursuit osteopathic internships and reeider je, that approz.znatcs the level required by as provided i.e I Z1.4270 (c) of this pen z (a) Siiopixroctfcepredomjnatg& - cowsee offered one standard quarter- they are ac eclited and approved in Except as provided In 21.4270(a), cr semstar buIe.: ° ‘ °! wth I 2L4 S(a) of this foo otes i.e and 7 of this part. ode hodty 38 U.S.C. 1788(b); Pob. L. 9947$) teicaicourses which Include iltop (3) ‘• . , (Mthort $8 U.S .C. i7! (b) Pub. L oa-aie ) practice as an Inte al part of the ... . .(UI):Consldertng the ndard class : . .‘. . course, will be nieaz xred ans bails 01: . sessions to be the sates as credit hoors (PR $7$Z PlJ.d - -ev 45 an). clock hem’s of attendance per .week. ,:.-‘. for the pm’pou of u..(ng the table In r . : This Includes such courses. mder the. ddtefiij . - ztzperv l s lonof&couegeort e.. * Where credit Ii a - j ENVIRONMENTAl. P#tOTECTION (Aotho3U.SC.37ua(a)i7 iu(. Pgb. . ... . ,.,,. . . - (b) Thez ’ sbcgtozclasv$,om -‘ . hom’s .TheVAtreat, - - .. . and7afthspanstecbnlcilco rseIn ‘ Pt PdeetlftheTe1Iát: ;Mhuset ;• !egulerly,clwduledste P Iai CoflWoI.( fnsfructlonconsfltgtqi more thai 50 . -s ‘ iesalonper eqatealent P ent uf the required hours per week, week, the VA wlfl’ese . wifl be eüured on the basis of clock. valent thdlt I r V uOfl:. hams of neF onalaaets1 L : .. includes sic theciterta of I 214270(c) of - . Le . o university , the criterIa of footnote S of that .‘ ‘to . . * - F. es NI .. . .• .. -thu . ‘thIVA ‘accordix ,: . . . •(fl(21 0 s.evuoL . - 4 - reasonawe furmer progress tOwa . - , -.- —. . - ... .. I • ? • • . lM 1S L .1._J . I ’ . . J . ..:. . ii iia i ji weceOng. au w’ss: ‘. U.. -. qxpeA4tlou4yu practIcable.. rhd- .‘ .. • .......... . ia.. under the Clean Air Act- . • .. . td) ( ‘ s Or mare. ‘bai’sa Comments must be recifved en 1n1214270(C)Of .. Ma r 1999 . 5 h a lrtT Comments may be mailed t of aiQWI 0Ofl*lieuav i • , • __ contaIned . , wuii r. 1llW, MIrVvLOr . ‘SI . . .. I 5WU38 5 fr ” 1 ’ 5 U 109 •. )4 goment Division. Room 2311., J .’ Iinotmeasuredana’ FBBoston.MA(rzso ’. wifl 15 51 5fl S Copies of the ttd A s r - ‘ ivalustico are abeilable far public....’. I . .. inspection during normal busthàshour.. of ac I. . ;• , . . .... . - • at. the ivt,onmentaI Protection iency. wtthou i ore’ , ‘‘ ‘ “ ! b I j, . ‘ - i Roo j, pj(y4 .J iIds ’.s. o’ • üalgned bya school when the cause. (AnthcØ $8 U .&Ci7U8(b )i Peh L a9475) Baeton , .MA and the DIvision acofth.foflowtng .“. : AfrQuali Con olMaauachuestts.. j’ :. (lli)TheVAwfllusethelutelhaizru .:r DepartmentofEnvlrunin .ntalQaality m C cacen ksufflc1wt r.. camputed tn paragraph (1)(IXI) of ihls” . . ig1needng. On! Winter St et.! 8tl1 . : , secttoutodate nsthtrak ngtime .‘. Floor,Bston ,MAO21OI. • .. •. . ., .. •.... .:. , . .. . , . based upon th. measurement criteria pca cuamen uáoJlraAltofs CONTACr. • ... . . . . .. found hi * AVO(c) of thfsp .. . . Peter Rqerty (617) 565-3224 . F1 835- (I) The VA will determine frl . lng CMthorl n 38 U.S.C 17e8M Pub. L. w arS). . .. . . for those week..by using the table. • in I 2L4V5 f 8 1 k W’L mITARY PiPU AY,Qor On Jui3’ I I21.4c}ofthIs$riwithout : . I. . adjustment when the published 1 j. . (‘ j -..... .. . . from the Commissioner of • scm’edltlng standards of the ‘ameditig f*UflI pV 5C9 1 ,.b’. , 5, . . Massachusetts Department of. ency that acciedlt the obaree or the - m.siutit “ Environmental Quality Engineering aUonal Institution off ering the’ (a) Me or! and o!enWJ rosidenolqs (DEQE) that would add anew section to us permit a class seu1c which I. and ockopathlchiinniahtpe . . egulation sio QIR 7 2(12). lit, new ------- g.,c€ raqw , that no p.r,or shall saIl (1) if EPA h. t j . Sec on fl1(c)(4 )( c the A or supply z so I e frmn a bu.fc pkntor on Ita propoe RVP reg’Jlac1 so that aett .L ’ g forth the C tan 3 term mel havtit,ga Reid Vapor Ptessu there sr fed p gmp of state which an cc uo to federal Weate Than 9.0 pounds pe’ aq ore Inch . preem tfo of state regJ j (psi) frorn May I through Septe be, IS (2) If EPA has takes and occur, ltajes bginntrjg i and on th8 each there La federal ec Eãther A Stale mi — Year thartaft . Th rev 1on also UZ a cøuid occt w•lthIn the a o( no(oe t cl, reiises reg Jatj 320 CMR 7LXI to add frame a tic , for a1 EPA appr v’aI CCD CIor probjbiu rnp,c defi ifie for “bo& planta and of thi, SiP f add v La a ot vth , g’so1fáe , . 8ect1 2 12 cK4)fA) of the Act b awtor vehlcta . if an appLica 0 ke y - “Rofd Vapor . ...: dnsai btr,g fe,k j etzthorfty, mPIR 1 Q@ PZ n h State da t. • ‘ ‘.• • statfl . . .•, - . . ,. . . .4 .c . sectio n hOse pteWdt.. The ____ 4 t .8SCk ____ Co ., , —. • __• —.y — a. ...• ___ ‘WseC . n — • . .____ — . — the eatiansi owi . s ad v____ I; 1 ra a4th :: • a f actct - aCe the c e1 - It doeinot t tnf . _________ • • 3 am•I qu. &sg. ------- FEB 28 ‘89 13:e4 FF RTP-RQMD — 6 .•. Federal / ü N i5T/ Thursday. Fébkuar 23 1989 1 Proposed ziles . •rss mdca line. Rm nin louei era emlssloiii sh tjaU will ill cxist ncceuiLa lnj thee the 8 solLne tank and fuel Byste of other easure. . that occur while a ca Is beuxg dnven achieve attainment. Even If EPA does. A Is proposing to appro, this. end which result from en overload of the promulgate an RVP re iilaUoa.rsqu1rthg revision to the MSSSachusetts Ozone Po!avscon ’o 1 system or escape . oont ’oI to 10.5 psi In 1989, the State .. Stats Implementation Plan to contiul ‘ “i ., . . . :‘ regulation will s t ill provide add tIonaI S ’!° ‘ “ the . i av e u&S LI -. 1 eductjon , No otiicr easurca a ai understandIng that the state will rivise . r easona e - - for Implementation j I the test method sect o of tb regulation I r could provide su cIent I pilor to flnal Agency ctlau. EPAT also nt pivpeslngto make a finding that thLe s : . I revision meets th qutrementi of at snd Invc edIn findings. fle-i RIP £MUUthllIlttI hasi -. redsctiai lofVOCaL basis ñãdzI.980 • BàèdonEPA’s ‘ I —e.. . “ auMuAav This documeàt prqpae that a tolerance e established fotresideat : of the fw gtcfd imIn” the ehortfa lLArO soøab le-. - cthy1phoiphoJ1z oronther w,. ; : level of ItM euhanomzeüt codid rodu&. stat* must revfsâthe test methoa agricultural commodity gIna The .n additional sesisslon reduction. ‘ section La curS the prubism with proposed regulation to establish a ------- 12654 Federal Register I Vol. 54, No. 58 / Tuesday. March 28, 1989 / Proposed Rules / ‘ 1 ari’,i without e’Iimin.itii g the acccimmodative SIP For the area Proposed Rulemaking Action I’SEPA proposes to approve the ACS for Admiral fur the above cited reasons. but to remove the accommodative SIP for Knox County for the duration of the variance. Public comment is solicited on the proposed SIP revision and on USEPA’s proposed approval of it. Comments received by the date indicated above will be considered in the development of USEPA’s final rulemaking action. Under 5 U.S.C. 605(b), the Administrator has certified that SIP approvals do not have a significant economic impact on a substantial number of small entities. (See 46 FR 8709). The Office of Management and Budget has exempted this rule from the requirements of section 3 of Executive Order 12291. List of Subjects in 40 CFR Part 52 Air pollution control. Carbon monoxide. Environmental Protection. Hydrocarbons. Incorporation by “iference, Intergovernmental relations, rone. Authority: 42 U S.C. 7401-7642 Dated: June 30, 1987. vdlda s V. Adamkuz, RegionolAdministrziior. Editorial note: This document was received at the Office of the Federal Register on March 23, 1989. IFR Doc. 89—7316 Filed 3—27—89; 8.45 aml BILUNG COCE 6560-50-U 40 CFR Part 52 IReglon II Docket No. 94; FR-3543—91 Approval and Promulgation of Implementation Plans; Revision to the State of NewJersey Implementation Plan for Ozone AGENCY: Environmental Protection Agency. ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA) is today announcing that it is proposing to approve a request by New Jersey to revise its State Implementation Plan (SIP) for attainment of the ozone standard.This revision will reduce emissions of volatile organic compounds from line by reducing the Reid Vapor ;ure (RVP) of gasoline. The ded effect of this action is to make - . .. inable further progress towards atiainment of the ozone standard as expeditiously as practicable as rt quirt’d under the Clean Air Act. DATE: Comments must be received by April 27, 1989. ADDRESSE8. All comments should be addressed to: Mr. William J Muszynski. P.E.. Acting Regional Administrator, Environmental Protection Agency. Region II Office. 26 Federal Plaza. New York. New York 10278. Copies of the State submittal are available at the following addresses for inspection during normal business hours: Environmental Protection Agency. Region II Office. Air Program Branch. 26 Federal Plaza. Room 1005. New York. New York 10278 New Jersey Department of Environmental Protection Division of Environmental Quality Bureau of Air Pollution Control 401 East State Street, Trenton. New Jersey 08625. FOR FURThER INFORMATION CONTACT’. Mr. Raymond Werner. Acting Chief. Air Programs Branch. Environmental Protection Agency, 28 Federal Plaza. Room 1005, New York. New York 10278.’ (212) 264—2517. SUPPlEMENTARY INFORMATION On February 3.1989, EPA received a SIP revision from the Commissioner of the New Jersey Department of Environmental Protection (NJDEP) that would add a new Subchapter 25 to Chapter 27. Title 7 of the New Jersey Administrative Code. Subchapter 25. entitled “Control and Prohibition of Air Pollution by Vehicular Fuels.” prohibits persons from selling or supplying gasoline from a bulk plant or terminal having a Reid Vapor Pressure (RVP) greater than 9.0 pounds per square inch (psi) from May I through September 15 beginning in 1989 and continuing each year thereafter. Background On November 12. 1987, the Commissioners of the Northeast States for Coordinated Air Use Management (NESCAUM) signed a Memorandum of Understanding expressing their intention to reduce the RVP of gasoline to 10.0 psi starting in the summer of 1988 and to 9.0 ps I in the summer of 1989 and continuing every ozone season thereafter. Many states, including New Jersey. experienced delays in adopting necessary regulations and did not reduce RVP to 10.0 psi in the summer of 1988. New Jersey is. therefore, limiting RVP to 9.0 psi from May 1 to September 15 starting in 1989, and continuing each year thereafter. New Jersey adopted its RVP regulation on January 27, 1989 and submitted it to EPA as a SIP revision on the same date. EPA published a notice of final rulemaking on March 22. 1989 (54 FR 11868) which also requires the control of RVP The EPA rule calls for the control of the volatility of gasoline nationally. The rule requires that in the Northeast, the standard will be 10.5 psi beginning in 1989. The Federal standard will be enforced each year beginning June 1 (for retail users and other end users of gasoline) or May I (for all other points in the distribution system) except in 1989 when enforcement will begin 100 days and 70 days (respectively) after the publication date of the final rule. Enforcement ends at all points in the system on September 16 of each year The EPA regulation would normally preempt the state provision under section 211(c)(4) of the Clean Air Act (the Act). However, section 211(c)(4)(C) of the Act provides for approval of state control of fuel or fuel additives if the control is part of the SIP and is necessary to achieve the primary or secondary national ambient-air quality standard (NAAQS) for which the plan is in effect. Criteria for Approval Section 211(c)(4)(A) of the Act, in describing Federal preemption authority, states: ‘ Except as otherwise provided in subparagraph (B) or (C), no State (or political subdivision thereofl may prescribe or attempt to enforce, for the purposes of motor vehicle emission control, any control or prohibition respecting use of a fuel or fuel additive in a motor vehicle or motor vehicle engine—(i) if the Administrator has found that no control or prohibition under paragraph (I) is necessary and has published his finding in the Federal Register, or (ii) if the Administrator has prescribed under paragraph (1) a control prohibition applicable to such fuel or fuel additive, unless [ the) State prohibition or control is identical to the prohibition or control prescribed by the Administrator.” Thus in light of the new Federal volatility rule, the state control would normally be preempted. However, even though preemption has occurred, EPA may still approve certain state provision for limits on RVP of fuel where a finding under section 211(c)(4) is made which would authorize EPA approval and, thus, eliminate the preemption problem. As set forth below. section 211 (c)(4)(C) authorizes EPA to approve into the SIP a state.adopted fuel control measure that has otherwise been preempted by EPA action if EPA finds that the state control “is necessary to achieve” the standard that the SIP implements. ------- Federal Register I Vol. 54, No.58 / Tuesday. March 28. 1989 I Proposed Rules 12655 Section 211(c)(4)(C) of the Act, in setting forth the circumstances under which an exception to Federdl preemption of state regulation may occur. states: ‘A State may prescribe and enforce, for purposes of motor vehicle emission control, a control or prohibition respecting the use of a fuel or fuel additive in a motor vehicle or motor vehicle engine if an applicable implementation plan for such State under section 110 so provides. The administrator may approve such provision in an implementation plan, or promulgate an implementation plan containing such a provision, only if he finds that the State control or prohibition is necessary to achieve the national primary or secondary ambient air quality standard which the plan implements.” In the Federal Register discussion of EPA’s approval of a state oxygenated fuels program in the Maricopa County, Arizona SIP. EPA interpreted this language as requiring the Agency to find that a fuel control requirement was essential to achieve timely attainment of the primary standard for carbon monoxide. EPA said further that a fuel control measure may be “necessary” for timely attainment if no other measures that would bring about timely attainment exist, or if such other measures exist and are technically possible to implement, but are unreasonable or impracticable. Otherwise, no fuel control would ever be “necessary.” since for any area there is at least one measure—namely, required shutdowns and prohibitions on driving—that would result in timely attainment of the NAAQS. It is doubtful that Congress would have intended to bar EPA from ,pproving State fuel controls into a SIP based on the availability of soch drastic alternatives.’ Evaluation of How the New Jersey Revision Satisfies the “Necessary” Criterion In its 1982 SIP. New Jersey estimated that emissions of volatile organic compounds (VOC8) would need to be reduced by 59 percent from 1980 levels in order to attain the ozone standard in the New Jersey portion of the New Jersey/New York/Connecticut Air Quality Control Region (AQCR) by 1987. This percent reduction was estimated to be equivalent to 252,800 tons per year (tpy) of VOCs. EPA has reviewed the progress the State has made in achieving these emission reductions and determined’that the State has only achieved a 39.8 percent reduction from ‘Federal Register Augusi I. 1988. 53 FR 30220. 30228 1980 levels: a reduction of 82,330 tpy identified in the SIP as necessary to attain the standard has yet to be achieved. The reasons for these shortfalls are varied and include increased RVP in gasoline. inability to implement certain measures, higher than anticipated growth in vehicle miles traveled, less than anticipated effectiveness of the inspection and maintenance program, and the finding that some of the measures the State committed to in 1982 are not reasonably available. The New Jersey submittal concludes that by lowering RVP to 9.0 psi, VOC emission reductions of approximately 24.000 tpy would be obtained statewide, with 13,400 tpy of the reduction occurring in the New Jersey/New York/ Connecticut AQCR. The quantity of this reduction was derived using the AP-42 emission factors for storage and transfer of gasoline and from the EPA MOBILE3 emission factor model for motor vehicle emissions. This estimate may understate the actual reductions resulting from RVP controls because it does not include the emissions reductions that would result from decreased running losses associated with lower volatility gasoline. Running losses are emissions from the gasoline tank and fuel system that occur while a car is being driven and which overload the evaporative control system or escape through the filler cap. This 24.000 tpy reduction represents nearly 8 percent of the State’s total annual VOC inventory and 19 percent of the ozone season VOC inventory. On a worst case basis, considering hot weather (95 degrees Fahrenheit) and longer trip lengths, the reduction in VOC emissions provided by RVP control could be as high as 63 percent. Using information available in the New Jersey SIP and Reasonable Further Progress Report for 1987. along with supplemental information submitted by the State, EPA determined that New Jersey has only achieved a 39.8 percent reduction from 1980 levels in the New Jersey/New York/Connecticut AQCR. This translates to at least a 31.9 percent reduction from the 1987 inventory. It is also Important to recognize that the 59 percent emission reduction that guided New Jersey’s selection of control measures has proven to be too low. EPA’s experience with Regional Oxidant Model runs for the Northeast indicates that a VOC emission reduction on the order of at least 75 percent from 1980 levels is needed for attainment of the ozone standard. Under this scenario, the emission reductions needed for attainment of the ozone standard translate to at least a 588 percent reduction from the 1987 invei tory. or 68.556 tpy in addition to the 252.800 tpy that has been identified in the Sip The VOC strategies identified by the State as having the greatest potential for significant future VOC reductions that have not been implemented are: Measwe Reduc Percent Reduong RVP from 11 5 tO 90 ._ ._...... Arcflitectwal Coating. ... .. Lower Exclusion Rates .... Barge/Tanker Loading.... .... Additional Consumer/Corn’ meccial Solvent COntrOl Automobile Refinishing t /M Enhancements.. .... ... .._.. Total ... 13,400 9,650 20.100 3.900 6.030 3.020 10,800 66,700 52 ‘37 75. ‘1 5 ‘23 ‘12 4 1 258 The potential combined reductions from other categories suggested by EPA for examination by other NESCALJM states. If found practicable. may provide an additional 0.6 percent emission. reduction. This would yield a total reduction of 26.4 percent if all were 100 percent effective. There would still be at least a 5.5 percent VOC emission reduction shortfalL By reducing RVP to 9.0 psi instead of 10.5 psi, New Jersey wuld be able to obtain’additlonal reductions of approximately 5.896 tpy. Therefore, even with EPA’s RVP regulation requiring control to 10.5 psi in 1989, the State regulation will still have a significant impact. It will provide, approximately, an additional 2.3 percent reduction per year beyond the EPA reduction. Thus, New Jersey’s RVP program appears to meet the appropriate test of being “necessary” to achieve attainment of the ozone standard. The fact that the State RVP regulation might not by itself fill the remaining shortfall and hence by itself achieve the standard does not mean the rule would not be “necessary” to achieve the standard within the meaning of section 211(c)(4)(C). EPA believes that If Congress had intended EPA to approve a state fuel-content rule only if it were necessary and sufficient to achieve the standard, then it would ‘Many solvents and coatings cannot be fully re- formulated or replaced and, because they we area soisca enessions, cannot be effectively captured and controlled. Based upon New Jersey’s expen’ once, only 20 percent of these emissions reductions may be acfiievatile m the foreseeable Mite. Howev- er, this table assumes 100 percent effectiveness based upon the State’s esbmate. There edl be en additional 14,960 ry VOC emissions reduction shortfall for these meentes based upon a 20 per- cent off octiveness essiarçflon. to delays caused by a safety study being conducted by the U.S. Coast Guard. it wilt be at least two years before any emission reductions can be obtained throu i itwi measte. ------- 12656 Federal Register / Vol. 54. No. 58 I Tuesday. March 28. 1989 / Proposed Rules have used that language in section 211(c)(4)(C). EPA believes that the “necessary to achieve” standard must be interpreted to apply to measures which are needed to reduce ambient levels (thus bringing the area closer to achieving the NAAQS) when no other reasonable measures are available to achieve this reduction. A contrary application of “necessary to achieve” in this situation would mean that measures which result in significantly improved air quality are nonetheless unacceptable (even though no other reasonable measures are available) merely because they are insufficIent to themselves provide the reductions necessary to achieve attainment of the NAAQS. Enforceability In EPA ’s review for the enforceability of the New Jersey revision a problem with the test methods section was revealed. The State requires that testing shall be conducted in accordance with the American Society for Testing and Materials (ASTh4) method D—323. While method D—323 may represent the current ASTM dasignatlon of the approved test method for determining fuel volatility and, as such. Is the industry standard. EPA has adopted a final volatility rule which Includes a teat method based upon an ASTM proposed modification to method 0—323 known as Annex 2.The State has committed to revise this section In order to resolve this issue. EPA Is proposing to approve the State’s RVP controls with the understanding that the State must revise the test methods section to indude the EPA recognized methods. EPA Is confident that the State will pursue this course of action because the State has included method D—323 in its regulation already. Moreover, the State interprets this portion of the regulation to mea that additions to method 0-323. such as Annex 2. will be incorporated into New lersey’s enforcement procedures upon finalization by ASTM. Conclusion EPA is proposing to approve this revision to the New Jersey Ozone State Implementation Plan to control gasoline volatility with the understanding that the State will revise the test method section of the regulation. EPA is also proposing to make a finding that this SIP revision meets the requirements of section 211(c)(4)(C) of the Act for an exception to federal preemption. This rmding is required since EPA has finalized national volatility standards. gPA Is soliciting public comments on its proposed action. Comments will be considered before taking final action. Interested parties may participate in the federal rulemaking procedure by submitting written comments to the address noted at the beginning of todays notice. This notice is issued as required by section 110 of the Clean Air Act as amended. The Administrator’s decision regarding the approval of this plan revision is based on its meeting the requirements of section 110 of the Clean Air Act, and 40 CFR Part 51. Under 6 US.C. section 005(b).! certify that this SIP revision will not have a significant economic impact on a substantial number of .mall entities. (See 48 FR 8709) The Office of Management and Budget has exempted this rule from the requirements of section 3 of Executive Order 12291. List of Subjects in 40 CFR Part 52 Air pollution control. Hydrocarbons. Ozone. AuthosItT 42 U.8.C. 7481-1642. Date March 24.1989. William J. Mussynsid, Acth igflegJonalAdminis tr eeor. [ FR Don. 89-7317 FIled 3-V-aR 8.45 am) 00CC MNIOW 40 CFR Part 52 (Region U Dodist No.93; FRL-3543-$l Approval and Promulgation of Implementation Ptans Revision to the State of New York Implementat Ion Plan for Ozone AGENCY’. Environmental Protection Agency. ACTIOM Proposed rule. SUMMARY: The Environmental Protection Agency (EPA) is today announcing that it is proposing to approve a request by New York to revise Its State Implementation Plan (SIP) for attajiunent of the ozone standard. This revision will reduce emissions of volatile organic compounds from gasoline by reducing the Reid Vapor Pressure (RVP] of gasoline. The intended effect of this action Is to make reasonable further progress towards attainment of the ozone standard as expeditiously as practicable as required under the Clean Air Act. DATE Comments must be received by April 27, 1989. ADDRESSES: All comments should be addressed to: Mr. William J. MuszynskL P.E.. Acting Regional Administrator. Environmental Protection Agency. Region 11 Office. 28 Federal Plaza. New York. New York 10278. Copies of the State submittal are available at the following addresses los inspection during normal business hours: Environmental Protection Agency. Region II Office. Air Programs Branch, -. 26 Federal Plaza. Room 1005. New York. New York 10278. New York State Department of Environmental Conservation. Divisi of Air Resources. 50 Wolf Road. Albany. New York 12233. FOR FURTHER INFORMATION CONTAC? Mr. Raymond Werner. Acting Chief. Air Programs Branch. Environmental Protection Agency. 28 Federal Plaza. Room 1005. New York. New York 10278, (212) 284—2517. SUPPLEMENTARY INFORMAT1O On February 6.1989. the Environmental Protection Agency (EPA) received a State Implementation Plan (SIP) revision from the Commissioner of the New York State Department of Environmental Conservation (NYSDEC) that would add a new regulation. Subpart 225-3. to Title 8 of the Official Compilation of Codes. Rules and Regulations of the State of New York. This regulation, entitled Tuel Composition and Use—Volatile Motor Puels, prohibits any person from selling or supplying from a bulk plant or terminal. 8asoHne having a Reid Vapor Pressure (RVPJ greater than 9.0 pounds per square inch (psi) from Mayl throug September15 beginning in 1989 and continuing each year thereafter. Background On November 12, 1987, the CommissIoners of the Northeast States for Coordinated Air Use Management (NESCAUM) signed a Memorandum of Understanding expressing their intention to reduce the RVP of gasoline to 10.0 psi starting in the summer of 19& and to 9.0 psi In the summer of 1989 and continuing every ozone season thereafter. Many states. including New York. experienced delays in adopting necessary regulations and did not reduce RVP to 10.0 psi in the summer of 1988. New York is. therefore. Limiting RVP (09.0 5l from May 1 to September 15 starting in 1989. and continuing each year thereafter. New York adopted its RVP regulation on December 5. 1988 ant submitted it to EPA as a SIP revision on January 31. 1989. EPA published a notice of final rulemaking on March 22. 1989 (54 FR 11888) which also requires the control ol RVP. The EPA rule calls for the control of the volatility of gasoline nationally. The rule requires that in the Northeast, the standard will be 10.5 psi beginning in 1989. The Federal standard wiU be ------- 12656 Federal Register / Vol. 54, No. 58 I Tuesday. March 28 , 1989 I Proposed Rules have used that language in section 211(c)(4)(C). EPA believes that the “necessary to achiev&’ standard must be interpreted to apply to measures which are needed to reduce ambient levels (thus bringing the area closer to achieving the NAAQS) when no other reasonable measures are available to achieve this reduction. A contrary application of “necessary to achieve” in this situation would mean that measures which result in significantly improved air quality are nonetheless unacceptable (even though no other reasonable measures are available) merely because they are insufficient to themselves provide the reductions necessary to achieve attainment of the NAAQS. Enforceability In EPA’s review for the enforceability of the New Jersey revision a problem with the test methods section was revealed. The State requires that testing shall be conducted in accordance with the American Society for Testing and Materials (AS11 ,1) method D -323. While method D-323 may represent the current ASTM designation of the approved test method for determining fuel volatility and, as such, is the industry standard. EPA has adopted a final volatility rule which includes a teat method based upon an ASTM proposed modification to method D—323 known as Annex 2. The State has committed to revise this section in order to resolve this issue. EPA is proposing to approve the State’s RVP controls with the understanding that the State must revise the test methods section to include the EPA recognized methods. EPA is confident that the Slate will pursue this course of action because the State has included method D—323 in its regulation already. Moreover, the State interprets this portion of the regulation to mean that additions to method D—323, such as Annex 2, will be incorporated into New Jersey’s enforcement procedures upon finalization by ASTM. Conclusion EPA is proposing to approve this revision to the New jersey Ozone State Implementation Plan to control gasoline volatility with the understanding that the State will revise the test method section of the regulation. EPA is also proposing to make a finding that this SIP revision meets the requirements of section 211(c)(4flCJ of the Act for an exception to federal preemption. This finding is required since EPA has finalized national volatility standards. EPA is soliciting public comments on its pro posed action. Comments will be considered before taking final action. Interested parties may participate in the federal rulemaking procedure by submitting written comments to the address noted at the beginning of today’s notice. This notice is issued as required by section 110 of the Clean Air Act, as amended. The Adnunistralor’s decision regarding the approval of this plan revision is based on its meeting the requirements of section 110 of the Clean Air Act, and 40 CFR Part Si. Under 5 US.C. section 605(b).! certify that this SIP revision will riot have a significant economic impact on a substantial number of small entities. (See 46 FR 8709) The Office of Management and Budget has exempted this rule from the requirements of section 3 of Executive Order 12291. List of Subjects in 40 CFR Part 52 Air pollution control. Hydrocarbons. Ozone. Authosfty 42 U.S.C 7401-1642. Deta March 24.1989. William J. Mussynaki, AclingRglonoiAdminisWjtor. (FR Doc. 89-7317 Filed 3-27-aR 8.45 am) LW COOC WO4G 40 CFR Pert 52 (Region N Docket No.93; F L-364541 Approval and Promulgation of ImplementatIon Ptans Revision to the State of New York Implementation Plan forOzone ACENCY. Environmental Protection Agency. ACTIOa Proposed rule. SUMMaRY ’. The Environmental Protection Agency (EPA) is today announcing that it is proposing to approve a request by New York to revije Its State Implementation Plan (SIP) for attainment of the ozone standard. This revision will reduce emissions of volatile organic compounds from gasoline by reducing the Reid Vapor Pressure (RVP) of gasoline. The intended effect of this action is to make reasonable further progress towards attainment of the ozone standard as expeditiously as practicable as required under the Clean Air Act. DATL Comments must be received by April 27, 1989. ADDRESSES: All comments should be addressed to: Mr. William J. Muszynski. P.E., Acting Regional Administrator. Environmental Protection Agency, Region II Office. 28 Federal Plaza. New York, New York 10278. Copies of the State submittal are available at the following addresses for inspection during normal business hours: Environmental Protection Agency, Region U Office. Air Programs Branch, 26 Federal Plaza, Room 1005, New York. New York 10278. New York State Department of Environmental Conservation. Division of Air Resources, 50 Wolf Road, Albany. New York 12233. FOR FURTHER INFORMATION CONTACP. Mr. Raymond Werner. Acting Chief. Air Programs Branch. Environmental Protection Agency. 26 Federal Plaza, Room 1005. New York. New York 10278, (212) 264—2517. SUPPt.EMENTARY INFORMATiO?C On February 8, 1989, the Environmental Protection Agency (EPA) received a State Implementation Plan (SIP) revision from the Commissioner of the New York State Department of Environmental Conservation (NYSDEC) that would addS a new regulation, Subpart 225—3, to Title 6 of the Official Compilation of Codes. Rules and Regulations of the State of New York. This regulation, entitled “Fuel Composition and Use—Volatile Motor Fuels,” prohibits any person from selling or supplying from a bulk plant or terminal, gasoline having a Reid Vapor Pressure’ (RVP) greater than 9.0 pounds per square inch (psi) from May I through September 15 begInning In 1989 and continuing each year thereafter. Background On November 12, 1987, the Commissioners of the Northeast States for Coordinated Air Use Management (NESCAUM) signed a Memorandum of Understanding expressing their intention’to reduce the RYP of gasoline to 10.0 psi starting in the summer of 1988 and to 9.0 psi In the summer of 1989 and continuing every ozone season thereafter. Many states, including New York, experienced delays in adopting necessary regulations and did not reduce RVP to 10.0 psi in the summer of 1988. New York is, therefore, limiting RVP to 9.0 psi from May l to September 15 starting in 1989, and continuing each year thereafter. New York adopted its RVP regulation on December 5. 1988 and submitted it to EPA as a SIP revision on January 31. 1989. EPA published a notice of final rulemaking on March 22,1989(54 FR 11868) which also requires the control o RVP. The EPA rule calls for the control of the volatility of gasoline nationally. The rule requires that in the Northeast, the standard will be 10.5 psi beginning in 1989, The Federal stand:ird will be ------- Federal Register I Vol. 54. No. 58 / Tuesday. March 28, 1989 / Proposed Rules 12657 enforced each year beginning June 1 (for retail users and other end users of gasoline) or May I (for all other points in the distribution system) except in 1989 when enforcement will begin 100 days and 70 days (respectively) after the publication date of the final rule. Enforcement ends at all poinis in the system on September 10 of each year. The EPA regulation would normally preempt the state provision under section 211(c)(4) of the Clean Air Act (the Act). However, section 211(c)(4)(C) of the Act provides for approval of state control of fuel or fuel additives if the control is part of the SIP and is necessary to achieve the primary or secondary national ambient air quality standard (NAAQS) for which the plan is in effect. Criteria for Approval Section 211(c)(4)(A) of the Act, in describing Federal preemption authority. states: “Except as otherwise provided in subparagraph (B) or (C), no State (or political subdivision thereof) may prescribe or attempt to enforce, for the purposes of motor vehicle emission control, any control or prohibition respecting use of a fuel or fuel additive In a motor vehicle or motor vehicle engine-.—(i) if the Administrator has found that no control or prohibition under paragraph (1) is necessary and - has published his finding in the Federal Register, or (ii) if the Administrator has prescribed under paragraph (1) a control prohibition applicable to such fuel or fuel additive, unless (the) State prohibition or control is identical to the prohibition or control prescribed by the Administrator.’ Thus in light of the new Federal volatility rule, the state control would normally be preempted. However, evefi where preemption has occurred. EPA may still approve certain state provisions for limits on RVP of fuel where a finding under section 211(c)(4)(C) is made which would authorize EPA approval and, thus. eliminate the preemption problem. As set forth below. section 211(c)(4)(C) authorizes EPA to approve into the SIP a - state-adopted fuel control measure that has otherwise been preempted by EPA action if EPA finds that the state control. “is necessary to achieve” the standard for which the SIP is in effect. Section 211(c)(4)(C) of the Act, in setting forth the cucumstances under which an exception to Federal preemption of state regulation may occur, states: ‘A State may prescribe and enforce, for purposes of motor vehicle emission control, a control or prohibition respecting the use of a fuel or fuel additive in a motor vehicle or motor vehicle engine if an applicable implementation plan for such State under section 110 so provides. The Administrator may approve such provision in an implementation plan, or promulgate an implementation plan containing such a provision, only if he finds that the State control or prohibition is necessary to achieve the national primary or secondary ambient air quality standard which the plan implements.” In the Federal Register discussion of EPA’s approval of a state oxygenated fuels program in the Maricopa County. Arizona SIP, EPA Interpreted this language as requiring the Agency to find that a fuel control requirement was essential to achieve timely attainment of the primary standard for carbon monoxide. EPA said further that a fuel control measure may be “necessary” for timely attainment if no other measures that would bring about timely attainment exist, or if such other measures exist and are technically possible to implement, but are unreasonable or impracticable. Otherwise, no fuel control would ever be “necessary,” since for any area there is at least one measure—namely, required shutdowns and prohibitions on driving—that would result in timely attainment of the NAAQS. It is doubtful that Congress would have intended to bar EPA from approving State fuel controls into a SIP based on the availability of such drastic alternatives.i Evaluation of How the New York Revision Satisfies the “Necessary” Criterion New York City Metropolitan Area In its 1984 New York City metropolitan area (NYCMA) SIP. the State estimated that it would need to reduce volatile organic compound (VOC) emissions by 59 percent over 1982 levels in order to meet the ozone standard by 1987. This.transla tea to a 199,678 ton per year (tpy) reduction in VOC emissions. EPA has evaluated the State’s progress in obtaining these reductions and determined that the State has only achieved a 38.1 percent reduction from 1982 levels; a reduction of 70,938 tpy identified in the SIP as necessary to attain the standard has yet to be achieved. The reasons for this shortfall are varied and include lack of (or inadequate) implementation of certain measures, less than anticipated effectiveness of certain measures, growth in vehicle miles traveled and the unanticipated growth in emissions due I Federal Re ialer Augusi 10. 1988. 53 FR 30220. 30228 to increases in gasoline RVP in recent years. As an example of the effect of one of these reasons for the shortfall, in its 1984 SIP for the NYCMA, the State committed to study the feasibility of reducing VOC emissions from architectural coatings, consumer/ commercial solvent use and automobile refinishing. These three control measures were identified as extraordinary control measures that were beyond reasonably available control technology (RACT) and, as such, were not reasonably available. In addition to the State’s commitment to study these three source categories, the State originally estimated that these controls would reduce VOC emissions by 29,800 tpy. The results of the State’s current study suggest that the extraordinary controls would not be 100 percent effective because these are area sources, and therefore would not yield the reductions originally anticipated. The State estimates that the reductions attributable to the three extraordinary measures would be as low as 4,300 tpy. To make up for the emission reduction shortfall, the State developed and adopted a regulation that would reduce the volatility of gasoline sold in the State during theozone season. The New York submittal and related documents contain the State’s analysis of the emission reductions that the extraordinary measures would achieve and the remaining shortfall. That analysis concludes that the New York RVP regulation would reduce VOC emissions by an estimated 9,000 tpy in the NYCMA. This estimate may understate the actual reductions because it does not include the emissions reductions that would result from decreased running losses associated with lower volatility gasoline. Running losses are emissions from the gasoline tank and fuel system that occur while a car is being driven and which overload the evaporative control system or escape through the filler cap. New York has estimated that the RVP regulation would reduce emissions by 19.000 tpy if running losses are taken into account. Using information available in the New York SIP and Reasonable Further Progress Report for 1986. along with supplemental information submitted by the State, EPA determined that New York has only achieved a 36.1 percent reduction from 1982 levels in the NYCMA. This translates to at least a 33.8 percent reduction from the 1987 inventory. It is also important to recognize that the 59 percent emission reduction that guided New York’s ------- [ 2658 Federal Register / Vol. 54, No. 58 I Tuesday. March 28. 1989 I Proposed Rules ielection of control measures has )TOvCn to be too low EPA’s experience ‘ith Reg oo al Oxidant Model runs for he Northeast LndIcMtcd that a VOC inission reduction on the order of at east 75 percent from 1982 levels is eeded for attainment of the ozone ;tandard. Under this scenario, the mission reductions needed for ittainment of the zone standard Lranslate to at least a 59.7 percent eduction from the 1987 inventory, or i4,149 tpy in addition to the 199.676 tpy hat has been identified In the SIP. The VOC strategies that are not yet mplemented which have the greatest potential for significant future VOC reductions are: Ueasure Percen of 1987 Iwentoly Reduce RVP from 11.5 1 090_._ —.- 9.004 4.3 Architectural Coaeng I Coviinerosl Auto Refinshng (coln ed) -- 4,300 2.1 ACT for Small Sotj s......... .._.. ..... 3,978 1.9 ‘arc Dry CIa mars...,.. Tot - .. 3,947 1.9 2l, 102 The potential combined reductions rrom other categories suggested by EPA ror examination by other NESCAUM states, if found practicable. may provide an additional 1.5 percent emission reduction. This would yield a total reduction of 11.7 percent if all were 100 percent effective. There would still be at least a 22.1 percent VOC emission reduction shortfall. In order to make up for this remaining shortfall, the Stale is considering additional changes to its motor vehicle inspection and maintenance program along with other measures as part of the Post-1987 Ozone SIP planning process. A reasonable level of l/M program changes would result in less than a 5,000 tpy reduction in emissions. Thus, even in such reasonable lIM enhancements are implemented, a shortfall will still exist necessitating the implementation of other measures to achieve attainment. By reducing RVP to 9.0 psi instead of 10.5 psi, New York would be able to obtain additional reductions of approximately 3.800 tpy. Therefore. even with EPA’s RVP regulation reguiring control to 10.5 psi in 1989, the Slate regulation will still have a significant impact. It will provide, approximately, an additional 1.8 percent reduction per year beyond the EPA reduction: Thus, New York’s RVP program appears to meet the appropriate test of being “necessary” to achieve attainment of the ozone standard. The fact t iat the State RVP regulation might not by itself fill the remaming shortfall and hence by itself achieve the standard does not mean the rule would not be ‘necessary” to achieve the standard within the meaning of section 211 [ cJ(4)(C). EPA believes that if Congress had intended EPA to approve a state fuel-content rule only if it were necessary and sufficient to achieve the standard, then it would have used that lang ’u ge In section 211(c)(4)(C). EPA believes that the “necessary to achieve” standard must be interpreted to apply to measures which are needed to reduce ambient levels (thus bringing the area closer to achieving the NAAQS) when no other reasonable measures are available to achieve this reduction. A contrary application of “necessary to achieve” in this situation would mean that measures which result in signiflnsntly improved air quality are nonetheless unacceptable (even though no other reasonable measures are available) merely because they ar insufficient in themselves to provide the reductions necessary to achieve attainment of the NAAQS. It must be noted that the State’s submittal indiceted that the regulation was intended “as a replacement volatile organic compound coofrol measure for a portion of three existing SIP commitnieot to coutrof VOC through measures that have been categorized as extraordinary, and as a package that improves the ground level ozone situation on Its own merits.” EPA is not at this time determining that this measure replaces the three extraordinary measures which are part of the 1984 SIP for the NYCMA. EPA will evaluate the State’s submittal of regulations Implementing these measures which was received on December 5. 1988 and take action in a separate Federal Register notice. EPA is proposing action today with the knowledge that New York’s overwhelming intention in seeking EPA approval of this SIP revision. is to continue to make progress toward attaining the ambient air quality standard for ozone through the implementation of RVP controls. Finally, EPA notes that its 211 (c)(4)(C) covers not only the designated NYCMA asmattainment area, but also Orange and Putnam Counties. In its June 0,1988 proposal concerning nonattalnment designations pursuant to the Mitchell-Conte Amendment (53 FR 20722 , EPA proposed to include Orange and Putnam Counties within the NYCMA nonattainment area because of their contribution to ozone formation in that area. For the same reason, F.P, also indicated in letters dated May 26, 1988 to New York State that both counties must be included in P0 51.1987 SEP planning for the NYCMA. See also. 52 FR 45044 (November 24. 1987). Therefore, EPA today concludes that implementation of the RVP rule in Orange and Putnam Counties is necessary to achieve the ozone standard in the NYCMA. Upstate Nonattoinrnenz Areas During the summers of 1987 and 1988. air monitoring data revealed numerous exceedances of the ozone NAAQS indicating actual nonattainment of the standard in Jefferson. Erie. Niagara. Dutchess, Essex, Albany, Schenectedy, Rensselaer. Saratoga. and Washington Counties., New York has submitted information indicating that the RVP program Is necessary to achieve attainment as expeditiously as practicable in these upstate areas. This information reveals that no other measures could be Implemented rapidly enough to provide any significant emission reductions by the summer of 1989, and available measures which would produce emission reductions of similar magnitude to the RVP program could not be In place for several years. The upstate areas already have In place reasonably available control technology (RACY) for stationary sources consistent with EPA’s Group I and Group U Control Technique Guidelines (CTGs) as a result of previous nonanainment designations. New York could impose RACY on Group Ill CFG sources, institute a vehicle inspection and maintenance program, require Stage II vapor controls, and other extraodinary controls such as regulating consumer solvents. However, New York has indicated that none of these measures could be In place before 1992 and most would take significantly longer to produce emission reductions similar to that of the RVP program. The State has estimated that reductions in upstate areas from the RVP program are expected to be in the range of 28,500 tpy. Although New York is not yet in a position to make a demonstration of attainment for these areas, pending the development of inventories and the use of computer modeling, New York currently believes that the RVP program alone may be sufficient to provide for attainment of the ozone NAAQS in the upstate nonattainment areas. New York therefore concludes that implementation of the RVP program now is necessary to achieve the standard as expeditiously as practicable in these areas. ------- Federal Register / VoL 54. No. 58 / Tuesday. March 28. 1989 / Proposed Rules 12659 In light of the State’s submitted analysts and the fact that New York does not currently have a nonattainment demonstration for the upstate nonattainmcnt counties listed above. EPA cannot now conclude that the RVP program is not necessary to achieve the standard as expeditiously as practicable in those areas. 3 hoW EPA Is in a position to conclude that the program is definitely not necessasy. the Agency believes *t is appropriate to make a finding under section 21i(cj(4)(C with respect to the RVP program in the upstate nonattainment areas. EPA therefore proposes today to make such a finding. Further, it appears that since the upstate nonattainxnent areas are located geographically all over the State. New York logistically had to make the RVP rule apply on a statewide basis in order to ensure compliance in the nonattainment areas without producing supply and distribution problems. Given New York’s need to apply the RVP program statewide. EPA finds that application ci the program throughout the State is neceasazy to achieve the ozone standard as expeditiously as practicable in all of the u ntate and downstate nanattainment areas. EPA acknowl 4ges that the te dinica1 data to support its 2111cli4](C) Finding for the upstate areas are not extensive given the late date at which the upstate conattainment problem became apparent. EPA therefore specifically requests comment on the propriety of Its 211(cfl4)(C) finding for the upstate nonattainment areas. Enforceability In EPA’. review of the enforceability of the New York revision, a problem with the test methods section was revealed. The State requires that fuel sampling and testing shall be “by methods acceptable to the Comnsissioner” EPA has adopted a final volatility rule which contains the American Society for Testing and Materials (ASTM) method D-4057 for bottle sampling, the method contained in ‘the California Administrative Code Title 13, R.2261 for nozzle sampling arid ASTh4 “dry” method D-4814. Annex 2 (formerly known as P—176) or the Herzog “dry” method as a test method. The State has committed to revise this section in order to resolve this issue. EPA is proposing to approve the State’s Althou 8 h A indicated in Its national RVP ruIemek.n that control 1090 PSI would not be practicable for intplemsntation befo,e 1992 nationwide Mardi 32,1969 (54 FR 1196a . EPA muSt condude. based upon the record underlying New York’. actual adoption of a 90 pSI RVP program in 1969. that such a program is currently pracl cabIe in New York, RVP controls with the understanding that the State must revise the test methods section to include the EPA recognized methods. Conclusion EPA Is proposing to approve this revision to the New York State Implementation Plan for ozone to control gasoline volat Uty with the understanding that the State will revise the test method sectign of the regulation. EPA 1. also proposing to make a finding that this SIP revision meets the requirements of section 211(cX4XC) of the Act for an exception to Federal preemption. EPA is soliciting public comments on its proposed ection. Comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the address noted at the beginning of• today’s notice, This notIce IS Issued as required by section 110 of the Clean Air Act, as amended. The Administrator’s decision regarding the approval of this plan revision is based on its meeting the requirements of section 110 of the Clean Air Act, and 40CM Part 51. Under 5 USC 6050,1.1 certify that this SIP revision will not have a significant economic impact on a substantial number of small entities. (See 46 FR 8709) The Office of Management and Budget has exempted this rule from the requirements of sectfbn 3 of Executive Order 12291, List of Subjects in 40 CFR Past 52 Air pollution control. Hydrocarbons. Ozone, Authorlty 42 IL9.C. 7401-7642.. Date: Febniaiy 2(11* WillIam J. Muixyniki. Actuig RegionoiAdm!ni,trv or. (FR Doe. 59-7318 FIled 3-27--89. 845 am) mwim e 40 CFR Part 52 (FRL-3544-51 Approval and Promulgation of implementation Plans; Ohio AGENCY U.S. Environmental Protection Agency (USEPA). ACTtO Withdrawal of proposed rule . SUMMAaY: The USEPA is today withdrawing its November 23.1988, ‘proposed rulemaking notice (53 FR 47549) which proposed to approve a revision to the ozone portion of the Ohio Stale Implementation Plan (SIP) for Mansfield Products Company in Mansfield, Ohio. On February 23. 1989, the Ohio Environmental Protection Agency requested that LYSEPA withdraw the pending SEP revision for a large appliance coating line (K0051 at the Mansfield Products Company plant in Mansfield. Ohle The noncomplying coating line at the Mansfield Plant has since been shutdown, DATE: Withdrawal of this rulemaking is effective as of March 28, 1989. FOR RJR’THER INFORMATION CONTACT ’ Maggie Greene. Air and Radiation Branch (5AR—26). U.S. Environmental Protection Agency, 230 South Dearborn Street. Chicago, Illinois 60604, (312) 886-6041. Authodty 42 U.S.C 7401-7642, Dated March* 1200. Frank M. Covinglos. AcAng Regional tails! Wzcht, [ FR Dec. 89-7339 Piled 3-V-89 Si4 5 am) BIWNO COOS S = (FRL-3544—IJ 40 CFR Part 360 National Oil and Hazardous Substance Polkullon Contingency Plan National Priorities List Update AGENCY: Environmental Protection Agency. ACT1O Notice of Intent to Delete the Cecil Lindsey site from the National Priorities List: Request for Comments . SUMMARY’. The Environmental Protectio Agency (EPA) Region 6 announces its intent to delete the Cecil Lindsey she from the National Priorities List (f WL) and requests public commall on this action, This site is located northeast of Newport In lacksouville County, Arkansas. The NPL constitutes Appendix B to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). which EPA promulgated pursuant to Section 105 of the Comprehensive Environmental Response. Compensalicm. and Liability Act (CERCLA}, as amended by the Superfund Amendments and Reauthorization Ant (SARA) of 1900. EPA and the Arkansas Department of Pollution Control and Enelogy (ADPC&E) have delanninad that all appropriate CERCLA sespense actions have been mzplevienied and that no additional cleanup activities are appropriate. In addition. EPA and the State have detetmined that the remedidl activities conducted at the site to date ------- 9g 50 any vegetation. histonc feature or bridge a bu t i en t. Becky Nortoc DuLJop. Assis ran: Sec.erary for Fish and Wildlife and Parks Date Aprd 24. 1S89. [ FR Doe.. 89-13061 Filed 8—1-89 . 845 amj s J _ p ,G 000C 3 1-1 - i ENVIRONMENTAL Pt OTECTION AGENCY 40 CFR Part 52 (FHL—3571-2 1 Connecticut and Rhode Island Ozone Attainment Ptana Con ol of Gasoline Volatility ao c ’r Environmental Protection Agency. ACT1OIC Final rule. SUMMARY: EPA is approving State Implementation Plan (SIP) revisions submitted by the State of Connecticut and the State of Rhode Island. These revisions will reduce emissions of volatile organic compounds from gasoline by limiting the Reid Vapor Pressure (RVP) of gasoline sold between June 30 and September15 in 1989 and between May 1 and September 15 of each year thereafter to 9 pounds per square inch. EPA is also finding that the Connecticut and Rhode Island RVP regulations are ‘necessary to achieve” the national ambient air quality standard (NAAQS) for ozone and are therefore excepted from preemption under section 211 of the Clean Air Act. The Intended effect of this action Is to make necessary progress towards attainment of the ozone standard as expeditiously as practicable as required under the Clean Air Act £FFECTTV! DATE June 34 1989. AnceEss Es: Copies of the submittal are available for public inspection at U.S. EPA. Room 2311. JFK Federal Building. Boston, MA 02203: the Connecticut Department of Environmental Protection. State Office Building. 165 Capitol Ave.. Hartford, CT 06115: and the Rhode Island Department of Environmental Management, 291 Promenade SL Providence, RI 02908- 5767. R RMThER PerO A11ON CONTACfl Peter X. Hagerty. (617) 665—3224: (FTS) 835-3224 or Jennifer York, (617)585-. 32 ) 835-3220. flUPcLEMEKTARY NW0aMATIOse lntre . uction This Federal iaglster notice describe. D’A’s decision to approve revisions to both the Connecticut and Rhode Isiand SIPs which limit the volatility of gasoline from June 30 to September 15 in 1989 and from May ito September 15 every year thereafter. Since the Connecticut and Rhode Island regulations are very suzular and the public comments received in response to EPA s Notices of Proposed Rulemaking were nearly identical, the two revisions will be discussed together in this notice. Any difference, between the slates in the regulations. public comments or EPA responses will be clearly identified. The remainder of this preamble is divided into four sections. The first provides the background for this action, with respect to both chronology and the .broad issues Involved. The second section presents today’, action and EPA’s rationale. The third section summarizes the comments received on the proposed action and EPA. responses to them. The final section discusses Rhode Island. revision to the test methods section of the regulations to cure a deficiency identified and discussed in EPA. proposed rulemaking notice. Background On November 12. 1987, the Commissioners of the Northeast States for Coordinated Air Use Management (NESCALIM) signed a Memorandum of Understanding expressing their Intention to reduce the Reid Vapor Pressure (RVP) of gasoline to 10 pounds per square Inch (psi) starting In the summerof l988andto9puHnthe - summer of 1989 and continuing every ozone season thereafter. Since there were delays In adopting necessary regulations, the 1968 Limit of 10 psI was eIImin ted, and Connecticut and Rhode Island passed regulations limiting the RVP of gasoline toO psi from May 1 to September 15 starting In 1989 and continuing each year thereafter. On November10, 1988, Rhode Island submitted a SW revision to EPA for approval to implement this provision. Connecticut submitted Iti SIP revision on’ anuary 30, 1989. On March 15, 1989, EPA published Federal Register notices proposing approval of the Connecticut and Rhode I.Ia, ,A SD’ revisIons (54 FR 11016 and 11018). EPA also proposed to find that these revisions were “necessary” to sthleve the national ambient air quality standards (NAAQS) for ozone within the meaning of section 211(c)(4)(C) of the Clean Afr Act (the Act), in the event that EPA subsequently took final action on federal RVP regulations. Section m(cX4XAJ of the Act states that a state may cot, for purposes of motor vehicle ainI tco . controL Rules and Regulations prescribe or attempt to enforce any control or prohibition re8pecti use of a fuel or fuel additive in a motor vehicle engine— ”(i) if the Adminjsti .ator has found that no control or prohjbitio under paragraph (1) is necessary and has published his finding in the Federal Register, or (ii) if the Adiriinistjator has prescribed under Para aph (1) a control prohibition applicable to such fuel or fuel additive, unless (the] state prohibition or control is Identical to the prohibition or control prescribed by the A ,iminiatrator.” At the time of EPA’a proposal on the Connecticut and Rhode Island revisions, EPA had proposed, but not taken final action, on federal RVP control regulations. On March22. 1989 EPA published a Federal Register notice (54 FR 11888) taking final action on national regulation of RVP. to take effect this summer. The maximum allowed summertime RVP in Connecticut and Rhode Island under the federal regulation is 10.5 psi. Under section 211(c)(4)(A) of the Act. EPA s final action preempted inconsistent state control of RVP for the purpose of motor vehicle emission controL except In California. In Its final action, EPA noted that states could be exempted from preemption only If EPA finds It is “necessary” to achieve the NAAQS as provided in section 211(c)(4)(C) of the Act. EPA made specific note of the conditions for EPA approval of state RVP regulations. Description of Today’s Action EPA today approves revisions to the Connecticut and Rhode Island SIPs which limit gasoline volatility to 9 psi between June 30 and September15 In 1989 and between May I and September 15 In each year thereafter. The Connecticut and Rhode Island programs Include authority for the state to issue waivers to Individual suppliers if necessary to avoid supply dislocations. EPAIs approving the programs as a whole, including any waivers the states might Issue under this authority. This aspect of EPA’s approval L discussed In full under section 9 of the next portion of this notice describing EPA’s response to EPA Is also ezpllddy finding that the Connecticut and Rhode Island revisions are ‘necessary to achieve” the NAAQS within the meaning of section 211(cX4)(C) of the Act. This means that the Connecticut end Rhode Island RVP regulations are not preempted by the federal RVP regulations promulgated on aich25,i9e9 EPA’. rationale for thi, action and Its effective date are presented below. In this context many Issues raised by Federal Registi’ I Vol. 54. No. 105 I Friday. June 2. 1980 / ------- commenters on the proposal will be addressed. The remauuflg comments will be discussed in the next portion of this notice. In approving the Connecticut and Rhode Island RVP SIP revisions. EPA must consider reqw.rement.s miposed b)i two thiferent sections of the Clean Air Act. As with all SIP revisions. section 110 provides the requirements for approval into the SIP. In this case. since EPA has promulgated Federal RVP regulations. section Z11(c )(4)(A) preempts inconsistent state control. However. section 211(c)(4)(C) provides that the Administrator may except a state RVP control program from preemption if he finds it is “necessary” to achieve the NAAQS. Thus, the Connecticut and Rhode Island revisions must satisfy both section 110 and section 211 requirements to gain approval. EPA has concluded the the Connecticut and Rhode Island RVP regulations are “necessary” to achieve the ozone NAAQS. In reaching this conclusion EPA baa followed the test first articulated in approving the Maricopa Country Arizona SIP (53 FR 17413 (May 18. 1988) and 53 FR 30228 (August 10. 1988)) and later presented in the proposed approval of the Connecticut and Rhode Island revisions. EPA stated that IL after accounting for the possible reductions from all other reasonable control measures. Connecticut and Rhode Island could demonstrate that RVP controls are still required to achieve the standard, then RVP controls are necessary within the meaning of section 211 (c)(4) (C). EPA will not interpret that provision to require a state to impose more drastic measures such as driving prohibitions or source shutdowns before It can adopt Its own fuel control program. As discussed in the notice of proposed rulemaking, the record indicates that Connecticut needs VOC emission reductions on the order of at least 37% from 1987 inventory levels to acheive the standard. Connecticut reviewed approximately 15 measures suggested by EPA as reasonable in addition to RVP control 109 psi and found that they could together potentially achieve a 24% reduction from 1987 levels. ihancements to the state’s vehicle inspection and maintenance filM) program could produce an addItional 2% reduction. Similarly. the record indicates that Rhode bland needs VOC redudons -n the order ,f itt I est 28% from ls Z 3 i wentory levels o achieve the at d d. Rhode Island evtewed c.ther reasonable measures In addition to RVP control, including an enhanced state vehicle 1/M program. and found that they could together potentially achieve a 10% reduction from 1986 levels. As Indicated in both the Connecticut and Rhode Island proposals, while EPA’s regulation of gasoline to 105 psi reduces the emission reduction attributable to the state regulation. it does not affect the bottom line—a shortfall will still e,ast. EPA’s technical review of the data presented in the states’ submissions and by the commenters affirms the conclusion that a shortfall will exist even with the Implementation of all other reasonable state and federal measures. A continues to believe that the fact that the state RVP regulation might not by itself fill the shortfall and hence by itself achieve the standard does not mean the rule is not “necessary to achieve” the NAAQS. It is simple logic that “necessary” is not the same as “sufficient” EPA believes that the “necessary to achieve” standard must be interpreted to apply to measures which are needed to reduce ambient levels when no other measures that EPA or the state has found reaaonnble are available to achieve this reduction. Beyond such Identified “reasonable” measures, EPA need look at other measures before RVP control, only If it has clear evidence that RVP control would have greater adverse Impacts than those alternatives. EPA has no such evidence here. Therefore, EPA can defer to Connecticut’s and Rhode Island’s apparent views that RVP control Is the next less costly (or Is Itself a reasonable) measure. Thus, EPA concludes that the Connecticut and Rhode Island RVP regulations are “necessary” to achieve the NAAQS. Smv i ry of Pablic Comments and EPA’s Responses The major issues discussed in the comments arm (1) Wbai constitutes a finding of “necessary to achieve” the standard under section 211(c)(4)(C); (2) whether there has been an adequate technical demonstration that controlling RVP to9 psi Is “necessary” (i.e. whether the threshold for exemption from preemption hu been ossed); (3) the scope of EPA’s discretion autnnIn a fliuIh g that state RVPcontzvls are necessary to achieve the standard; (4) what effect the 9RVPIImIt in Connecticut and Rhode Island will have on the cost and supply of gasoline In those states and the Northeast eneral)y (5) drtveabthty and safety ooncernm (0) whether there is an ozone pilblem In Connecticut and Rhode Island; (7) whether the states have adequate enforcement pro uma: (8) • stiles arid Regulations whether the states provided “reasona ’- opportunity’ for public COmJ,. ent: (9) what exemptions or waivers from the state regulations should be allowed (i the appropriate tiiD.lrzg for maJ .g the state regulation effective: and (11) whether EPA should withdraw or repropose these actions Or reopen the public comment period in light of EPA’s recent promulgation of federal RVP regulations and other alleged deficiencies in EPA’s proposed actions Each issue is explored in detail below. i. What Constitutes a Finding of “Necessary To Achieve” the Standard Under Section 211(c)(4)(C) of the Clean Air Act? a. Making the “Necessary” Finding Without a Demonstration of Attainment Comments, One group of comments questioned EPA’s ability to make a finding that the Connecticut and Rhode Island RVP regulations are necessary to attain the ozone standard without going through the complete planning involved in approving a state’s response to EPA s finding that the cunent SIP is substantially inadequate to achieve the standard (the “SIP call”). Several comments stated that EPA cannot approve these states’ RVP regulations as SIP revisions without finding that the SIPs as a whole achieve attainment of the NAAQS for ozone. Related comments questioned EPA’s ability to determine whether these states’ RVP controls are necessary without a new updated inventory of VOC sources which EPA will require from the states with ozone nonattainnient areas as part of their response to the SIP calls. Finally, one comment asked how much time EPA will give states to achieve the ozone standard and how EPA can determine what Is necessary to achieve the atandard without knowing when the states must achieve attainment Response. Through its SIP c lls. EPA has imposed on states like Connecticut and Rhode Island an obligation to revise their ozone SIPs and demonstrate attainment of the standard. The thrust of these comments Is that EPA cannot snake a finding of necessity without the states’ first having gone through the new planning process and developing a new demonstration of altainment EPA does not Interpret section 211(cX4)(C) to require • complete demonstration of attainment In order to approve a measure which will contribute to attainment Forcing a state to demonstrate attainment before allowing tt to adopt stricter fuel controls would yield perverse results Areas with the worst ozone nonattalnnient problems, which Federal Regisle ’ ‘ Vol 54, No. 1t35 I Friday. June 2. 1989 ------- 23652 Federal Regie 11 r I Vol. 54, No. 105 I Ftidsy. June 2, 1988 1 Rules and ReguIatio have the most difficulty assembling a demonst tjon of attainment. would be disabled for perhaps several years from adopting dearly necessary RVP controls 9tr Cter than the national controls. One comment noted that Connecticut and Rhode Island so far have not been able to identify any combination of control measures which would bring the states into attainment. because the size of the VOC emission reduction necessary to do so issa large. It is predsely In areas Uke Connecticut and Rhode Island, with especially difficult nonattalnment problems where the expeditious implementation of new controls. and hence the Sndlng of necessity endea section 211(c)(4)(C). is moat appropriate. Beyond that. It Is reasonable for EPA to use the best Information it now has available to determine whether these states’ RVP programs will be necessary to achieve the standard without bavtog to wait for Connecticut and Rhode Island to complete their planning response to the SIP call. Including their updated Inventories. As explained below, the VOC inventory and reduction figures Connecticut and Rhode Island submitted to EPA were based on reasonably reliable models EPA has used In the past. Such figures are always capable of refinement, but In the Agency’s judgment the expenditure of time required to do so is not worth the marginally Improved accuracy. See Vermont Yankee Nuclear Power V. N.R.D.C. 435 U.S 519,554-555(1978). EPA has not yet set a date certain by which Connecticut and Rhode Island must attain the ozone standard. Congress may address the widespread none Itaininent problem In the amendments to the Act now being considered. In the meantime EPA has also proposed Its own policy for how to deal with SIP plnrmfng for nonattainment areas in the post-1987 period. 52 FR 45104 (November 24. 1987). The air quality analyse. Connecticut and Rhode Island submitted made It clear that RVP control beyond the federal requirements will be necessary to any i*Itainment plan, whether the att InmPnt date that Congress or EPA selects Is Lmmlnent or long-term. Moreover, there I. widespread agreement among EPA and the states In the Northeast that ma;or VOC reductions, probably exceeding the 28 to 37% estinutled by EPA In this case, will !r raq’t’ ei to get close to attaining the ak’d.NothingLnthealr - . the summer of 1985, • . ecome available in quality- • .m since publication of the proposal, indicate. that the reduction requirement projected by the Connecticut and Rhode Island analyses OVerstate the reduction cecessay to achieve the standard. Beyond that, the history of ozone planning over the last decade makes it clear that reduc&aa — targets are seldom overesbmaied. Furthermore, EPA. approval of this proposal now is c ’ten* with section 11O(aX2XA) of the Act which require. attainment “as expeditiously as practicable.” InImWetlng ectioe 211(cfl4XC) to require a complete attainment d.n iitr .tlon before EPA can approre (and a state can hziplement) a fuel cugirul that the state has determined tobe practicable and that would adva the attainment date would effectively put section 211(cX4) (C) In confect with section 11O(a)(ZXA). ft Is docbtful that Congress Intended EPA to choose an Interpretation that would create such a øonfl Icf b. The Standard EPA Has Applied to Determine Whether Fuel Controls Are Necessary Compared with Other Controls Comments. Several commentera maintained that EPA had not adequately analyzed whether there are other control strategies reasonably available which Connecticut and Rhode TiI n should implement before resorting to RVP controls Inconsistent with the federal regulation. EPA will address • these efimments In section 2d below. Other com r1t . cone ,n d the st nA rd that EPA should use to determine whether RVP con vls are necessary compared to other controls. Finally. one com suggested that EPA’. approach to comparing ItDrrtati Ie control strategies Is so vague that it Is necessarily arbitrary. Response. In the proposals for this action. EPA used the approach it firsi announced when approving the Maz400pe County Arizona SIP (53 FR 17413 (May18 19e8) 53 PR 3 (August18 1988)) to determine whether RYP controls beyond the federal program are necessary to attain the ozone standard In Connecticut and Rhode Island. Under that approach. if after accounting for the possible reductions from .11 other reasonable control measures, the states could demonstrate that RVP controls are still required to achieve the standard, then RVP controls are necessary within the meaning of section 211(c)(4)(C). For the reasons stated In the Arizona action and the Connecticut and Rhode Island proposals. EPA wilt not Interpret section 211(c)(4)(C) to require a state to Impose more drastic measures such as driving prohibitions or source shutdowns before it can adopt its own fuel contrnj program. One cfl1 MPJit K1g$uted that EPA could clarify the method by whith t det rmini whither fuel CoOfrola a necessary by ranking all possible control measures according to their coat per ton of VOC reduced each year, and approving additional fuel controls only when the state has first exhausted all controls which coet less per ton than fuel controls. EPA and the states have not developed coat figures for all the altmnative controls which the agencies considered before resorting to state fuel controls. Connecticut and Rhode IsLand have, however, demonstrated to EPA that implementing all the control measures which EPA now believes to be reasonably available to them for VOc control (induding measures that the states have already adopted and are now beginning to implement) would not achieve compliance with the ozone standard. The roster of control measures Connecticut and Rhode Island examined generally corresponds to the list of controls EPA has Identified for states to implement In response to the ozone SIP calls, and represents EPA’s best judgment as to the controls which could now be reuonably Implemented. See EPA’s proposed post-1987 ozone policy, 52 FR 45104. AppendIx C (November 24, 1987). After exkmtnlng all controls EPA has determined to be reasonable, a state is free to make Its own determination as to what control measures should next be employed. Moreover nothing in the language or purposes of section rn(c)(4)LC) suggests that EPA must buttress this judgment as to reasonable controls. a judgment which is based on the states’ thoughtful analyses and EPA’s expertise regarding alternative measures, witha rigorous cost-effectiveness analysis, in any event, the shortfall In available emission redactions from reasonable measures is so substantial that it Is highly unlikely that a rigorous cost-effectiveness comparison would show that there are enough measures wboie cost-per-ton- reduced Is below that of RVP controls to make such controls unnecessary. One comment maintained that EPA’s method for detezii Inh g what Is necessary Is too vague because it would allow EPA to approve state fuel controls “simply because alternative measures an, more inconvenient, unpopular, or costly” As discussed In section 2d below, EPA examined reasonable alternative controls which Connecticut and Rhode Island could implement and determined that they would not achieve enough reductions to achieve the standard. EPA also has determined that ------- Federal Regis Vol. 54. No. 105 I Friday. june 2. 19 Rules and Regulatlor s 2365J remaining controls such as gas rationing. driving reductions, and source shutdowns are so drastic that a state may resort to fuel controls first. This judgment concerrung what is too drastic is a complicated policy determination requir ng the Administrator to weigh precisely those factors which the coxnmentor would exclude from his consideration—whether the remaining alternatives are costly or unpopular. in Amoco Oil Co. v. Environmental Protection Agency. 501 F2d 722, 740—741 (D.C. Cit. 1974) the court distinguished between the factual foundation which EPA must provide in its adminiitrative decisions and policy judgments which are an integral part of the findings Congress requires the Administrator to make under the Act Where by n a.st. the regulations turn on choices of policy, on an assessment of risks, or on predictions dealing with matters on the &ontiers of edentific knowledge. we will demand adequate reasons and explanations. but not “findings” of the sort familiar from the world of adjudication. Id. at 741. EPA’s and the states’ analyses of reasonably available controls Is based on a factual record supported by the best analytical tools the agencies had available to them at the time. EPA s judgment that state fuel regulation Is a less drastic course than gas rationing and other unpopular controls so far not implemented in any SIP Is clearly a matter on the frontier of air pollution control pl imIn . and therefore cannot (and need not) be supported by the same technical record as. for example. EPA’s determination that Cocnectimit needs at least 37 percent reduction from Its 1987 Inventory or Rhode Island needs at least 828 percent reduction from its 1988 inventory to attain the standard. 2. Have ConnecticuL Rhode Island and EPA Made an Adequate Technical Demonstration That Controlling RVP to Opsi is ‘Wecasawy” to Attain the NA A QS? a. Adequacy of Emission Inventory. Comments. Three petroleum industry commenters argued that the emission inventories used In the technical demonstration are Inadequate. They pointed out that EPA has already requested that Connecticut and Rhode Island prepare a new inventory as part of their response to the SIP call. Therefore it is argued that the states’s rehance on the old inventories is inappropriate. Respon e. As described In EPA’s Technic& Support Document.(TSD) for each proposal, the emissicn ii: lee used by Connecthut and Rhode ‘sle.nd and reviewed by EPA are basqd on -EPA’s “Compilation of Air Potlutant Emission Factors.” known by its document number “AP—12.” This document and its updates are EPA’s longstanding guidance for determining emissions for inventory purposes and has served as the basis for ozone SIP inventories since the mid—1970s. Mobile source emissions were estimated using the then current version of EPA’s mobile source emissions model. MOBILE3. consistent with standard EPA guidance. While EPA has called for many states. Including Connecticut and Rhode Island, to update their inventories for post—1987 SIP pl nnlng purposes, the Agency has continued to use eidsting inventories in evaluating current control proposals. EPA expects the new Connecticut and Rhode Island inventories, not due until late 1989, to show higher emissions than the current Inventory since they are expected to include more sources and Improved quality assurance. Thus. if the current inventories are lacking. they understate current emissions and err such that the likely percentage reduction needed to attain the standard Is also understated. As stated in the proposals for this action. EPA believes that If there Is an error in quantifying the emission reductions resulting from control to 9 psi. those reductions are understated. If the newly released mobile source emission model. MOBILE4. which Includes the effects of running losses. were used. one would expect the reduction In tons of VOCs to Increase significantly. Furthermore. contrary to the commenters’ belief, the estimated emission reductions are based on reductions achieved during only the four and one-half months each year the regulations are effective. This approach may understate the reduction since 9psI fuel may be in the distribution system up to two additional months on each end of the regulatory season. Also contrary jo the c nm.nters’ nliiim EPA’s ‘iSDu do contain an estimate of the emission reduction achieved by going from EPA’s 10.5 psi limit to the states 9 psI limit. EPA estimated a 4% reduction from the 1987 inventory In Cononclicut end a 1.2% reduction from the 1986 inventory In Rhode Island. This estimate does account for nonlinearity In emission reductions with decreasing RVP limits. b. App pr4ateness of the MOdeling Demonstration Comments. While some coinmenters agreed that modeLing was necessary to ‘.‘aluatc the air quality benefit of the RVP scdurction. the? objected to EPA’s a.gio al Oxidant Model / ¼i commenters also raised conceeus about the appropriate hydrocarbon-to-nItrogen-oxIdes (NO 1 ) ratios to be used in such modeling. t third modeling issue Concerns the si and EPA ’s inability to associate a quantified increment of improved ai. — quality with the control of Rvp to 9 psL Response. The claim that the ROM does not provide the spatial resolution needed for accurate prediction individual urban areas loses sight of the fact that we are evaluating statewide pro s. The Urban Airshed Model suggested by the commenters is appropriate for large urban areas but would have to be stretched to its limit to cover all of Connecticut. Given Rhode Island’s small size, Airshed could be used for evaluating the Rhode Island program. However, having decided that the ROM is an appropriate tool to use iii evaluating the Massachusetts program, consistency also favored its used in evaluating the programs in the neighboring states. Finally, the ROM is much better equipped to evaluate the longer range transport of ozone which plagues the Northeast. Caught between, the two available model scales, It is EPA’s technical Judgment that the ROM Is an appropriate tool to use In evaluating future reductions needed for Connecticut and Rhode Island. EPA understands the concern that past strategies have focused almost exclusively on controlling VOC lnstt of NOr As Indicated in EPA’. post-Il ozone strategy, future control scenarios are likely to Include NO 1 . However. It Is highly unlikely that NO 1 control alone will suffice. The best technical information available to EPA at this time concerning the Northeast ozone problem points to the need for substantial VOC reductions and at least modest NO 1 reductions in the future to attain the ozone standard. The last modeling issue concerned the states’ and EPA’s inability to associate a quantified increment of improved air quality with the control of RVP to 9 psi. While such a modeling exercise would be Ideal, It Is unlikely that one would have much confidence In the outcome of such a sensitivity test. The atmosphere’s response to emission reductions of ozone precursors Is highly nonlinear such that small increments of reduction may show little or no effect on their own. However, when the reductions front the states’ many strategies are aggregated, the total impact becomes quantifiable. Thus, even though Connecticut, Rhode Island and EPA cannot pinpoint where the air quality will improve by what amount on what day, we are confident that there will be, a net improveinen In ozone levels if Connecticut and Rhode Island were to ------- 23654 Federal R.gia / Vol. 64. No 105 / FrIday. JUne 2. 1989 I Rules and Regniations decruasu V uioas by 4% and 2.2% respectively. C. Wbeth the Connecticut and Rhode Island RVP Pro ams Will Help Attain the Ozone Standard at All Coinmeni& API daimed that analyses by bdth Connecn it and Rhode ! *1nnd su$gest that the state would virtually be in attainment except for the transport of ozone and its precursors from other areas and that, because of the transport problem. VOC redue icna from sources In the eta tea will have little or no effect on ozone attainment there. Under these circumstances, API claimed that EPA cannot reasonably conclude that Connecticut or Rhode Island’s program Is necessary, or even helpful, to attainment of the ozone stpndArd In that state. Response. APr. conoern Is flawed because it acknowledges transport into the state but Ignores transport out. It may be true that measures taken In Connecticut or Rhode Wand will have little measurable Impact within that state’s borders. This Ia la ely because these states are comparatively EPA has, however consistently designed nonattainment urea ozone SIP. to account for the impact an upwind area has on ozone levels In downwind arees. See Clean Afr Act section 11O(a)(2)(E), 42 U.S.C section 7410(a)(2)(E). Courts have upheld EPA’ . Interpretation on the nonattainment area controls In Pert D of the Act to allow the Inclusion of upwind areas which contribute to osone violations downwind. See State of Ohio versus Ruckelshous. 776 F.Zd 1333(6th dr. 1985). cart den. sub. corn. Ohio verses Thomas. 106 S.Ct 2889(1988), and cases cited therein at 1340. In fact, many states in the Northeest designed their 1982 ozone plans based on design values in neighboring states. On most high ozone days in the Northeast, Connecticuts emissions photocheindafly react into ozone somewhere over Massachusetts or Rhode Island. Slniilaily. Rhode Island’s emissions me cccthbeting to unhealthy ozone levels In Massachusetts or southern New Hamephire. This moss- boundary transport I . precisely why EPA has turned to regional scale models to evaluate the need [ or control rneaawes. d. Consideration of Other Alternatives CommonL ommenters ex r ,.ed concern that’ Cobáe ’ci t. Rh Island and EPA e 1 ll5 d” con’v - th r significant al:rxnctt int : that could lead o ut : msut q reIssed er & ’goriea i i?’ çendlx C of EPA ’s proposed post. ozone policy including statiansay source conc’oh and transportation control measure,. Response. EPA believes that rn clez3t aitsenanves wme considered. In the Connecticut submission EPA fo d consideration of the emission reduction potential of 13 different point and area sawne categories. Some of these categories correspond to those su98elted by EPA in its proposed post- 1987 ozone policy. Not surprisingly, some of the ource categories are not relevant because there are no major sources in those categories In Connecticut Connecticut alee Included mee . e not on EPA’s recommended list In most of the relevant categories the potential reductions are a very small portion (less than 1%) of the existing inventory. API noted that some of the categories recommended by EPA were not evaluated by Conhecticut but are part of the state’s emission tnvuntoiy. They particularly note the dry cleaning and wood furniture coating categories. EPA notes that these categories account far 0.2% and 0 .1% respectively, of the Connecticut Inventory. API further nominated degreaslag and pharmaceutical manufacturing for consideration. Totally ellmIn ting emissions In both these categories, which Is obviously unachievable, would yield a 3.5% emissIon reduction. However, accommodating all of API’s recommendations would produce Icu than an additional 4% still far short of the 11% shortfall indenifled in the proposal. See Adeb u4ui to Teehnl I Support Document dated May 5 . 1988. In the Rhoda TaI . , l ni..i,m EPA found consideration of four major control measures in addition to RVP control. As diw’ reed in the proposal, Rhoda [ sIg 4 anticipates thai e h n d plus basic I/M. Stage IL architectural coatings and coni r solvent controls could reduce emissions by about 7.5%. EPA has inii d Rhode Island’s 1952 SIP and believe, that further reductions, not .4nc i ,nented In Its RVP SIP submission, could be achieved. The.. reductions would corn. from lowming the source size ontoE in categories currently regulated by Rhode Wand (eg. paper and fabric coating, graphic arts and other surface coating) and regulating other categories not carrently covered (e.g. adhesive.. miscellaneous metal ai. iting. automobIle ithhIiig and :‘ ck saphalt). U Rhoda T I nd ... -‘,!;‘, a it uf these - . .. . . mates that a 6% venkc... .. c.a i 96 inventory levels could be reallz.d. See Addendum to Technical Support Document dated May 5 1989. EPA’. review indicate. that the measure. Identified In the post. g policy and SU eeted by some coenters are not likely to produce reductioi in Rhode Island we found in neighboring Connecticut or Massachusetts, the best case this might reech 4% of the current Inventory. Thus ft Is possible that Rhode Island could achieve up to a 10% reduction in emissions beyond that discuesed In the NPR. This additional 20%, whIle helpful In moving toward attainment, fails far short of filling the 18% shortfall described above. See Addendum to Technicai Support Document dated May 5. 1969. With respect to transportation control measures, the commentors failed to take account of the fact that the existing Connecticut SIP already contains some of the measures suggested by EPA In its proposed post-1987 ozone strategy. The existing SIP (40 CFR 52.370 (c)(32]) Includes Incentives for reduction in single-passenger commuter vehicle use throt gh carpooling. vanpoollag brokerage, extensive fringe park-and. ride facilities, express bus programs, and one of the few Indirect source review programs in the country (44) Q ’R 52.370 (c)(6) and (c)(9fl. Rhode Island has not Implemented the same kinds of transportation control measures already in place in Massachusetts and Connecticut. Based on EPA’s experience with the Massachusetts and Connecticut programs, however, we expect that Rhode Island might be able to achieve an addItional 2% reductioa by adopting similar strategies. However, this additional reduction would still not eftTnln te the estimated shortfall. While EPA recognizes that other transportation measures may be needed Ia’Connecticut and Rhode Island, the remainder are dlmcult to quantily, yield small reductions individually, and, as evidenced by the public reaction to the EPA-promulgated Implementation plans tsirting such measures In the 19705 (see H.R. Rep. No. 9S- 4. 95 Cong. 1st Sees., reprinted in 4 Legislative History of the Clean Air Act Amendments of 1977, at V’48-65 (1978fl, generally can be expected to have more significant adverse . ecti on the public as a whole than RVPcocbols would. To be sure. If there were sufficient evidence for EPA to conclude that the states’ RVP controls would result In significantly more severe impacts than other measures that neither EPA nor the states have yet Identified a, “reasonable” for the state to Implement, then it might well be appropriate for the Agency to account for the emission reductions that those ------- other easi z wo d achieve before detsr’l1L j , the shortfall agamat whiCh to }il4ge the RVP con train. The Agency does not believe, however, that the states’ gyp controls, given the lead-tune provided by todays approval, would produce sigmficarnjy more severe effects than such alternatives (e.g., than a trip reduction ot ’dinai ce of the type that Ari.zona found reuonable for application in Phoenix and Tucson). In sum. Connecticut, Rhode f*t nA and EPA have indeed exRminPd a broad range of potential emission reduction strategies and have still identified a significant shortfall in the level of emission reductions likely to be needed to achieve the ozone standard. 3. WhaS is the Sc.,pe of EPA’s ietlen Assuming a Finding That Stage 11 VP CanfmL Aje h mavy To Achieve the Standard? a. Permissible Bases for EPA ’s Decision to App State RYP Cco olu Comments. Several c.mmenta asserted that even where EPA has determined that state fuel controls are necessary to achieve the standard, EPA may neverthelese ±sapprove those controls If EPA de( rodnes that the economic or fuel ‘lppll Impacts of the state’s regulation aie wueasonable. These commenter s v ted that EPA may give significant ononideration to costs because section 2flfr)(4)(C) provides that the A&inietiatcr “may” approve a SIP revision imposing state fuel controls once he makes the finding of neceaufty. Coa er,ely, other commenters memtajj,ed that EPA may ‘ lot cflsapprove the Connecticut and Rhode island SIP r visloog based on econcanc grounds, once EPA has made the findIng of necesafty. Response. EPA believes that it most consider cast to came limited extent whenem the A&vinfatra,o, decides whether to make a findIng ander , e t 4 on Zfl(c)(4XC) theta fuel Is “necessary” for attehimerit As discussed above, to deter e whether state fuel controls are necessary, EPA m look first at whether other measures that it deterri in.... are reasonable ‘and. perhaps, other measures the state has adopted) will by themselves achieve timely ali I a t . Arguably, an ahernative ‘ ur is “reasonabis” only if Ito effects me is is drastic than the effects of the fuel cenfrols. Clearty the cast d supply Impact of the stale fuel con ols will be a facto, is any acvh o4 ’. EPA - “may” f. Admj , j. , dlUppz . ‘ minds- ehe, that state End c o1 ma sary to achieve the standard. S on Z11(GX4IIC) mist be read in the context if the preempuim cieand in section 211(c) (4XA) , w prohibits states from adopting Ineaneialent fuel control, in their SIPs, ormnyw else. fcrw pollution con L parpos s. hi the face of this bitiozi, the pole effect of the “may” in sectius 21.1 cX4)(C) is to authorize A ’ taJsti tnr to ov e a provision (section 2fl(c)(4XA)) that would .therwise bar him from approving the SIP teTi. , n . The of “may” in section 211(c)(4)(C) does not eliminate the L 50 that section 13O(aJ(3)(A) places cc the Administrator to approve the SIP revision, provided it meets the ‘eq zementa of section 11 eX2). See fl jn,. Natural Raroo,om Defense C jf. c, 421 U.S IO ,ne(1w5). Sectiun fl a](2) aqulies the A isuaIystm. to a 1 ,nv,ea SIP revisson If. ong other thinga , ft may be e .eaTy to Insure a’ ainm and maintenance of the standard. Section 13O(.)(2 B), EPA may not consideg the connie act of. necessary SIP revision under section flO(aX2 under that provision. in is for the state I. de & . what economic costs are appropalate to adsieve the standards, Un /ce, Electrj Co. v. EPA. 427 U.S 248 250 -25 1(1975). Beyond that, It would be incoagruono for C egs tove EPA more dIeQtho to reject a SIP revision for ressons unrelated to the al of achieving the st* .4 d as qaickly as possible precisely where EPA ha. determined that a SIP avision Is necessary to achieve the stazuda,d. Therefore, once EPA makes the thng that state fuel controls aie necessary to achieve the standard, • thud1 which includes a determinetig,, that such fuel controin are more reasonable than other available measure,, EPA may not reject a states SIP proposal simply for economic masons, One omumenler cited Aktor Vehicle Manufoct& ri , i V. EPA.. 7 P.2d 300, 310400 (D.C. Cir. 1185), for the preposition that th , ae of “may mode, section 21i the sion to the of the Mmiuimtor, in MYMA the t ean EPA’ . deciaio* so grant a leni,m’ r action I1(f)(4) if the as of fuel additives ta.tis1hy to ns fr. —- The comi not ___ a _ m , . ,LI a •3tIea 5p fhi - in so a SIP sev ‘ p a state f.I hearing at ‘ uIes and Regu]atjo 08 reqtm’ements Qns ll e) (2) an (3J(A). b. Intent of Federal Ppti , Uiid section 211 Comirients. Several comine LflSi 5ted that EPA should disappro, the Connecticut and Rhode Island Rvp controls because Con ess Intended to avoid a patchwork of different Ste te fuel controls in favor of a uniformly regulated national market for fuels. These commenter, expressed co era that the exception In section to the rule of preemption under section fl1(c)(4) (AJ would eventually swallow the rule. Several c cnta urged EPA not to act inconsistently with its decision not to limit gasoline to 9 psi in 1 in the federal RVP control program, On the other band, several commerns urged EPA to support the regional approach to RVP control that the P CAL34 states are endatal g. One tn entar pointed out that where Congre.. ha. not acted to address the oos noon 1w Il* p blem. reson Wet 5th tea do au they Can to Response, It is dear that section 211(c)(4)(A) Indicate, that Ca ’ess to maintain a natiouajly regulated market fcrf ”-’a, it is equally dear that section fl1(CX4XCJ indice tee Congress that there will be states where the afr qvabty problem is so us,eri that the interest in a nationally regulated market must bow to the need for at ItSanaj state control. on fuel con EPA bern not been able to find any legislative history which Wumin”te, with any detail beyond the language c i the Ant bow EPA should sink, this be , . - Is reasonable t infer that Cangreb, was a that the air quality needs of partlcde, states inight meate vary ng fuel content requirements, and that C o i g s ted that rink in favor of protecting the public health. Several commenlom cited Coip . v. Cay af New York. 548 F.Zd 1068 (2d Ci i. 1977). es precedent that a uniformly regulated fuel market is the ex iuhng purpose behind section Zi1(cX4). in Ezxon the court, however, was not faced with a claim fur an exception to preemption under section Zfl(cX4J(C), and apedfleafly left It to EPA to determine whether such an exception is appropri ate: eior fu mpr 5 , 5 preenptloa of local regtdatjoa c i moiar vehicle fiapl oily when mdi ieguladao Lou peovi 4a t :‘ ye topIuwaut, n plan appra ‘ by the who be, .fie on ’ lpetm to sad m Federal Re ster I No. 105 I Friday, Jiuio 2, 1910 ------- 23656 Federal Register / Vol. 54. No. 105 / Friday. June 2. 1989 / Rules and Reg Jation Id. at 1096. Once EPA has made a finding of necessity under section 211(c)(4)(C), it is reasonable for EPA to interpret the Act to piace paramount importance on protecting public health and achieving the standard. EPA believes that the ml industry’s concern that the exception will swallow the rule Is overstated. As described above. EPA will approve inconsistent state fuel controls only where the state can demonstrate that exhausting all other reasonable alternatives will not achieve the standard. tnlçjng costs into account in determining reasonableness. This demonstration Is not a trivial hurdle, and It is highly unlikely that every state with an ozone nonattainment area could make such a showing. Furthermore, a state Is unlikely to burden its citizens with the potentially higher cost of lower RVP fuel unless the air quality needs are compelling. Finally, regional initiatives such as NESCALJM’s help avoid a wide variety of state controls. In this case, the Connecticut and Rhode Island programs are virtually identical to the Massachusetts program end thus provide consistent supply requirements over a group of contiguous states. EPA also believes that its decision not to Impose a limit of 9 psI by 1989 In EPA’. RVP control program does not preclude EPA from approving the Connecticut and Rhode Island SIP proposals. When developing its federal RVP control program. EPA imposed controls across the nation, and had to determine the level of RVP control which supply sources for the entire continental United States could reasonably meet. Further, although EPA was able to make this determination as to particular regions within the country. EPA did not intend to account for the particular air quality needs of each state. 4. What Effect W1IIthe9RVP Limit in Connecticut and Rhode Island Have on the Cost and Supply of Casoline? Comments. Several of the oil company coinmenters. (API. BP. Mobil) stated that If the 9 psi standard took effect In 1989 the distribution system would be strained and that there could be some significant supply dislocation and cost. increases. Several other commenters were worried about possible supply problems. Several stated that even if refiners had capacity to produce 9po1 gasoline, there would be logistical problems such as the need for additional tankage for storage associated with its distribution. Also, one commenter stated it It could not ensure that Imports at 9 would be available. Most of the oil npany commenters (API. Mobil. Sun) stated that there wilj be some need for capital improvements at refineries to meet the 9 psi standard. Several (API. Mobil), stated that there will likely be a cost impact to the Connecticut and Rhode Island standard and other commenters stated that they were worried about the Increased cost. API stated that the estimates of Increased cost do not reflect the extra cost increase that could accompany a significant supply disthbution. Proponent. cited two studie. as support for the position that supply is not a problem. Response. The potential supply problems arise out of two factors. First. decreasing the volatility of gasoline requires increased refinery capacity. It Is certain that Implementation of 9 psi volatility In the NESCAUM states will create a refining capacity reduction in the amount of gasoline capable of being produced at each refinery. This Is true of both domestic and foreign suppliers. Second. the problem may be further exacerbated by the expected increased demand in gasoline In the summer months. Various studies have been conducted to determine how much refining capacity wifi be lost from Implementation of 9 psi volatility in the NESCAUM states, how much demand for gasoline Is likely to Increase in the summer of 1989, and what effect these factors will have on gasoline supply capabilities. The two studies done for NESCAUM and the one done for EPA are Inconclusive. There appear to be numerous factors which make precise prediction of these effects impossible. However, under the EPA Study (Sobotka study), estimates indicate that the volatility standard may be feasible without serious supply problems. The Sobotka study cites the Department of Ener v (DOE) as predicting that demand for gasoline should increase only In the range of 1 to t5 percent this summer. This estimate is also supported by other studies, including one reported at a National Petroleum Refiners Association conference. The study also estimates that approximately a 5 percent refining capacity shortfall will occur at domestic refineries because of the NESCAUM volatlllty, g ilations. The study estim qs * WjJb a 12 percent increase le emand for gasoline tnthe summer J.& refineries would be able to make up :or a 5 percent domestic shortfall.. anda 10 percent Import shortfalf llpu Qnaluctlon of new facilities or Installation of additional equipment. Although various factors make it Impassible to accurately predict the refining shortfall of L iported gasoline, there is no strong evidence indicating that it will exceed 10 percert. Thus. the Sobotka study suggests that t is likely that the resulting re ery capacity shortfalls from a 9 psi standard in 1989 should not result in supply shortfalls. In the unlikely event of unforeseen supply disruptions. Connecticut and Rhode Island have each assured EPA that they have the authority to take immediate steps to provide needed waivers or exceptions to the program. The States have committed to carefully monitor the supply situation this year and take appropriate action, as may be necessary, to ensure that supply problems do not occur as a result of its state RVP control program. See also the response to section 9 later in this notice for more discussion of state waiver, or exceptions. 5 What Effect Will 9 R VP Gasoline Have on Driveability in Cold Weather and on Vehicle Safety? Comments. Cominenters representing petroleum interest. expressed concern that the 9 RVP fuel could cause hard starting, hesitation, and stalling in the early spring and late fall. Gasoline will have to enter the distribution system in March and will not be out until October in order to comply with the regulation. Temperatures can be at or near freeting during this time of year. One comnienter stated that cars that are poorly tuned and have weak batteries are more susceptible to low RVP fuel problems. They also stated that California should not be used for comparison because they have a shorter supply time since its fuel comes from refineries within the state. Other commenters supported the use of 9 RVP fuel, claiming that driveability is not a problem because the weather in nothern California Is similar to the weather In New PiaglAnd . They also referred to the Motor Vehicle Manufacturers Association statement on the New Jersey RVP regulations. dated August 18b 1989, which stated that 9 RVP fuel would cause no driveability problems. Another comnienter representing a group of automobile manufacturers Indicated there should be no adverse effect from th. use of 9 RVP fueL Two commenters stated that although fuel used now Is safe because the vapor. are too rich In hydrocarbons to be Ignited, the reduction to 9 RVP fuel will make the vapors potentially explosive below 15 degrees Fahrenheit Mother cornmenter’s report showed that reduction of RVP to 9 reduced fire. ------- and prob oI qverpreuixration. vapor lock, fuel spurung. and fuel foaming. Rerponse. We believe that the nature of the gasoline disthbutlon System makes it very unlikely that 9 RVP fuel will be available to conawners in March or early April. even if the blending-down process by that tune has begun to reduce RVP. Continued availability of low-RVP fuel ii even eu hkely by late October because the blending-up process will occur rapidly at the close of the conhol period. Nevertheless, the experience of California, which ha. reqmed 9 RVP fuel for many years. appear, to demonstrate that widespread diiveability’ or fuel safety problems will not occur in New England. We know of no evidence of sxtensive problems In California, despite significant operation at cool temperatures and high elevations. As further evidence of this concision, one can compare the true vapor pressure rrvpj experienced in fuel tanks at different times during the year. For example, when corrected for elevation, gasoline in Riflingis , Montana at its January 1988 average RVP of 13.6 psI and at the historic low January temperature of —30 degrees Fahrenheit would result in a true vapor pressure of 1.0 psi. For Boston, the analogous RVP and temperature of 10.0 pal and —12 degrees would also result in a TVP of 1.0 psi. In con ast.&5 pal fuel at an analogous Boston April temperature of 18 degrees would result In a TVP of 1.8 psI, 80 percent higher than the winter figure. While similar analyses are not available for Hartford and Providence, winter RVP and temperature hi these cities are very similar to Boston and It Is reasonable to expect to find similar results. We coridude from this that If low volatility fuel were to reach consumers during very law tempui- thr weather, any degradation in thiveabilfty or fuel safety would be no greater (and would likely be less) than that experienced darbie the winter. Conversely, low voletility fuel should Improve vehicle driveability in very hat weather by reducing the occurr ce of such conditions as vapor lock and fuel foam g. Lie There ReoJJya Severe Ozc’ . Problem in Connecticut eird Rhode friand or the Northeast? i and 1868 which show a worvefl.i.ng of the ne problem swce i 6 They noted that 1988 was one of the wo ’st onone , e ns on record laces the Northeast. Response. EPA is firmly convinced that there is a serious ozone problem in the Northeast. EPA’. conviction was evidenced by last year’s SIP c cl i to Connecticut. Rhode Island and mOst other Northeast states. This SEP call was based on 1985-1987 ozone m taing data which ranked southern New England among the worst ozone nonattainment areas in the country. EPA ’. ccn’era is further balghtened by the 1988 oncme season. The omue standard was exceeded more frequently, at more sites, end at higher levels in 1988 than in 1987. La fact, as one noted, a 198$ EPA Rogion I study comparing peblic health risk from environmental peoblems In New Wiigl nd ranked ne in the highest risk category (“Unfinial d New EngJiti & A Comparative Assessment of Environmental Problems”, December 1988). 7. Hove Connecticut tmd Rhode Island Demonstmted That They Have Adeqaot.Lufarcem eat P ogruras as Required by S ioe 110 of the Clean AirAa? Rules and Regulations 23657 concern for the national RVP pregr -r , which allows for three dif ere i RVP fuels. depending on defined g c ’apl, areas. Opporturu hes to blend th ’e djffering RVP gasoline en route to the retailer to yield a flOnComplyi ,g fuel would e ist EPA concluded in its naoonai rulemaking that testrig at all points in the distribution system would provide the ‘best safeguard” ag st Or 1 u gasoline and would result hi the greatest likelihood” of àchievthg iroiin e tal results. However, EPA did not conclude that Its program represented a mlniman standard or that anything short of this anfu , .e?z] nt scheme would be Inadequate wider section flO(a) 2). EPA does not believe that the Connecticut and Rhode Island enforcement programs muet mirror the federal First. If the states successfully ensure that all the gasoline hi bulk planta and t rntht ls within the state are below 9 psI, the opportunities for RVP nJ gin ’ m,nt within the state will be . Retail distributors would have to Duck higkD RVP gasoline into Connecticut and Rhode Island and splash blend the gesoline to accomplish this, an nnhlIc ’ ly scanario Second. retail outlets In Connecticut and Rhode island will be subleca to EPA’s national enforcement program. If gasoline that does act comply with the states’ V psi limit Is found at retailers In th. state by EPA, we will surely share such evidence with the Thus, while the EPA and Connecticut and Rhode Island RVP enforcement programs do not match, they do have significant overlap, provide for some Inspection of retailers. and contain sn clent flexibility to adequately provide anlolusment of the regatioa. EPA the dL,i j with APi’s view thatanabsenneolrscotdke eping provisions fatally flaws the states’ While EPA’s general enforcement galdance for all — rnDfldQ rocordkeepuig provisions. EPA is not rigidly bowid by sea giddance. It Is pertienlerty true In this com where EPA’s awn RVP anlwnessana puogrom does not req*e recordkeepix*g. As API noted. EPA dimwit s issue Is the TSD for the C cnt p. .jnaiI and ‘n ’ d that It was not ‘ tic. Massisvw. EPA notes that in the ar sf sm1or enI through Delayed Compliance Orders !DCC * wuI . have bald that EPA may ‘i . ’ - ‘ indpsst.&schoIceef ‘-‘ t me ’ 3 w so as the - - Z.. iIaarmaonsblec ne. - . ‘ -. ICc .p v. U P.A., 800 1 u L 1 $-1O05 (7th Or. 99S0) Federal Ragistr ‘ Vol. 54. No. 1L I Friday. June 2. 190 ’ Commen . API correctly noted that section 110 of the Act reqalres that the state provide a program for enforcement of the emission limitations as well as aeceesery assurances that It has adequate to Implement the plan. API noted that Cesmecticat and Rhode Island Intend to enforce their problems through sampling at terminals. bu& plants end other primary dlatr%utieu pointo bet not at retailers. API pointed eat that EPA’. RVP enforcement these polite and eisa reesthe, all the way to retailers, and cIa ed that this establishes. mialmam standard for effective . ,J. of RVP ts that Cowiecilcet and Rhode Island fd to meet API further vad that the states’ regulation. do not s.thfy EPA’. guidelines fee ,. .s abthty and legal seffiuleney bsnsuae they Dy contain u RVP eep4ng __ re ulrs enta for J gasoline . fadId .. Rsspmme. EPA does not ee with APT. ees EPA. Comments. A amaber of isóishy de- -1 - — . I. u d RYP anLi 1 .—t commenimi. in - rgaig EPA to puvgrmn down in rota level r ects disapprove the SIP revision, v nd ____ that lan ” ‘Q be the that the etr Is really becoming dower oppor Ity in inms - ‘J ’ . . 1 and cleaner over e es that the ‘ - ga.o e thot he. thi. . i’ 3 ozone standard Is bong met - than ‘ P.: 99% of the year. Enetronmesital gr qia -‘ ‘gandtaa with -s 1 r countered these eIsMi ’ . with dote from- ‘ ‘ ° ‘ • ------- Federal Register / Vol. 54, No. 105 / Frtday, June 2. 1989 I Rules and Reguiationa appealed. Bethiehem Steel v. Go .’ such. 726 F.2d 350 (7th Cit. 1984). rob. den.. en banc. vacated on reh.. 732 F.2.d 97 (7th Cu. 1984), withdrawn and appealed. 742 F.2d 1028 (7th Cu. 1984). Furthermore, even if Connecticute and Rhode Island ’s enforcement scheme. were Inadequate to support a finding, ultimately, that the elate’s eventually complete ozone SIP update meets all of the requirements in section 110(a)(Z). EPA could still approve the rule under section i1O(a)(3). That is because. even with an inadequate enforcement program. the rule would still strengthen the pie-existing SIP and hence, under the rationale in Michigan v. Thonios e05 F.2d 176.188(8th Cir. 1988). be approvable for that limited purpose. Hove Connecticut and Rhode Island Satisfied the Act’s Public Notice and Hearing Requirements? Comments. API claimed that EPA failed to address the question of whether the Connecticut and Rhode Island SIP revisions were adopted after “reasonable notice and public hearing.” While acknowledging that public hearings were held, they alleged that the decision to limit RVP to9 psi was actually made by NESCAUM some time before public hearings on the Connecticut and Rhode Island RVP regulations, and that therefore any hearings nominally provided are substantively inadequate. On the other band. NESCATJM commented that ozone pollution problems, especially in the Northwest. are dearly regional problems and must therefore be dealt with through conei.tent regulations. API also questioned whether notice and hearing was provided on the SIP revision or just a state regulation. They believe it was unclear from the public notices and materials available before the hearings that the RVP rule ,was actually intended to be submitted as a revision to the SIP. Response. As to the first claim. EPA’. Federal Register notice actually provides the dates of the hearings and the TSD contains an itemization of the dates the public notices were published. including an identification of the newspaper the notice was published in. Although there Is no summary statement that the public participation requirements for hearing and notice were met, the record does speak to that effect. EPA finds APr. concerns that the ‘,ublic hearing. were largely ieaningless and thus not “reasonable” o be misplaced. API infers that onnecticut. Rhode Island and the other .IESCAUM states had predetermined the outcome of the hearings before and without regard to the hearings held in those states. EPA is not at all convinced that the process was predetermined. If API were aggrieved on this matter, we would have expected it to challenge the state.’ proceedings under state law, as API has in fact done in New York. However, no party challenged Connecticut’s or Rhode Island’s proceedings. Lnduding APL who was a participant EPA acknowledges that Connecticut and Rhode Island did initiate rulem Irtng on RVP control pursuant to an agreement on RVP control with the other northeast states. However. having initiated the rulen king on that basis, the state then proceeded to promulgate the regulations through Its full atbiiintatrative process. giving adequate notice and opportunity for public hearing on the proposed regulations. As a policy matter EPA agrees that the ozone problem In the Northeast Is a problem of regional magnitude and has held several meetings with top EPA and State environmental officials in EPA Regions L II . and III to determine what concerted efforts the states could take on their own to deal with issues of regional. but not necessarily national. scope. Therefore EPA believe, that It is appropriate for the northeastern states to regulate ozone precursors in a consistent fashion. However, each state must provide for adequate public participation in the promulgation of individual regulations. Including assessing and responding to all submitted comments. as Connecticut and Rhode Island have done In connection with their RVP regulations. As discussed more fully below, EPA reviewed the states’ public participation procedures and determined that the states provided adequate opportunity for public input In connection with development of the RVP rule.. API argued specifically that the states’ bearing procedures were not adequate to comply with section 110 of the Act or EPA’s hearing regulation. of 40 CFR section 51.102. The operative language in both the statute and the regulation Is “reasonable notice and public bearing.” APIasserts that Connecticut and Rhode Island héd predetermined Its final decision on RVP regulation and thus the hearing provided was not reasonable. However. EP(’. Mterprets the language of both the st . • . and i ie lmple aenting reguIa ”z ‘ t ‘a provide. irst. .na . ‘otlc’ uf public heartn . .J secciw . a public hearing. EPA does not believe that the law requires the Agency to review the hearing record and determine whether the heaxing provided was itseIf “reasonable.’ EPA’s interpretation of the hearing requirement is clearly reflected in the reg’ik .ns at 40 CFR 51.102. The regulations go into substantial detail on the manner in which states must provide notice of a hearing in order for that notice to be considered reasonable, See 40 CF 51.102(d) ’, see also 40 CFR 51.102(g)(2). However, the regulations make absolutely no mention of specifIc requirements for conduct of public hearings. The state need only certify that it in fact held a public hearing, which Connecticut and Rhode Island clearly did, and need not provide any detailed information on the conduct of the hearing, mis is appropriate because the reasonableness of public notice can be assessed objectively by reviewing the amount and variety of notice methods used. Assessing the reesonableness of a bearing on the other hand would be a highly subjective determination done retrospectively that wculd unnecessarily infringe on the state’s discretion In conducting its hearings. Of course, if EPA receIved concrete evidence that the hearing did not provide adequate opportunity for public partIcipation. It could find that the hearing did not meet the intent of EPA’s regulation. EPA has, however, received no such evidence. API further claimed that a state must specifically identify a proposed regulation as a future SIP revision prior to scheduling a public hearing on the regulation. However, neither the statute nor EPA’s regulations contain any such explicit requirement. The purpose of a public hearing is to receive public input on the substance of proposed regulations, not on whether the state may or may not submit the regulations as a SIP revision. For years EPA has approved SIP revisions with no analysis of whether the state had publicly announced its intent to eventually submit a proposed regulation as a SIP revision at the state public hearing stage. Generally it should be totally Irrelevant to public commentera whether a regulation with which they will be required to comply as a matter of state law might also become an aspect of federal law. At the time Connecticut and Rhode Island held their public hearings on the RVP rules, prior to federal preemption, commenters should similarly have had no concern as to whether the proposed state rules would eventually become federal law as well. Only where a state regulation would otherwise be preempted by existing federal law and therefore unenforceable ------- vould the public have a need to laiow hat the state intended to seek federal ipprova] of the regulation for purposes if preemption waiver in preparing omments at the state hearing level. [ his was not the case at the time of the itate hearing on the Connecticut and thode Island RVP riijes. Moreover. pven EPAs then outstanding proposal a regulate RVP and thus preenipt state WP regulation, it should have been ipparecit to commentera at the time of the public bearing that Connecticut and Rhode Island would submit the nile as a SIP revision to Insure enforceability in the event of EPA final RVP regulation and pieemption. R Should Waivers or Exemptions from the State Regulations be Gr intad to upp!iers Who Cannot Provide 9 RVP gasoline? Comments. Two commenters (BP Oil and Sun) expressed concern with potential inequities resulting from supplier-specific requests for waivers. rhey indicated that the use of supplier- specific waiver provisions could diminish the calculated benefits of the rule by allowing higher RVP gasoline Into the system, and financially disadvantage those companies which are able to comply. They also expressed roncern that the use of waivers and exemptions introduces uncertainties about whether the volatility regulations will be applied fairly and equitably to all gasoline suppliers, because the Connecticut and Rhode Island regulations do not Include explicit provisions for the states to follow in considering applications for waivers or exemptions from individual suppliers. The commentate concluded that if waivers or exemptions are to be used. they must apply to all suppliers and significant penalties should be attached. In addition, one cdmnienter noted that EPA has to consider how it will respond to supplier-specific waiver requests: and EPA “is urged to adopt a policy on waivers which Is consistent with Its own RVP regulatory program?’ Response. EPA Is aware that - Connecticut and Rhode Island Intend to grant waivers to individual suppliers if necessary to avoid serious supply dislocations during the Initial stages of their RVP programs. Although EPA did not focus on this aspect of the program in its notice of proposed rulemaldng, commenters were also aware of the states’ Intentions and the issue was hilly aired in the public comments. EPA Is approving the Connecticut and Rhode Island RVP programs whole, which includes the ability of the atates to issue waivers as appropriate. EPA Is in essence pro-approving any waivers that Connecticut or Rhode Island might erant as part of the overall RVP program being approved into the Connecticut and Rhode Island SIPs today. Connecticut and Rhode Island will not be required to submit each waiver to EPA as a SIP revision before it may take effect. EPA is currently able to pie-approve any waivers that Connecticut or Rhode Island may grant because the RVP program is a dia etionary program that the states’ have submitted to generate additional emission reductions and move the state closer to attainment of the ozone NAAQS. EPA Is not pro- approving waiver. from a federally required program or a program to which EPA has already assigned specific emission reduction credits as part of an overall attainment demonstration. EPA could not pre-approve waivers In such situations because they would constitute SIP relaxations. Here, whatever emission reductions Connecticut and Rhode Island obtain from the RVP program. even after any waivers have been granted, will tighten the existing SIP and improve air quality. EPA notes that its pie-approval of any waivers Connecticut or Rhode Island may grant under the RVP program differs dramatically from approval of a generic permitting program such as a new source review or bubble program. In those cases, EPA authorizes states to approve relaxations of S W requirements provided that the state follows approved procedures calculated to Insure that all such waivers are accounted for in the SIP attainment demonstration and are issued using replicable evaluation techniques. Here, since EPA Is not cui ently relying on the Connecticut and Rhode Island RVP programs for any defined emission reduction credit toward an approved attainment demonstration. EPA need not now analyze the criteria by which Connecticut or Rhode Island will issue any waivers. Connecticut and Rhode Island are free 16 Issue waivers on the basis of their own state criteria consistent with any requirements of their state ath, 1ni.trafive procedures acts. When Connecticut and Rhode Island do submit their completed post-1987 attainment demonstration. EPA will assign specific emission reduction eredits to the RVP programs, taking account of any supplier-specific waivers. th, states may have Issued by that time. Once EPA has approved the Connecticut’s and Rhode Island post- 1987 SIPs. ft will take whatever rulemaking action is necessary to ensure that any further waivers under the RVP program, which at that point would be considered SIP relaxations, would be submitted to EPA for approval u individual SIP reviaIa ss. Finally, EPA notes that any suppliers Rules arid Regulation 3 23659 who receive waivers from CorIflectjcL ,. or Rhode Island must still comply w the federal RVP limit of 10.5 psi. 10 How Soon After the Dote of Fin_. Appm vol of the Connecticut and Rhode Island Revisions Should the R VP Regulations Be Mode Effective? Comments. Many commenters were concerned with the timing of EPA’s final action. Those favoring EPA approval of the SIP revision generally favored EPA acting quickly to make the regulations effective by their May I starting date or as close to that as possible. These commentere note that the Colonial Pipeline, which supplies 20% of the Northeast’s gasoline, has been shipping 9 RVP fuel to the Northeast since March 1.1989. They also pointed out that those suppliers who have made a good faith effort to comply with the May 1st date would be at a competitive disadvantage relative to those with cheaper, higher volatility gasoline if the date is extended. Those opposing EPA approval of the SIP revision generally asked that if we did approve It we must provide the petroleum Industry with realistic and sufficient lead-time to enable 9 psi gasoline to be distributed throughout the distribution system. These conimenter’ — dted EPA’. allowing 70 and 100 days the recently promulgated national regulations to become effective at the terminal and retail level respectively as precedent for such a decision. A third path, suggested by API. would be for EPA to make It. final approval conditional on the state’s deferral of the compliance date for It. regulation. Response. The timing issue Is one of the most difficult ones posed by this action. Since EPA has had control of the tfn ing of the final federal RVP action, the decision on the Massachusetts RVP SIP, and the decision on the Connecticut and Rhode Island RVP revisions, it Is important that we ensure that both the federal and state programs start with a maximum likelihood of success and a mfrthnum possibility of supply disruption. EPA must consider several issues in deciding when to make the rule effective. The first Issue Is when the industry was put on notice that It would have to supply 9psi gasoline to Connecticut and Rhode Island. As the - state.’ rules were passed in 1988. the industry was on notice since then of the states’ Intention to control V IP to9 psi. Howqyqçt sq Connecticut and Rhode -Island rule3 ,i’vere preempted on March 22,1989 by ia prorai.dgatlon if the fsder vqI( t1 ty ree drements. Mothez&luue to consider Is the lead time that would be necessary to enabk O pal gasolin, to get through the Federal Regist / Vol. 54. No. 105 I Friday. June 2. 19F ------- distribution system. The record indicates that the ijidujtiy thought that it would take from 80 to 70 days to achieve compliance at the terminals in Connecticut and Rhode Is i 1. The record also inthcetes that t. lc !r. Pipeline, which supplies at least O% of the gasoline Lii the Northea . t. has been shipping 9psi guaoline sInce March 1. 1989. The final Issue involves the air quality consequence, of delaying the effective date. EPA should not delay action on a SIP revision In much a manner as would thwart the states’ Intent In requesting the SIP revision. Connecticut’s and Rhode Island’s subinluions of the RVP SIP revision last winter were clearly aimed at getting their regulatory programs in place for the 1989 orone season. Thu. it is Important to have the effective date as early as possible in order to maximize the air quality benefit, of the programs In i9 . In deciding to make this action effective on June 30, 1989, EPA has attempted to balance these competing interests. EPA believes that this effective date will both ffflnhvnf.e possible difficulties the Indus y might encounter with a shorter lead-time and provide citizens in the Northeast as much relief as is practical during most of the 1989 ozone season. Although some suppliers may have a good faith effort to comply with the May 1 effective data specified In the Connecticut and Rhode Island proposals, they were under no obligation to do so once EPA preempted the states’ requirement by promulgating Federal RVP controls on March 22, 1989. The Agency cannot, therefore, select an earlier effective date for all suppliers based on the voluntary action of a few. especially conaid thig that the time between the March 22 federal rulemxidng and todays publication Is critical to the refiner/supplier pIsm r g and ünplewentatloe process regarding fuel delivery for the coming mlmmø, . However, because refiners have already begun to prepare for the sale of 9 RVP fuel as a result of EPA’s approval of the Massachusetts RVP SIP (published on May 4. 1989 54 FR 19173J, and In light of the fact that the three states share zany links in the gasoline disthbution network, the Agency does not believe that an additional 60 to 70 days lead - time I. warranted. This starting dat. in Connecticult and Rhode Island mirrors the starting date of the Massachusetts program. ii. Should EPA Reopen the Comment Period or Withdryjw and Repropose This SIP Revision in Light of EPA , 7naI Act/un on the Nat/one! R VP Regret ‘a and Other Alleged Defects rn th. Math Proposo!s Como,enta. EPA received divergent cornmeri , on the apprpyiiate prcoeu for and timing of a final action on the C3nnectjcut and Rhode Island SIP r vt i’ s. Rhode Island argued that EPA I Lake final action r.s soon as possible. On the other hand, the Amcr can Petroleum Institute (API) felt that because of “erous allegedly unresolved issues raised In their substantive comments EPA should at a minim, ,, , , repropose action an the revision to deal with these issues before proceeding to final action. Re ponse. EPA conclude. that given its interpretation of the relevant law and the seasonal nature of the Connecticut and Rhode EalRnd revisions, the Agency should proceed expeditiously to final action based on the record currently before it. EPA Is impersnaded by API’. claim that circumstances have so changed since the )ropoaed approvals of the Connecticut and Rhode Island revisions that we should reopen the comment period or withdraw and repropose this action. EPA’s proposed Federal Register notices for the Connecticut and Rhode Island RVP programs explicitly discussed the possibility that EPA would take final action on the national RVP program prior to final action on the state programs. EPA dearly presented the path EPA proposed to follow and the conclusion, we proposed to reach In the event that the Federal RVP regulations were finally promulgated. Furthermore, in the final Federal Register notice on the national RVP program, EPA exp- licitly discussed consideration of different state RVP control programs. In this case EPA cendudes that It Is not necessauy to issue a reproposai prior to taking final action. EPA believes that It has adequately responded to all of the substantive comments raised by commenters In the substantive discussions presented above. Obviously. additional analysis on audi technical Issues could alway, be conducted, However, adnsinlstrative agendes generally have the dlsmetlon to determine when Issues have been aired sufficiently and to close the record and proceed to final action , consistent of course with the need to act in a reasoned, non-athtteary fashion. Vermont Yankee Nuclear Powerv. N.AD.C.. 435 US, 51 554 -655(1978). Further. EPA should not delay action on a S W revision in such a , np,rn. , that would thwart the state’s intent in requesting the SIP revision. In this case, Connecticut and Rhode Island have su nitted a seasonal requirement that since currently preempted must be approved In a tlmsiy fashion In order to effectuate the states’ intent that the regulations provide emission reductions benefits to the upcoming asim / Rules and RegWati season. Therefore, EPA shcuj j zna. bes* efforts to act on the iflfoflflatlon ava Jab1e to it now to the extant that i ii, adequate or else the agency would thwart the states’ Intent with regard to the 1989 ozone se asoo. Since EPA has concluded that the exi ,ti re i sufficient, EPA can prcoeed to fluial action at this time based on that reco In EPA’. proposal on the Rhode Islawj SIP revision we indicated that there was a problem m l ii the test method sacti of Regulation Number ii. The zeguiatjo allowed alternative test method, “ approved by the Director.” EPA stated that such method, must also be approved by EPA or else the altennativ methods must be elinijoatet EPA’s proposal was made with the understanding that this defect would be cured prior to final EPA action. On April 24. 1989 Rhode island submitted Its revision to Regulation Number 11. The revision adds the words “and EPA” to the end of the relevant sentence. It also changes the specific designation (D323-82J of the ASThI test method for the determination of RVP to a more general designation (D323). This gives the state the flexibility to use the 1982 version of the test or the 1958 version. Both version, will result In accurate measurements of the RVP of gasoline. EPA find, that its prior concern, were addressed In exactly the manner EPA had suggested at proposal and that the test methods section Is approvable as revised since It is now fully enforceable. EPA Is approving this revision to the Connecticut and Rhode Island Ozone State Implementation Plans to control gasoline volatility. Including any waivers Connecticut and Rhode Island may grant under the program. EPA has also made the finding that the Cnrn srth ut and Rhode Island SIP revisions meet the requirements of section 211(c)(4)(CJ of Lhp Act for an exception to federal preemption. The Administrator has determined that there Is good cause, Within the maanung of 5 U.S.C. section 553(dX3), to make this action effective less than 30 days after publication. The Industry has been on notice sjpcs the Ad tii1 trator appry,ed tLe Mas.” ‘ ‘ . - lIP (54 FR ?i.? ,.” ’’ Act. ..,, . . .eovo In ai ‘ akr ,. , extent necessary to provide w attainment Making this action effective on the same date as the Massachusetts RVP rule provide, the Industry with a uniform effective date for two con eogs states that both have rule, limiting RVP to to pet. Federal Register / Vol. 54, No , 106/ Friday, Jun. 2. 19 ------- Fedira] Regist’ Vol. 54. No. 105 1 Friday. June 2. 198’ Rules and Regulations 23661 Under section 307(b)(1) of the Act. petitions for judicial review of this action must be flied in the United States Court of Appeals for the appropriate cucuit by (60 days from date of publication). This action may not be challenged later in proceedings to enforce its requirements (see 307(b)(2)). The Office of Management and Budget has exempted this rule from the requirements of Section 3 of Executive Order 12291. List of Subjects In 40 CFR Part 52 Air pollution control. Hydrocarbons. Ozone. Incorporation by reference. Ns Incorporation by reference of the State implamentation Plans for the State of Coanecticut and the State of Rhode Island wu approved by the Director of the Federal Register on July 1. 1982 Authority. 42 U.S.C 7401-7842 EPA Ii today approving the Connecticut and Rhode Island SIP revisions pertpining to their state gasoline volatility programs. Date: May 10.1989. William K. Reilly. Admà !st rotor. For the reasons set forth In the preamble. Part 52 of Chapter 1. Title 40 of the Code of Federal Regulations is amended as follows: PART 52—(AMENDED] 1. The authority citation for Part 52 continues to read as follows: Aathclty 42 USC. 7401-7642 2. Section 52.370 is amended by adding paragraph (c)(50) to read as follows: f 52.310 ldanuflcailon 01 pfan • • S S (c) (50) Revisions to federally approved section 22a—174—20(aJ of the Regulations of Connecticut State Agencies. submitted on January 27. 1989 by the Department of Environmental Protection, limiting the volatility of gasoline from May I through September 18 beginning 1989 and continuing every year thereafter. Including any waivers to such limitations that Connecticut may grant In 1989. the control period will begin en June 30. (i) Incorporation by reference. (A) Amendments to subsection 22a- 174 —20 (a) of the Regulations of Connecticut State Agencies, entitled “Storage of ‘volatile organic compounds’ and restrictions for the Reid Vapor Pressure of gasoline.” effective in the State of Connecticut on December 30, 1988. Subpart 00—Rhode Island S. Section 52.2070 Is amended by adding paragraph (c)(33) to read as follows: * 52.2010 dinaflcsoon of plan. • • • S S (c) (33) Revisions to federally approved Air Pollution Control Regulation Number 11 submitted on November 7. 1988 and April 24.1989 by the Rhode Island Department of Environmental Management. i .miting the volatility of gasoline from May I through September 15. beginning 1989 and continuing every year thereafter.including any waivers to such limits Rhode Island may grant. in 1989, the control period will begin on June 30. (1] Incorporation by reference. (A) Amendments to Rhode Island Air Pollution Control Regulation No. 11, effective July 5, 1979, entitled, “Petroleum Uqulds Marketing and Storage,” sections 11.7.1 flIed with the Secretary of State of Rhode Island on August 11. 1988 and effective in the State of Rhode Island on August 31. 1988. (B) Amendments to Rhode Island Air Pollution Control Regulation No. 11. effectIve July 5.1979. entitled. “Petroleum Liquids Marketing and Storage.” amendmends to section 11.72 filed with the Secretary of State of Rhode Island on April 27,1989, and effective In the State of Rhode Island on May 17, 1989. f52 I (Amand. 4. The table in 52.2081 is amended by adding a new entry to “No. 11” to read as follows Taai.a 52.2081.—EPA APPROVED RULES AND REGULATIONS Slate Oteoon TiSiI $ic ea Date Sii Usd by te Slate A omd by L 7Q C......zWtfrteppro sd seceons • S • . S S S No.11 ‘‘‘ .‘ S.. 555 555 551 11107108., 04124108 2. lose. 84 (c$(33) rutes I 84 tan en la08y et seo e from Jima 30teSspL15 ,1S89,endMsy1 SepLi5. i ‘ ir* yssa g 5.i.sIL.._ s . I I S S S S IFR D cc. 89-12984 Filed 0-1-89 8:45 amI , ‘ FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 22 ( C.n.,.J Docket No. SS—3 5$; FCC 89—1411 dment of Sections of P.,t 22 of the Commission’s Rules as They Apply to Applications To Serve Rural Service Areas £ y Federal Communications Commission. ACTIOSC Final rule; petition for reconslderafion clarification. et ’inr . In this Fourth Order on Reconsideration. (Reconsideration Order), the FCC considered the Petition for Reconsideration filed by the Cellular Telecommunications Industry Association (CflA) of the Fourth Report and Order in Docket 85 -388. In the Fourth Report and Order, the FCC had amended 22.917 of Its rules by adopting financial requirements for non. wireline cellular applicants for Rural ServIce Areas (RSAs). CTIA contended that these requirements did not achieve the Commission’s goal of limiting applicants to those who sincerely Intended to provide cellular service. The effect of the FCC’s action in the Reconsideration Order is to deny CFIA’. petition and reaffirm its findings and rule amendments in the Fourth Report and Order. The FCC also made minor nan4ubstantive amendments to I 22.917(a)(3) and * 22.917 (e) to darify references to ether parts of I 22.917. Ct1V! DAYC May 22,1989. *ooessm Federal Communications Comml.eica, w19 M Street, NW., Washington, DC 20554. a n mea *,iou coInacT David H. SiebL Mobile Services ------- 25572 Federal Register I Vol. 54. No. 115 / Friday. June 1(3, 1089 / Rules and Regulations The State may offer any na Lion that ii considers helpful to rpartment’s consideration of the mutter of sanchnns. including, but not limiLed in, lc iqintive actions, budgetary ruiisidci c ions, judicial actions, past and current operat:onal enforcement programs, as well as proposals for specific new programs. (e) On the basis of the information provided by the State and other ii iormation in the possession of the Department, the Secretary will issue a final decision, in writing, regarding the State’s compliance and, if applicable, the amoirnt and liming of any reduction of apportionments A copy of that decision will be transmitted promptly to the State. IFR Doc. 09—14232 Filed 0—15—89. 845 aml BILLING CODE 49i0-22-M ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [ FAL—3601—2 1 Approval and Promulgation of nentatlon Plans; Revision to the f New Jersey Implementation r Ozone AGENCY: Environmental Protection Agency. ACTION: Final rule. SUMMARY: EPA is approving the State Implementation Plan (SIP) revisions submitted by the State of New Jersey. This revision will reduce emissions of volatile organic compounds from gasoline by limiting the Reid Vapor Pressure (RVP) of gasoline sold between June 30 and September15 in 1989 and between May 1 and September 15 of each year thereafter to 9 pounds per square inch. EPA is also finding that the New Jersey RVP regulations are “necessary to achieve” the national ambient air quality standard (NAAQS) for ozone and are therefore excepted from preemption under section 211 of (he Clean Air Act. The intended effect of this action is to make necessary progress towards attainment of th ozone standard as expeditiously as practicable as required under the Clean Air Act. EFFECTIVE DATE: This action will be effective June 30, 1989. The Administrator has determined that there cause, within the meaning of 5 553(d)(3), to make this action e less than 30 days after The industry has been on notice since the Administrator approved the Massachusetts RVP SIP (54 FR 19173: May 4. 1909) that the Administrator was inclined to approve inconsistent stale RVP rules to the extent necessary to provide for attainment. Making this action effective on the same date as the Massachusetts, Connecticut and Rhode Island RVP rules provides the industry with a uniform effective date for all the state rules limiting RVP to 9.0 psi in the northeast, In addition, postponing the effective date beyond June 30 would undermine the State’s ability to achieve l.he reductions in 1989 summer ozone concentrations for which the RVP program was intended. ADDRESSES: Copies of the State submittal are available at the following addresses for inspection during normal bu8iness hours: Environmental Protection Agency, Region II Office, Air Programs Branch, 28 Federal Plaza, Room 1005. New York, New York 10278, Environmental Protection Agency, Public Information Reference Unit. 401 M Street SW.. Washington, DC 20460. New Jersey Department of Environmental Protection, Division of Environmental Quality. Bureau of Air Pollution Control, 401 East State Street, Trenton, New Jersey 08025. FOR FURTHER INFORMATION’CONTAC’T Mr. William S. Baker. Chief, Air Programs Branch, Environmental Protection Agency. 26 Federal Plaza, Room 1005, New York, New York 10278, (212) 264—2517. SUPPLEMENTARY INFORMATION: Introduction This notice describes EPA’s decision to approve revisions to the New jersey SIP which limit the volatility of gasoline from June 30 to September15 in 1989 and from May 1 to September 15 every year thereafter. The remainder of this preamble is divided into four sections. The first provides the background for this action, with respect to both chronology and the broad issues involved. The second section presents today’s action and EPA’s rationale. The third section summarizes the comments received on the proposed action and SPA’s responses to them. The final section discusses the enforceability of New Jersey’s regulation with regard to the test methods as discussed in EPA’s proposed rulemaking notice. Background On November 12, 1987. the Commissioners of the Northeast States for Coordinated Air Use Management (NESCAUM) signed a Memorandum of Understanding expressing their intention to reduce the Reid Vapor Pressure (RVP) of gasoline tolD pounds per square inch (psi) starting in the summer of 1988 and to 9 psi in the summer of 1989 and continuing every ozone season thereafter. Since there wore delays in adopting necessary regulations. the 1988 limit of 10 psi was eliminated and New Jersey passed a regulation limiting the RVP of gasoline to 9 psi from May Ito September15 starting in 1989 and continuing each year thereafter. On January 27. 1989, New Jersey submitted a SIP revision to EPA for approval to implement this provision. On March 22, 1989. EPA published a notice (54 FR 11868) taking final action on national regulation of RVP, to take effect this summer. The maximum allowed summertime RVP in New Jersey under the federal regulation Is 10.5 psi. Under section 211(c)(4)(A) of the Clean Air Act (the Act). EPA’s final action preempted inconsistent state control of RVP. except in California. In its final action, EPA noted that states could be exempted from preemption only if EPA finds it is “necessary” to achieve the National Ambient Air Quality Standards (NAAQS) as provided in section 211(c)(4)(C) of the Act. Section 211(c)(4J(C) of the Act states: “A State may prescribe and enforce, for purposes of motor vehicle emission control, a control or prohibition respecting the use of a fuel or fuel additive in a motor vehicle or motor vehicle engine If an applicable implementation plan for such State under Section 110 so provides. ‘Ihe Administrator may approve such provision in an implementation plan, or promulgate an implementation plan containing such a provision, only if he finds that the State control or prohibition is necessary to achieve the national primary or secondary ambient air quality standard which the plan implements.” In its March 22, 1989 no lice, EPA made specific note of the NESCAUM states’ initiatives and the’ conditions for EPA approval of state RVP regulations. On March 28, 1989. EPA published a notice (54 FR 12654) proposing approval of the New Jersey SIP revlèion. EPA also proposed to find that these revisions were “necessary” to achieve the NAAQS for ozone within the meaning of section 211(c)(4)(C) of the Act and, thus, meet the requirements for an exception to federal preemption. Description of Today’s Action EPA today ajproves re daI’or s’to ’the New Jersey SIP which limits gasoline - volatility to9 psi between June 30 and September15 in 1989 and between May ------- Federal Registei ,‘ Vol. 54, No. 115 I Friday, June 16, 1969 / Rules and Regulations 25573 I ind September15 ii. each year thereafter. The New Jersey program includes authority for the State to issue waivers to individual suppliers if necessary to avoid supply dislocations is approving the progr iin as a whole, including any waivers the State might issue under this authority. This aspect of EPA’s approval is discussed in full under section 9 of the next portion of this notice describing EPA’s response to comments. EPA is also explicitly finding that the New Jersey revisions are “necessary to achieve” the NAAQS within the meaning of section 211(c)(4)(C) of the Act. This means that New Jersey’s RVP regulations are not preempted by the federal RVP regulations promulgated on March 22. 1989. EPA’s rationale for this action and its effective date are presented below. In this context many issues raised by commenters on the proposal will be addressed. The remaining comments will be discussed in the next portion of this notice. In approving the New Jersey RVP SIP revisions. EPA must consider requirements imposed by two different sections of the Clean Air Act. As with all SIP revisions, Section 110 provides the requirements for approval into the SIP. In this case, since EPA has promulgated federal RVP regulations. section 211(c)(4)(A) preempts inconsistent state control. However, section 211(c)(4)(Cj provides that the Administrator may except a state RVP control program from preemption if he finds it is “necessary” to achieve the NAAQS. Thus, the New Jersey revisions must satisfy both section 110 and section 211 requirements to gain approval. EPA has concluded that the New Jersey RVP regulation are “necessary” to achieve the ozone NAAQS. In reaching this conclusion EPA has followed the test first articulated in approving the Maricopa County. Arizona SIP (53 FR 17413 (May 18. 1988) and 53 FR 30228 (August 10, 1908)) and later presented in the prapo’scd approval of the New Jersey revisions. EPA stated that if, after accounting for the possible reductions from all other reasonably available control measures, New Jersey could demonstrate that RVP controls are still required to achieve the standard, then RVP controls are necessary within the meaning of section 211(c)(4)(CJ. EPA will not Interpret that provision to require a state to impose more drastic measures such as driving prohibitions or source shutdowns before it can adopt its .own fuel control program. As discussed In the notice of proposed rulemaking (NPR). the record indicaLes that New jersey needs volatile organic conipound (VOC) emission reductions oi-i the order of at least 31 9 percent from 1907 inventory levels to achieve li e standard The State reviewed approximately 22 measures suggested by EPA as reasonable in addition to RVP control to 9 psi and found they could together potentially achieve a 26.4 percent reduction from 1987 levels. As indicated at proposal, while EPA’s regulation of gasoline to 10 5 psi reduces the emission reduction attributable to the State regulation, it does not affect the bottom line—a shortfall will still exist. EPA’s technical review of the data presented in the State submission and by the commenters affirms the conclusion that a shortfall will exist even with all reasonable State and federal measures. EPA continues to believe that the fact that the State RVP regulation might not by itself fill the shortfall and hence by itself achieve the standard does not mean the rule is not “necessary to achieve” the NAAQS. It is simple logic that “necessary” is not the same as “sufficient.” EPA believes that the “necessary to achieve” standard must be interpreted to apply to measures which are needed to reduce ambient levels when no other measures that EPA or the State has found reasonable are available to achieve this reduction. fleyond such identified “reasonable” measures. EPA need look at other measures before RVP control, only if it has clear evidence that RVP control would have greater adverse impacts than those alternatives. EPA has no such evidence here. Therefore, EPA can defer to New Jersey’s apparent view that RVP control is the next less costly (or is itself a reasonable) measure. Thus, EPA concludes that New Jersey’s RVP regulations are “necessary” to achieve the NAAQS. Summary of Public Comments and EPA’s Responses The major Issues discussed in the comments are: (1) What constitutes a finding of “necessary to achieve” the standard under section 211(c)(4)(C); (2) whether there has been an adeqtiate technical demonstration that controlling RVP to 9 psi is “necessary” (I.e. whether the threshold for exemption from preemption has been crossed); (3) the scope of EPA’s discretIon assuming a finding that State RVP controls are necessary to achieve the standard; (4) what effect the 9 RVP limit in New Jersey will have on the cost and supply of gasoline in the State and the Northeast; (5) driveability and safety concerns; (6) whether there Is an ozone problem in New Jersey: (7) whether the State has an adequate enforcement program or sufficient resources to iinpLemeqi the State regulations. (6) whether the State provided “reasonable opportunity” for public comment, (9) what exemptions or waivers from the State regulations should be allowed, (10) the appropriate timing For making the Slate regulation effective; and (11) vhcthier EPA should withdraw or repropose this action or reopen the public comment period in light of EPA’s recent promulgation of federal RVP regulations and other alleged deficiencies in EPA’s proposed action. Each issue is explored in detail below. I What constitutes a finding of “necessary to achieve” (he standard under section 217(c)(4)(C) of the Act? a. Making the “Necessary” Finding Without a Demonstration of Attainment Comments: One group of comments questioned EPA’s ability to make a finding that New Jersey’s RVP regulation is necessary to attain the ozone standard without goingihrough the complete planning process involved in approving a state’s response to EPA’s finding that the current SIP is substantially inadequate to achieve the stajidard (the “SIP call”). Several comments stated that EPA cannot approve New Jersey’s RVP regulation as a SIP revision without finding that the SIP as a whole achieves attainment of the NAAQS for ozone. Related comments questioned EPA’s ability to determine whether New Jersey’s RVP controls are necessary without a new updated inventory of VOC sources which EPA will require from the stales with ozone nonattainment areas as part of their response to the SIP calls. Response: Through its SIP calls. EPA has imposed on states like New Jersey an obligation to revise their ozone SIPs and demonstrate attainment of the standard. The thrust of these comments is that EPA cannot make a finding of necessity without the states’ first having gone through the new planning process and developing a new demonstration of attainment. EPA does not interpret section 211(c)(4)(C) to require a complete demonstration of attainment in order to approve a measure which will contribute to attainment. Forcing a state to demonstrate attainment before allowing it to adopt stricter fuel controls would yield perverse results. Areas with the worst ozone nonattainment problems, which have the most difficulty assembling a demonstration of attainment, would be disabled for perhaps several years from adopting clearly necessary controls ------- 25574 Federal Register / Vol 54, No. 115 / Friday, lune 16. 198 J / Rules and Regulations hich were stricter than the national VP on trots Several commenters noted ii New Jersey so far has nor been able to identify any combination of control rw, si;rrs which would bring the State into attainment. It is precisely in areas like New Jersey. with an especially dilficult nonattainment problem, where the expeditious implementation of new r.uiitrolq, and hence the finding of necessity under section 211(c)(4)(CJ. is most appropriate. Beyond that, it is reasonable for EPA to use the best information it now has available to determine whether New Jerseys RVP program will be necessary to achieve the standard without having to wait for New Jersey to complete its planning response to the SIP call, including its updated inventory. As explained below, the VOC inventory and reduction figures New Jersey submitted to EPA were based on reasonably reliable models EPA has used in the past. Such figures are always capable of refinement, but in the Agency’s judgment the expenditure of time required to do so is not worth the marginally improved accuracy. See Vermont Yankee Nuclear Power v. - Al R.D.C.I 435 U.S. 519, 554—555 (1978). PA has not yet set a date certain by ich New Jersey must attain the ozone ndard. Congress may address the widespread nonattainment problem In the amendments to the Act now being considered. In the meantime EPA has also proposed its own policy for how to deal with SIP planning for nonattainment areas in the post—1987 period (52 FR 45104, November 24,1987). l’he air quality analysis New Jersey submitted made it clear that RVP control beyond the federal requirements will be necessary to any attainment plan, whether the attainment date that Congress or EPA selects is imminent or long-term. Moreover, there is widespread agreement among EPA and the states in thc Northeast that major VOC reductions, probably exceeding the 31.9 percent estimated by EPA in this case, will be required to get close to attaining the ozone standard. Nothing in the air quality data from the summer of - 1908. which have become available in quality-assured form since publication of the proposal, indicates that the reduction requirement projected by the New jersey analysis overstates the reduction necessary to achieve the standard. Beyond that, the history of ozone planning over the last decade es it clear that reduction targets are pm overestimated. Irthermore, EPA’s approval of this - - sian now is consistent with section’ 110(o)(2)(Ajof the Act, which requires atta’rnment “as expeditiously as practicable “ Interpreting Section 211(c)(4)(C) to require a complete attainment demonstration before EPA can approve (and a state can implement) a fuel control that the sta c has determined to be practicable and that would advance the attainment date would effectively put section 211(c)(4)(C) in conflict with section 110(aJ(2)(A). It is doubtful that Congress intended EPA to choose an interpretation that would create such a conflict. b.The Standard EPA has Applied to Determine Whether F sel Controls are Necessary Compared With Other Controls Commenis: Several commenters maintained that EPA had not adequately analyzed whether there are other control strategies reasonably available which New Jersey should implement before resorting to RVP controls inconsistent with the federal regulation. EPA wilt address these comments in section 2c below. Other comments concerned the standard that EPA should use to determine whether RVP controls are necessary compared to other controls. Response: In the proposal for this action. EPA used the approach it Cirst announced when approving the Maricopa County Arizona SIP (53 FR 17413 (May 18. 1908); 53 FR 30228 (August 10, 1988)) to determine whether RVP controls beyond the federal program are necessary to attain the ozone standard in New Jersey. Under that approach, If after accounting for the possible reductions from all other reasonable control measures. New Jersey could demonstrate that RVP controls are still required to achieve the standard, then RVP controls are necessary within the meaning of section 211(c)(4 )(C). For the reasons stated in the Arizona action and the New Jersey proposal, EPA will not interpret section 211(c)(4)(C) to require a state to impose more drastic. measures such as driving prohibitions or source shutdowns before it can adopt its own fuel control program. New Jersey has demonstrated to EPA “that implementing all the control measures which EPA now believes to be reasonably available to New Jersey for VOC control (including measures that the Stale has already adopted and is. now beginning to implementJ would not achieve compliance with the ozone standard. The roster of control measures. New jersey examined corresponds to the list of controls EPA has identified car states to implement in response to the ozone SIP catls, arid represents EPA’s best judgment as to the controls which could now be reasonably implemented Sec EPA’s proposed post-1987 ozone policy (52 FR 45104, appendix C, November 24, 1987). Alter escamining all controls EPA has determined to be reasonable, a state is free to make its own determination as to what control measures should next be employed. One comment maintained that EPA s method for determining what is necessary is too vague because it would allow EPA to approve state fuel controls ‘simply because alternative measures are more inconvenient, unpopular, or costly.” As discussed in section 2c below, EPA examined reasonable alternative controls which New Jersey could implement and determined they would not achieve enough reduction to achieve the standard. EPA also has determined Ihat ,remaining controls such as gas rationing, driving reductions, and source shutdowns are so drastic that Ihe State may resort to fuel controls first. This judgment concerning what is too drastic is a complicated policy determination requiring the Administrator to weigh precisely those factors which the commenter would exclude from his consideration— whether the remaining alternatives are costly or unpopu1ar InAszwco Oil Co v. Envirorunentof Protection Agency. 501 F.2d 722.740-741. the court distinguished’ between the factual foundation which EPA must provide in Its administrative decisions arid po’icy judgments which are an integral part of the findings Congress requires the Administrator to make under’ the Act Where by contrast, the regulations tarn on choices of policy, on an assessmen 5 of riskq, or on predictions dealing with matters an the frontiers of scientific knowledge. we will demand adequate reasons and explanations. but not “findings” of the sort familiar from the world or udjudlcatipn...,. Id, a4 741. EPA’s and Net, Jersey’s analysis of reasonably available controLa is based or a factual record supported by the best analytical tools the agencies had evairable to them at the time. EPA’s fudgm ut that Slate fuel regulation is a less drastlo course than gas rationing and other unpopular controls so far not implemented in any SIP is clearly a matter on the frontier of air pollution control planning. and therefore cannot (and need not), be supported by the same technical record as, for example, EPA a . determination that New jersey needs at lassie 31.9 percent reduction from its 198 inventory to attain the standard. ft ------- Federal Register / Vol. 54, No. 115 I Friday, June 16, 1989 / Rules and Regulations 25575 2. 1 love New Jersey and EPA made on adequate technical demonstration that controllln8 RVP to 9psi is ‘necessary” to attain the NAAQS? a. Adequacy of Emission Inventory Comments: Several petroleum industry commenters argued that the emission inventory used in the technical demonstration is inadequate. They pointed out that EPA has already requested that New Jersey prepare a new Inventory as part of its response to the SIP call. Therefore it is argued that New Jersey’s reliance on the old Inventory is inappropriate. Response: As described in EPA’s Technical Support Document (TSD), the emission inventory used by New Jersey and reviewed by .EPA is based on EPA ’s “Compilation of Air Pollutant Emission Factors.” known by its document number “AP—42.” This document and its updates are EPA’s longstanding guidance for determining emissions for inventory purposes and has served as the basis for ozone SIP inventories since the mid-1970s. Mobile source emissions were estimated using the then current version of EPA’s mobile source emissions model, MOBILE3, consistent with standard EPA guidance. While EPA has called for many states, Including New Jersey, to update their inventories for post-1987 SIP planning purposes, the Agency has continued to use existing inventories in evaluating current control proposals. EPA expects the New Jersey inventory, not due until late 1909, to show higher emissions than the current inventory since it is expected to include more sources and improved quality assurance. Thus, if the current inventory is lacking, it understates current emissions and errs such that the likely percentage reduction needed to attain the standard is also understated. As stated in the NPR. EPA believes that if there is an error In quantifying the emission reductions resulting from control to 9 psi, those reductions are understated. If the newly released mobile source emission model, MOBILE4, which includes the effects of running losses, were used, one would expect the reduction in tons of VOCs to increase significantly. Furthermore, contrary to the cornmenters’ belief, the estimated emission reduction is based on reductions achieved during only the four and one-half months each year the regulation is effective. This approach may understate the reduction since 9 psi fuel may be in the distribution system up to two additional months on each eid of the regulatory season. Also, contrary to the commenters’ claims, EPA’s TSD does contain an estimate of the emission reduction achieved by going from EPA’s 10.5 psi limit to New Jerseys 9 psi limit. EPA estimated a 2.3 percent reduction from the 1987 inventory. This estimate does account for nonlinearity in emission reductions with decreasing RVP limits. b. Appropriateness of the Modeling Demonstration Comments: While some commenters agreed that modeling was necessary to evaluate the air quality benefit of the RVP reduction, they objected to EPA ’s reliance on the Regional Oxidant Model (ROM). The conimenters also raised concerns about the appropriate hydrocarbon to nitrogen-oxides (NOx) ratios to be used in such modeling. A third modeling issue concerns New Jersey’s and EPA’s inability to associate a quantified increment of improved air quality with the control of RVP to 9 psi. Response: The claim that the ROM does not provide the spatial resolution needed for accurate prediction in individual urban areas loses sight of the fact that we are evaluating a statewide program. The Urban Airshed Model suggested by the commentera is appropriate for large urban areas but would have to be run over at leasL two different geographic domains to cover the entire state. Caught between the two available model scales, it Is EPA’s technical judgment that the ROM is an appropriate tool to use in evaluating future reductions needed for New Jersey. EPA understands the concern that past atralcgies have focused almost exclusively on controlling VOCa instead of NO 1 . As Indicated In EPA’s proposed post-1987 ozone strategy, future control scenarios are likely to include NO 1 . However, it Is highly unlikely that NO 1 control alone will suffice. The best technical Information available to EPA at this time concerning the Northeast ozone problem paints to the need for substantial VOC reductions and at least modest NO. reductions in the future to attain the ozone standard. The last modeling issue concerned New Jersey’s and EPA’s inability to associate a quantified increment of improved air quality with the control of RVP to 9 psI. While such a modeling exercise would be ideal, it is unlikely that one would have much confidence in the outcome of such a sensitivity test, The atmosphere’s response to emission reductions of ozone precursors Is highly nonlinear such that small increments of reduction may show little or no effect on tl)eir own. However, when the reductions from the State’s many strategies are aggregated, the total impact becomes quantifiable. Thus, even though New Jersey and EPA cannot pinpoint where the air quality will improve by what amount on what day, we are confident that there will be a net improvement in ozone levels if New Jersey were to decrease VOC emiss on by 2.3 percent. c. Consideration of Other Alternatives Comments: Commenters expressed concern that New Jersey and EPA have failed to consider other significant N. alternative control measures that could lead to attainment, including Stage II vapor recovery systems, controls on municipal landfills, source categories that are listed in EPA’s proposed post- 1987 strategy and a host of transportation control measures (TCMs). Other comments inquired as to how New Jersey and EPA arrived at the reductions for the control strategies that were presented in the•NPR and TSD. Response: EPA believes that sufficient alternatives were considered. EPA and the State have considered the emission reduction potential of 22 different point and area source categories corresponding to most of those suggested by EPA in its proposed post- 1987 ozone policy (52 FR 45104, appendix C, November 24, 1987). Not surprisingly, some of the source categories are not applicable (as noted In the TSD) because there are no major sources In those categories in New Jersey or because the State has already adopted controls for those categories. As noted in the NPR. most of the relevant categories have potential reductions that are very small and. when combined, total less than 0.6 percent of the 1987 inventory. While, us one commenter noted, some of EPA’s proposed post-1987 categories were not evaluated by the State (such as traffic maintenance paint), based on EPA’s experience with these categories in other states, it is anticipated the contribution from them would be significantly less than one percent. As mentioned in the NPR, other strategies previously identified by the State as having the greatest potential for significant future VOC reductions that have not been fully implemented would produce emission reductions on the order of 25.8 percent, for a combined total reduction of 26.4 percent in conjunction with the minor categories mentioned above. This would 8tlll leave a shortfall of 5.5 percent. Two comznenters noted that the proposal did not account for the emissions reductions from Stage II vapoi recovery systems or from controls on emissions from municipal landfills. New Jersey adopted Stage 11 controls on ------- 25576 Federal Register / Vol. 5.4, No. 115 / Friday. June 16. 1989 / Rules and Regulations br iary 22. 1 O8 and controls on fliSlI(lfls horn municipal landfills on June L 1987 Since both regulations hive been submitted to EPA as SIP revision rcque ts and are currently being implemented by the Stale, the shortfall discussed in the NPR was calculated above and beyond the reductions attributable to these controls. It is true that New Jersey has not implemented the types of TCMs suggested by EPA in its proposed post. 19137 ozone strategy. However, based on IPAs experience with the implementation of these measures in other areas, we expect that New Jersey ould only achieve an additional 2.0 percent reduction by adopting similar s rategies. New Jersey would still have an estimated shortfall of approximately 3 5 percent. While EPA recognizes that other TCMs may be needed in New Jersey, the remainder are difficult to quantify, yield small reductions individually, and, as rvidenced by the public reaction to the EPA.promulgated Implementation plans containing such measures in the 1970’s (see H.R. Rep. No. 95—294, 95 Cong. 1st g ,, 55 ,, reprinted in 4 Legislative History the Clean Air Act Amendments of at 2748—55 (1978)). generally can be pected to have more significant adverse effects on the public as a whole than RVP controls would. To be sure, if there were sufficient evidence for EPA to conclude that the state’s RVP controls would result in significantly more severe impacts than other measures that neither EPA nor the state has yet identified as “reasonable” for the state to implement, then it might well be appropriate for the Agency to account for the emission reductions that those other measures would achieve before determining the shortfall against which to judge the RVP controls. The Agency ‘does not believe, however, that the State’s RVP control would produce significantly more severe effects than such alternatives (e.g. than a trip reduction ordinance of the type that Arizona found reasonable for application in Phoenix and Tucson). The shortfall demonstration presented in EPA’s NPR and TSD was the outcome of a comprehensive review of the air quality and State Implementation Plans for the ozone end carbon monoxide nonattainment areas of New York and New Jersey which was performed by the Air and Waste Management Division of Region II. This review, entitled “An luation of the Programs to Attain the ne and Carbon Monoxide Standards .Jew Jersey and New York,” examined air quality data for the per4od 1981 through 1900, modeling studies, and SIP commitments to determine air quality trends and predict (he ability of each state to attain the standards. In sum, New Jersey and EPA have indeed examined a broad range of potential emission reduction strategies and have still identified a significant shortfall in the level of emission reductions likely to be needed to achieve the ozone standard. 3. What is the scope of EPA ‘s discretion assuming a finding that State fl VP controls are necessary to achieve the standard? a. Permissible Bases for EPA’s Decision To Approve State RVP Controls CommenLs: Several commenters asserted that even where EPA has determined that state fuel controls are necessary to achieve the standard. EPA may nevertheless disapprove those controls if EPA determines that the economic or fuel supply impacts of the slate’s regulation are unreasonable. These commenters suggested that EPA may give significant consideration to costs because section 211(c)(4)(C) provides that the Administrator “may” approve a SIP revision Imposing state fuel controls once he makes the Iinthng of necessity. Conversely, other commenters maintained that EPA may not disapprove the New Jersey SIP revision based on economic grounds. once EPA has made the finding of necessity. Response: EPA believes that it must consider cost to some limited extent whenever the Administrator decides whether to make a finding under section 211(cl(4)(C) that a fuel measure is “necessary” for attainment. As discussed above, to determine whether state fuel controls are necessary, EPA must look first at whether other measures that it determines are reasonable (and, perhaps, other measures the sLate has adopted) will by themselves achieve timely attainment, Arguably, an alternative measure is “reasonable” only if its effects are less drastic than the effects of the fuel controls. Clearly the cost and supply impact of the state fuel controls will be “ h factor in any such judgment. EPA does not interpret the use of “may” In section 211(c)(4)(C) to give the Administrator unfettered discretion to disapprove the SIP revision on economic grounds once he has made the finding that state fuel controls are necessary to achieve the standard. Section Z11(c)(4)(C) must be read in the context of the preemption created in section 211(c)(4)(A), which prohibits states from odopting inconsistent fuel controls in their SIPs, or anywhere else, for air pollution control purposes. In the face of this prohibition, the sole effect of the ‘may” in section 211(c)(4)(C) is to authorize the Administrator to overcome a provision (section 211(cJ(4)(AJJ that would otherwise bar him from approving the SIP revision. The use of “may” in section 211 (c)(4)(C) does not eliminate the obligation that section 110(a)(3flA) places on the Administrator to approve the SIP revision, provided t meets the requirements of section 11O(a)(2). See Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 98 (1975). Section 110(a)(2) requires the Administrator to approve a SiP revision if, among other things. it may be necessary to insure attainment and maintenance of the standard. Section 110(a)(2J(B). EPA may not consider the economic impact of a necessary SiP revision under section 110(a)(2): under that provision, it Is for the state to determine what economic costs are appropriate to achieve the standards. Union Electric Co. v. EPA., 427 U.S. 248,256-258(1976 ) . Beyond that, it would be incongruous for Congress to give EPA more discretion to reject a SIP revision for reasons unrelated to the goat of achieving the standard as quickly as possible precisely where EPA has determined that a SIP revision Is necessary to achieve the standard. Therefore, once EPA makes the finding that state fuel controls are necessary to achieve the standard, a finding which Includes a determination that such fuel controls are more reasonable than other available measures, EPA may not reject a state’s SIP proposal simply for economic reasons. One comineater cited Motor Vehicle Man ufoct urere Association v. E.P.A.. 768 F.2d 385. 389—390 (D.C. Clr. 1985). for the proposition that the use of ‘may” under section 211 commits the decision Co the discretion of the Administrator. In MVMA the court was examining EPA’s decision to grant a waiver under section 211(fl(4) of the Act for the use of fuel additives not substantially similar to those in the fuel EPA uses to certify the omissions from automobiles. The court was not examining section 211(c)(4)(C). which cUows EPA. upon making a particular finding not mentioned in section 211(f)(4). to act on a SEP revision submitted by a state after full hearing at the state level and subject to the requirements of sections 110 (a}(2J and (3J(A ). b. Intent of Federal Preemption Under Sec tioni 211 Comments: Several commenters insisted that EPA should disapprove ------- 25577 Federal Register I Vol. 54 , No, 115 / Friday, June 16, 1989 / Rules and Regulations New Jersey’s RVP controls because Congress intended to avoid a patchwork of different state fuel controls in favor of a uniformly regulated national rndrkct for fuels. These commenters expressed concern that the exception in section 211(c)(4)(C) to the rule of preemption under section 211(d114)(A) would eventually swallow the rule. Several comments urged EPA not to act inconsistently with its decision not to limit gasoline to9 psi in 1989 in the federal RVP control program. On the other hand, several comments were aimed at urging EPA to support the regional approach to RVP control that the NESCAUM states are undertaking One commenter pointed out that where Congress has not acted to address the ozone nonattainment problem, it is reasonable to let the states do all they can to attain. Response: It Is clear that section 211(c)(4)(A) indicates that Congress desired’to maintain a nationally regulated market for fuels. It is equally clear that section 211(c)(4)(C) indicates Congress recognized that there will be states where theair quality problem Is so severe that the interest in a natIonally regulated market must bow to the need for. additional.state controls on fuel content. EPA has.not.been able to find any legislative history which illuminates with any detail beyond the language of the-Act how EPA should strike this balance. It is reasonable to infer that Congress was aware that the air quality needs of particular states might create varying fuel content requirements, and that Congress accepted that risk in favor of protecting the public health. Several commenters cited Exxon Corp. v. City of New York, 548 F.2d 1088 (2d Cir. 1977), as precedent that a uniformly regulated fuel market is the overriding purpose behind section. 21l(c)(4). In Exxon the court, however, was not faced’ with a claim for an exception to preemption under section 211(c)(4)(C), and specifically left it to EPA to determine whether such an exception is appropriate: The Act sensibly provides for an exceplion from its comprehensive preemption of local regulation of motor vehicle fuels only when such regulation Is a provisIon in a state Implementation plan approved by the Administrator who has the competence to make the needed professional engineering and energy conservation decisions. Id. at 1096. Once EPA has made a finding of necessity under section 211(c)(4)(C), It is reasonable for EPA to Interpret the Act to place paramount Importance on protecting public health and achieving the standard. EPA believes that the oil industry’s concern that the exception will swallow the rule is overstated. As described above, EPA will approve inconsistent state fuel controls only where the state can demonstrate that exhausting all other reasonable alternatives will not achieve the standard, taking costs into account in determining reasonableness. This demonstration is not a trivial hurdle, and it is highly unlikely that every state with an ozone nonattainment area could make such a showing. Furthermore, a state is unlikely to burden itB citizens with the potentially higher cost of lower RVP fuel unless the air quality needs are compelling. Finally, regional initiatives such as NESCAUM’s help avoid a wide variety of state controls. In this case, the New Jersey RVP program i& virtually identical to the RVP programs already approved for Massachusetts, Rhode Island,. and Connecticut,.and, thus, provides supply requirements consistent with other Northeast states. EPA also believes that its decision not to impose a limit of 9 psi by 1909 in EPA’s RVP control prc gram does not preclude EPA from approving New Jersey’s SIP revision. When developing its federal RVP control’program, EPA imposed.controls across. the’nation, and had to determine the.leveLofRVP control which supply sources for the entire continental United States could reasonably meet. Further, although EPA was able to make this determination as to particular regions within the country, EPA. did not intend to account for the particular air quality needs of each state. 4. What effect will the 9 R VP limit in New Jersey have on the cost and supply of gasoline? Comments: Several commenters stated that New Jersey’s regulation would strain the distribution system and could cause some significant supply dislocation and cost increases. Several stated that even if refiners had the capacity to produce 9 psi gasoline, there would be logistical problems requiring the need for additional storage tanks for the gasoline-and excess butane. Other comments suggested that foreign imports-at 9 psi might not be available. Most of the oil company commenters stated that there will be some need for capital improvements.at refineries to meet the 9 psi standard. Several commenters stated that there will likely be a cost impact to the New Jersey standard and other commeniers stated that they were concerned about the increased cost. One other comment stated that the estimates of increased cost do not reflect the extra cost mcrease that could accompany a s gni1icant supply disruption. Proponents cited two studies as support for the position that supply is not a problem Response The potential supply problems arise out of two factors. First. decreasing the volatility of gasoline requires increased refinery capacity. It is certain that implementation of 9 psi volatility in the NESCAUM states will ercate a refining capacity reduction in the amount of gasoline capable of being produced at each refinery. This is true of both domestic and foreign suppliers. Second. the problem may be further exacerbated by the expected increased demand [ or gasoline in the summer months. Various studies have been conducted to determine how much refining capacity will be lost from implementation of 9 psi volatility in (he NESCAUM states, how much demand for gasoline is likely to increase in the summer of 1989, and what effect these factors will have on gasoline supply capabilities. The two studies done for NESCAUM and the one done for EPA are inconclusive. There appear to be numerous factors which make precise prediction’ of ihese’effects impossible. However, under the’EPA study (Sobotka study), estimates indicate that the volatility standardemay be feasible without serious supply problems. The Sobotka study cites the Department of Energy (DOE) as predicting that demand for gasoline should increase only in the range of I to 1.5 percent this summer. This estimate is also supported by other studies including one reported at a National Petroleum Refiners Association conference. The study also estimates that approximately a five percent refining capacity shortlall will occur at domestic refineries because of the volatility regulations in the Northeast states. The study estimates that with a 1.2 percent increase in demand for gasoline in the summer. US. refineries would be able to make up for a five percent domestic’ hortfall, and a ten percent import shortfall, without construction of new facilities or installation of additional equipment. Although various factors make it impossible to accurately predict the refining shortfall of imported gasoline, there is no strong evidence indicating that it will exceed ten percent. Thus, the Sobotka study suggests that it is likely that the resulting refinery capacity shortfalls from a 9 psi standard in 1989 should not result in supply shortfalls. In the unlikely event of unforeseen supply disruptions. the State of New ------- Federal Register / Vol. 54. No 115/ Friday, June 16, 1989 / Rules and Regulations 2 57B y has assured EPA that they hate uthority to take immediate steps to ide needed waivers or exceptions to the program. The State has committed to carefully monitor Ihc suppl situation this ye.ir and take appiopriate action, as may be liccessary, to ensure that supply problems do not occur as a result of its State RVP control program. See also the response to section 9 later in this notice for more discussion of State waivers or exceptions. 5. What effect will 9 R VP gasoline hove on driveobility in cold weather and on vehicle safut;’? Co,zinients: Several comrnenlers expressed concern that the 9 RVP fuel would cause hard starting. hesitation. and stalling in automobiles during the early spring and late fall. They stated that gasoline will have to enter the distribution system in March and will not be out until October in order to comply with the regulation. Other comments, including several from automobile manufacturers, indicated that there should be no adverse effect from the use of 9 RVP fuel. Response: We believe that the nature of the gasoline distribution system kes it very unlikely that 9 RVP fuel be available to consumers in March arly April. even if the blending-down process by that time has begun to reduce RVP. Continued availability of low-RVP fuel is even less likely by late October because the blending-up process will occur rapidly at the close of the control period. Nevertheless, the experience of California. which has required 9 RVP fuel for many years. appears to demonstrate that widespread driveabilily or fuel safety problems will not occur in the Northeast. We know of no evidence of extensive problems in California. despite significant operation at cool temperatures and high elevations. - As further evidence of this conclusion, t,ne can compare the true vapor pressure ITVP) experienced in fuel tanks at different times during the year. For exa nple, when corrected for elevation, gasoline in Billings, Montana at its January 1986 average RVP of 13.6 psi and at the historic low January temperature of —30 degrees Fahrenheit would result in a true vapor pressure of 1.0 psi. Similarly, for New Jersey. the analogous RVP and temperature of 10.0 psi RVP arid —12 degrees F. would also result in a TVP 011.0 In contrast, 8.5 _nsi RVP fuel at an analogous New Jersey pperature of 18 degrees F. would ult in a TVP of 1.8 psi, 80 percent her than the winter figure. We conclude from this that if low-volatility fuel were to reach consumers during \ ery low temperature weather, any degradation in driveability would be no greater (and would likely be less) than that experienced currently during the winter Conversely, low-volatility fuel should improve vehicle driveability in very hot weather by reducing the occurrence of such conditions as vapor lock and fuel foaming. 6. Is there really a severe ozone problem in New/ersey or the Northeast? Comments: A number of industry commenters, in urging EPA to disapprove the SIP revision, claimed that the air is really becoming cleaner and cleaner over time and that the ozone standard is being met more than 99% of the year. Environmental groups countered these claims with data from 1987 and 1980 which show a worsening of the ozone problem since 1980. They noted that 1988 was one of the worst ozone seasons on record across the Northeast. Response: EPA is firmly convinced thai there is a erious ozone problem in the Northeast. EPA’s conviction was evidenced by last year’s SIP calls to New Jersey and most other Northeast states. This SIP call was based on 1985— 1987 ozone monitoring data which ranked New Jersey among the worst ozone nonaltainment areas in the country. EPA’s concern is further heightened by the 1988 ozone season. The ozone standard was exceeded more frequently, at more sites, and at higher levels in 1988 than in 1987. 7. Has New Jersey demonstrated that it has on adequate enforcement program or adequate resources to implement the R VP regulation, as required by section 7 10 of the Act? Comments: One commenter questioned whether New Jersey has developed an adequate program for enforcement of the regulation. Another commenter noted that New Jersey is the only NESCAUM state that would enforce its regulation at the retail level. ‘Response: EPA does not agree with the commenters’ enforcement concerns. ‘ ‘he state’s decision to extend its RVP enforcement program down to the retail level reflects a concern that there may be the opportunity to increase the RVP of gasoline that has already left the refinery or bulk terminal by blending the gasoline with a higher RVP fuel before it reaches the retailer. This is a reasonable concern for the state since it is bordered by two states (Delaware and Pennsylvania) which will have different RVP fuel requirements. Opportunities to blend the differing RVP gasoline en route to the retailer to yield a noncomplying fuel would exist. In fact, EPA concluded in its national rulemaking that testing at all points in the distribution system would provide the “best safeguard” against distribution of noncompliant gasoline and would result in the “greatest likelihood” of achieving environmental results. Further, in comments submitted on EPA’s proposed approvals of the Massachusetts, Connecticut and Rhode Island 9 RVP regulations (none of which enforce at the retail level), several petroleum industry commenters argued that an enforcement program that reaches the retail level is a minimum standard for the effective enforcement of RVP limits. EPA does not believe that the sLate’s regulation will have a significant economic effect on retailers since they will not be required to test each shipment of gasoline received. Under the state’s regulation, retailers are required only to keep complete and accurate records of all gasoline shipments, which is not an undue ‘burden. New Jersey has stated that it has adequate resources to conduct an enforcement program in support of the rule. The New Jersey Department of Environmental Protection (NJDEP) has developed an enforcement protocol which includes a prescribed schedule of announced and unannounced inspections. EPA must note that in the comparable arena of enforcement through Delayed Compliance Orders (DCOs), courts have held that EPA may nof second guess the state’s choice of enforcement mechanisms ãø long as the chosen system is a reasonable one, Bethlehem Steel Corp. V. U.S. E.P.A., 638 F.2d 994, 1005—1006 (7th Cir. 1980); appealed, Bethlehem Steel v. Corsuch, 726 F.2d 358 (7th Cir. 1984), reh. den., en banc, vacated on reh., 732 F.Zd 97 (7th Cir. 1984). withdrawn and appealed, 742 F.2d 1028 (7th Cir. 1984). Furthermore, even if New Jersey’s enforcement scheme was Inadequate to support a finding, ultimately, that the state’s eventually complete ozone SIP update meets all of the requirements in section 110(a)(2). EPA could still approve the rule under section 110(a)(3). That is because, even with an inadequate enforcement program, the rule would still eLrengthen the pre- existing SIP and hence, under the rationale in Michigan v. Thomas, 805 F.2d 176, 180 (0th Cir. 1986), be approvable for that limited purpose. ------- Federal Register / Vol. 54 . No. 115 / Friday, June 10, 1989 I Rules and Regulations 25579 8 Has New/ersey Satisfied the Acts Public Notice and Hearing flequireiiiciits 2 Conunc ts Several comments received questioned whether the New Jersey SIP revision was adopted alter “reasonable notice and public hearing.” While acknowledging that public hearings were held, they alleged that the decision to limit RVP to 9 psi was actually made by NESCAUM some time before public hearings on the New Jersey RVP regulation, and that therefore any hearing nominally provided was substantively inadequate. On the other hand, NESCAUM commented that o7one pollution problems, especially in the Northeast, are clearly regional problems and must therefore be dealt with through Consistent regulations. Other comments questioned whether notice and hearing was provided on the SIP revision or just a State regulation. They believe it was unclear from the public notices and materials available before the hearing that the RVP rule was actually intended to be submitted as a revision to the SIP. Response: As to the first claim, EPA’s TSD provides the date that the public notice was published and contains an itemization of the public hearing dates. Although there is no summary statement that the public participation requirements for hearing and notice were met, the record does speak to that effect. EPA finds concerns that the public hearings were largely meaningless and thus riot “reasonable” to be misplaced. It is inferred that New Jersey and the other NESCAUM states had predetermined the outcome of the hearings before and without regard to the hearings held in those states. EPA is not at all convinced that the process was predetermined. If the’commenters were aggrieved on this matter we would have expected them to challenge the state’s proceedings under state law, as API has done in New York. However, no party challenged New Jersey’s proceedings. EPA acknowledges that New Jersey did initiate rulemaking on RVP control pursuant to an agreement on RVP control with the other Northeast states. However, having initiated the rulemaking on that basis, the state then proceeded to promulgate the regulations through its full administrative process. giving adequate notice and opportunity for public hearing on the proposed regulations. As a policy matter EPA agrees that the ozone problem in the Northeast is a problem of regional magnitude and’has held several meetings with top EPA and state environmental officials in EPA Regions I. II, and III to determine what concerted elforts the states could take on their own to deal with issues of regional. but not necessarily national, scope. Therefore EPA believes that it is appropriate for the northeastern states to regulate ozone precursors in a consistent fashion. However, each state must provide for adequate public participation in the promulgation of individual regulations. including assessing and responding to all submitted comments, as New Jersey has done in connection with its RVP regulations. As discussed more fully below. EPA reviewed the state’s public participation procedures and determined that the state provided adequate opportunity for public input in connection with development of the RVP rules. A commenter argued specifically that the’state’s hearing procedures were not adequate to comply with section 110 of the Act or EPA’s hearing regulations at 40 CFR section 51.102. The operative’ language in both the statute and the regulationis “reasonable notice and public hearing.” The commenter asserted that New Jersey predetermined its final decision on RVP regulation and thus the hearing provided was not reasonable. However. EPA interprets the language of both the statute and the implementing regulations as requiring the state to provide, first, reasonable notice of a public hearing, and second, a public hearing. EPA does not believe that the law requires the Agency to review the hearing record and determine whether the hearing provided was itself “reasonable.” EPA’s interpretation of the hearing requirement is clearly reflected in the regulations at 40 CFR 51.102. The regulations go into substantial detail on the manner in which states must provide’ notice of a hearing in order for that notice to be considered reasonable. See 40 CFR 51.102(d); see also 40 CFR 51.102(g)(2). However, the regulations make absolutely no mention of specific requirements for conduct of public hearings. The state need only certify that it in fact held a public hearing. which New Jersey clearly did. and need not provide any detailed information on the conduct of the hearing. This is appropriate because the reasonableness of public notice can be assessed objectively by reviewing the amount’ and variety of notice methods used. Assessing the reasonableness of a hearing on the other hand would be a highly subjective determination done retrospectively that would unnecessarily infringe ci the state’s discretion in conduct its hearings. Of course, if EPA rece ‘.‘cd concrete evidence that the hearing c d not provide adequate opportu’’ y for public participation, it could fir.d that the hearing did not meet the inter.: of EPA’s regulation. EPA has, however, received no such evidence. The commenters further claimed that a state must specifically identify a proposed regulation as a future SIP revision prior to scheduling a public Nhearing on the regulation. However, neither t ’e statute nor EPA’s regulations contain any such explicit requirement. The purpose of a public hearing is to receive public input on the substance of proposed regulations, not on whether the state may or may not submit the reguldtions as a SIP revision. For years EPA has approved SIP revisions with no analysis of whether the state had publicly announced its intent to eventually submit a proposed regulation as a SIP revision at the state public hearing stage. Generally it should be totally irrelevant to public commenters whether a regulation with which they will be required to comply as a matter of state law might also become an aspect of federal law. At the time New Jersey held its public hearings on the RVP rules, prior to federal preemption, commenters should similarly have had no concern as to whether the proposed State rule would eventually become federal law as well. Only where a state regulation would otherwise be preempted by existing federal law and therefore unenforceable would the public have a need to know that the state intended to seek federal approval of the regulation for purposes of preemption waiver in preparing comments at the stite hearing level. This was not the case at the time of the state hearing on the New Jersey RVP rule. Moreover, given EPA’s then outstanding proposal to regulate RVP and thus preempt state RVP regulation. it should have been apparent to commenters at the time of the public hearing that New Jersey would submit the rule as a SIP revision to insure enforceability in the event of EPA final RVP regulation and preemption. 9. Should Waivers or Exemptions From the State Regulations be Granted to Suppliers who Cannot Provide 9 fl VP Gasoline? Comments: Commentera expressed concern with potential inequities resulting from supplier-specific requests for waivers. They stated that the use of supplier-specific waiver provisions could diminish the calculated benefits of the rule by allowing higher RVP gasoline ------- 25580 Federal Register / Vol. 54, No. 115 / Friday , June 16, 1989 I Rules and_Regulations o the system, and financially auvantage those companies which able to comply. They also expressed .u1cern th it the use of waivers and e\emptions introduces uncertainties abaut whether the volatility regulations viil be applwd fairly and equitably to ,iII gasoline suppliers. The commenters concluded that if waivers or exemptions are to be used, they must apply to all suppliers and sigrificant penalties should be attached. In addition, one commenter noted that EPA has to consider how it will respond to supplier-specific waiver requests; arid EPA ‘is urged to adopt a policy on waivers which is consistent with its own RVP regulatory program.” Re ponsc. EPA is aware that New jersey intends to grant waivers to individual suppliers if necessary to avoid serious supply dislocations during the initial stages of its RVP program. Although EPA did not focus on this aspect of the program in its NPR, commenters were also aware of the State’s intentions and the issue was fully aired in the public comments. EPA is approving the New Jersey RVP program as a whole, which includes the ability of the state to issue waivers as ropriate. EPA is in essence pre- roving any waivers that New Jersey ht grant as part of the overall RVP program being approved into the New Jersey SiP today. New Jersey will not be required to submit each waiver to EPA as a SIP revision before’it may take effect. EPA is currently able to pre-approve any waivers that New Jersey may grant because the RVP program is a discretionary program that the state has submitted to generate additional emission reductions and move the state closer to attainment of the ozone NAAQS. EPA is not pre-approving waiters from a federally required program or a program to which EPA has already assigned specific emission reduction credits as part of an overall attaicunent demonstration. EPA could not pre-approve waivers in such situations because they would constitute SIP relaxations. Here, whatever emission reductions New jersey obtains from the RVP program, even after any waivers have been granted, will tighten the existing SIP and improve air quality. EPA notes that its pre-approval of any waivers New jersey may grant under the RVP program differs dramatically from approval of a generic permitting program such as a new source review or le program. In those cases, EPA rizes states to approve relaxations ierwise applicable SIP . . ..rements provided that the slate follows SIP approved procedures calculated to insure that all such waivers are accounted for in the SIP attainment demonstration and are issued using replicable evaluation techniques. 1-Icre, since EPA is not currently relying on the New jersey RVP program for any defined emission reduction credit toward an approved attainment demonstration, EPA need not now analyze the criteria by which New Jersey will issue any waivers. New Jersey is free to issue waivers on the basis of its own state criteria, consistent with any requirements of its state administrative procedures act. When New Jersey does submit its completed post-1987 aLtainment’ demonstration. EPA will assign specific emission reduction credits to the RVP program, taking account of any supplier- specific waivers the state may have issued by that time. Once EPA has approved the New jersey post.1987 SIP, it will take whatever rulemaking action is necessary to ensure that any further waivers under the RVP program, which at that point would be considered SIP relaxations, would be submitted to EPA for approval as individual SIP revisions. Finally, EPA notes that any suppliers who receive waivers from New jersey must still comply with the federal RVP limit of 10.5 psi. 10. flow soon after the dale of final approval of the New Jersey revisions should the R VP regulations be made effecLive? Comments: A great deal of the comments received commented on the timing of EPA’s final action. Those favoring EPA approval of the SIP revision generally favored EPA acting quickly to make the regulations effective by their May I starting date or as close to that as possible. These commenters note that the Colonial Pipeline, which supplies 20 percent of the Northeast’s gasolIne, has been shipping 9 RVP fuel to the Northeast since March 1, 1989. They also pointed out that those suppliers who have made a good faith effort to comply with the May 1st date would be at a competitive disadvantage relative to those with cheaper, higher volatility gasoline if the date Is extended. ‘-. Those opposing EPA approval of the SIP revision generally asked that if we did approve it we must provide the petroleum industry with realistic and sufficient lead-time to enable 9 psi gasoline to be distributed throughout the distribution system. These commenters cited EPA’s allowing 70 and 100 days for the recently promulgated national regulations to become effective at the terminal and retail level respectively as precedent for such a decision. A third path, suggested by one commenter, would be for EPA to make its final approval conditional on the state’s deferral of the compliance date for its regulation. Response: The timing issue is one of the most difficult ones posed by this action. Since EPA has had control of the timing of the final federal RVP action. the decision on the pieviously granted Massachusetts, Rhode Island, and Connecticut RVP SIP revisions, and the decision on the New jersey RVP revision, it is important that we insure that both the federal and state programs start with a maximum likelihood of success and a minimum possibility of supply disruption. EPA must consider several issues in deciding when to make the rule effective. The first issue is when the industry was put on notice that it would have to supply 9 psi gasoline to New Jersey. Since the New Jersey rule was passed in 1988, the industry was on notice since then of the State’s intention to control RVP to 9 psi. However, the New Jersey rule was preempted on March 22. 1989 by the promulgation of the federal volatility requirements. Another issue to consider is the lead- time that would bç necessary to enable 9 psi gasoline to get through the distribution system. The record indicates that the industry thought that it would take from 60 to 70 days to achieve compliance at the terminals in New Jersey. The record also indicates that the Colonial Pipeline, which supplies at least 20 percent of the gasoline in the Northeast, has been shipping 9 psi gasoline since March 1, 1989. The final issue involves the air quality consequences of delaying the effective date. EPA should not delay action on a SIP revision in such a manner as would thwart the State’s intent in requesting the SIP revision. New Jersey’s submittal ‘of the RVP SIP revision in January was clearly aimed at getting its regulatory program in place for the 1989 ozone season. Thus, it is important to have the effective date as early as possible in order to maximize the air quality benefits of the program in 1989. In deciding to make this action effective on June 30, 1989, EPA has attempted o balance these competing interests. EPA believes that this effective date will both minimize possible difficulties the industry might encounter with a shorter lead-time and provide citizens In the Northeast as much relief as Is practical during most of the 1989 ozone season. Although some suppliers may have made a good faith effort to comply with the May I effective ------- Federal Register I Vol. 54, No. 115 / Friday, June 16, 1989 / Rules and Regulations 25581 date specified in the New jersey proposal, they were under no obligation to do so once EPi\ preempted the New jersey requirement by promulgating federat RVP controls on March 22, 1909. The Agency cannot, therefore, select an earlier effective date for all suppliers based on the voluntary action of a few, especially considering that the time between the March 22 federal rulemaking and todays publication is critical to the refiner/supplier planning and implementation process regarding fuel delivery for the coming summer. However, because refiners have already begun to prepare for the sale of 9 RVP fuel as a result of EPA’s approval of the Massachusetts, Rhode Island, and Connecticut RVP SIPs and in light of the fact that these states share many links in the gasoline distribution network with New Jersey, the Agency does not believe that an additional 60 to 70 days lead- time is warranted. This starting date in New Jersey, therefore, mirrors the starting date in Massachussets, Rhode Island, and Connecticut. 11. Should EPA reopen the comment period or withdraw and repropose this SiP revision in light of EPA ’s final action on the notional R VP regulation and other alleged defects in the March proposal? Comments: EPA received divergent comments on the appropriate process for and timing of a final action on New jersey’s SIP revision. Several commenters argued that EPA should take final action as soon 88 possible. On the other hand, other commentcrs felt that because of numerous allegedly unresolved issues raised in their substantive comments. EPA should at a minimum repropose action on the revision to deal with these issues before proceeding to final action. — Response: EPA concludes that given its interpretation of the relevant law and the seasonal nature of the New jersey revisions, the Agency should proceed expeditiously to final action based on the record currently before it. EPA is unpersuaded by the claim that circumstances have so changed since the proposed approval of the New Jersey revisions that we should reopen the comment period or withdraw and repropose this action. EPA’s NPR for the New jersey RVP program explicitly discussed EPA’s final action on the national RVP program relevant to final action on the State program. EPA clearly presented the path which EPA proposed to follow and the conclusions which we proposed to reach In light of the final promulgation of federal RVP regulations. Furthermdre, In the final Federal Register notice on the national RVP’ program, EPA explicitly discussed considtirdtiun of diffc ’rc :’ state RVP contiol programs. In this case EPA concLdes that it is not necessary to issue a reproposal prior to taking final action. EPA believes that it has adequately responded to all of the substantive comments ra:sed by commenters in the substantive discussions presented above. Obviously, additional analysis on such technical issues could always be conducted. However, administrative agencies generally have the discretion to determine when issues have been aired sufficiently and to close the record arid proceed to final action, consistent of course with the nee&to act in a reasoned, non-arbitrary fashion (Vermont Yankee Nuclear Power v. N.R.D.C.. 435 U.s. 519, 554-555 (1978)). Further, EPA should not delay action on a SIP revision in such a manner that would thwart the State’s intent in requesting the SIP revision. In this case, New jersey has submitted a seasonal requirement that since currently preempted must be approved in a timely fashion in order to effectuate the state’s intent that the regulations provide emission reduction benefits in the upcoming summer ozone season. Therefore. EPA should make best efforts to act on the information available to it now to the extent that it is adequate or else the agency would thwart the State’s intent with regard to the 1969 ozone season. Since EPA has concluded that the existing record is sufficient. EPA can proceed to final action at this time based on that record. Enforcement EPA’s proposed approval of the New jersey SIP revision indicated that there was a problem with the test method section. The regulation required that testing be performed in accordance with the American Society for Testing and Materials (ASTM) method 0—323. EPA stated that the State must revise its test method section to include the EPA recognized methods contained in EPA’s national volatility rule which are based on an ASTM proposed modification to 0—323 known as Annex 2. On April 27, 1989. EPA received comments from the NJDEP which indicated that the State cannot amend its RVP rule through normal legislative procedures in time for this year’s volatility control period. The New Jersey Department of Environmental Protection stated that it will adhere to D—323 (which is still a valid ASTM testing procedure and is being used by other NESCAUM slates) for the 1989 control period and committed to amend its test methodology to cite the EPA recognized methods in 1990 and subsequent years. EPA finds that its concerns ruIal j to the test methods were addresse(l sufficiently by the State and that the lest methods sci.tion is approvable. Final Action EPA is approving this revision to the New jersey Ozone State Implemeritd Lion Plan to control gasoline volatility. including any waivers New Jersey may grant under the program. EPA has also made the finding that the New Jersey SIP revision meets the requirements of section 211(c)(4)(C) of the Act for an exception to federal preemption. The Office of Management and Budget has exempted this rule from the requirements of section 3 of Executive Order 12291. Under section 3o7(b)(1) of the Act. petitions for judicial review of this action must be filed in the United Slates Court of Appeals for the appropriate circuit within 60 days of publication. This action may not be challenged later in proceedings to enforce its requirements [ See section 307(b)(2)l. List of Subjects in 40 CFR Part 52 Air pollution control, Hydrocarbons. Ozone. Incorporation by reference. Note: Incorporation by reference of the State Implementation Plan ror the Sidle of New York was approved by the Director of the Federal Register on july 1. 1982. EPA is today approving the New jersey SIP revision pertaining to its State gasoline volatility program. Dtite. June 8, 1989. - William K. Reilly. Adminisirolor. For the reasons set forth in the preamble, Part 52 of Chapter I of Title 40 of the Code of Federal Regulations is amended as follows: P RT52—4AMENDED] Subpart FF—New Jersey 1. The authority citation for Part 52 continues to read as follows: Authority: 42 U.S.C. 7401—7842. 2. SectIon 52.1570 Is amended by adding new paragraph (c)(45) to read us follows: § 52.1570 IdentifIcation of Plan. . . . . . (c) (45) Revisions to the New Jersey State Implementation Plan (SIP) for ozone submitted on january 27. 1989 by the New jersey State Department of Environmental Protection (NJDEP) for its ------- 25502 Federal Resister / Vol. 54, No. 115 / Friday. June 16. 1909/ Rules and Regulations tate gdsoliue volatility program. ocluding any waivers that may be gr;inted uiidr.r the program liv the sIat( . In 1 t19. the control per:od will bi ’ tin on Juiie 30. (i) Incorpuralion by rcfcrciicc Subchaptci 25 of Chaptc(27. Title 7 of the New jeiscy Administrative Code entitled “Control and Pioliibition of Air 3 Section 52.1005 is amended by Pollution by Vehiculur I ’ucls.” adopted adding a new entry Subchapter 25 under on January 27, 1939 and c ii :cicc on Title 7, Chapter 27 in numerical order as I’eliruary 21, igt g. follows: (ii) fldd,t:iinclnioler:ol April 27, 1939 letter from Chi istopher Dcggctt. NJDEP, § 52.1605 EPA-approved New Jersey S;ite regulations. to William Musryaski. EPA Region It. Siate regutalion Slate elfocuvo EPA spprovcd date Comments date - “S. 1 lie 7, Chapter 27 2/21/09 t FR date and c::it3n Of thiS document J Eliactiva dale 6l30I 9. Subcl’opior 25. Controi and Prohibition of Air Potiutio Veli,cuia Fuels” n by ll’fl Doc 89—14227 riled 8—IS-WI. 045 uclil DiLLitiG CODE 6560-50-U 40 CFR Part 52 lSC-012b; FRL—3632-Sj Approval and Promulgation of ipiementotion Plans; South Carolina; platile Organic Compound (VOC) nlsslons AGENCY: Environmental Protection Agency. ACTION: Withdrawal of final rule. SUMMARY: On April 17, 1009 (54 FR 15181). EPA disapproved without prior proposal the May 24. 1985. version of revisions made by South Carolina in Its Air Pollution Control Regulations and Standards. These revisions cnntaincd deficiencies within the Volatile Organic Compound (VOC) regulations. EPA subsequently received adverse comments on the action. Accordingly. the Agency is withdrawing its direct- final disapproval. Elsewhere in today’s Federal Register, EPA is proposing to disapprove the May 24. 1085, version of revisions made by South Carolina and providing an opportunity to comment on the proposal. DATE: This action is effective on june 16. 1989. ADDRESSES: Copies of the materials submitted by South Carolina may be examined during normal business hours at the following locations: Air Programs Branch. Environmental Protection Agency. Region IV, 345 urtland Street NE.. Atlanta, Georgia 365. It Carolina Dcpartinent nfl Icalth ..ad Environmental Control. 2000 Dull Street. Columbia. Soulh C.iro!ina. 29201. FOR FUflThER INFORMATION CONTACT: Diane Altsman. EPA Rr’gton IV. Air Programs Branch, at the Atlanta address above or cull 404/347—2884 or FTS 257— 2064. SUPPLCMENTARY INFORMATION: On June 5, 1985, the South Carolina Dcpnrtnaent of Health anil Environmental Control submitted to EPA for approval revisions to the volatile organic compcund (VOC) provisions of the South Carolina Air Pollution Control Regulations and Stonclards. These revisions were adopted by the South Carolina Board of Health and Environmental Control on December 20, 1004, and were fnrwarded to the State Legislature for approval. The revisions became State-eFfective on May 24, 1905. Based on the information submitted, EPA found several of the revisions to be deficient and therefore disapproved them without prior proposal (54 FR 15181 April 17, 1909). In the final rulemaking, EPA advised the public thai the effective date of the action was deferred for 60 days (until June 10, 1909] to provide an opportunity to submit comments on it. EPA announced that if notice was received within 30 days of the publication of the final rule that someone wonted to submit adverse or critical comments, the final action would be withdr.iwn and a new rulemaking would be begun by proposing a 30-day comment period. EPA had eorlier published a general ‘\oticc explaining this special procedure (46 FR 4 1477, September 4, 1901). J PA has received adverse comments on this action. Accordingly, the Agency is today withdrawing its disapproval. Elsewhere in today’s Federal Register, EPA is proposing disapproval of this plan and soliciting comments on tile proposal. EPA is withdrawing this action without pro’ itling prior notice and opportunity for comment. Thc Agency finds that It has good cause within the meaning of 5 U.S.C. 553(b) to proceed without notice end comment. Notice and comment would be impracticable in this case because EPA needs to withdraw its approval as quickly as possible in order to consider the comments which the public has submitted or may wish to submit. Moreover, further notice is not necessary because EPA has already informed the public that it would follow thic procedure if it received a request for an opportunity to comment. For the same reasons, EPA finds that It has good cause under S U.S.C. 553(d) to mnke this withdrawal immediately effective. The Office of Management and Budget has exempted this rule from the requirements of section 3 of Executive Order 122111. List of Subjects In 40 CFR Port 52 Air pollution, Hydrocarbons, Intergovernmental relations. Ozone. Authority: 42 U.S.C. 7401—7042. Date: June 8.1989. C tour C. Tidwoll, Regional Adniinistrotor. Therefore the addition of new § 5Z.2128 oppearing at 54 FR 15182. April 17, 1989, which was to become effective on june 16. 1909, Is withdrawn. (FR Doc. 80—14304 Piled 0—15-89:8.45 limI SI WUG CODE 5560-SO-U 40 CFR Part 52 (FRL-3602—9) Approval and PromulgatIon of ImplementatIon Plan, State of Texas, PartIculate Matter (PM 10 ) Group .11 Areas AGENCY: Environmental Protect ion Agency (EPA). ------- 26030 F ’deraI Register / Vol. 54, No. 118 / Wednesday,’ June 21, 1989 I Rules and Regulation’s (P) For Operation ARGUS the period August 27, 1 58 through September 10. 1958. (Q) For Operation !IAJ?DTACK l/the prr od September 19, 1958 through October31, 1q58 (R) For Operation DOMINICIIhc criod April 25. 1962 through December 31. 1902. (S) For Operation OOit’iINJCJIJ PLOWShARE the period July 6, 1962 through August 15, 1962. (vi) The term ‘ occupotion of Hiroshima or Nagasaki. Japan. by United States forces” means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki. Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population. s ;abilization of the government. demilitarization of the Japanese military. rehabilitation of the infrastructure or deactivation end conversion of war plants or materials. (vii) Former prisoners of war who had an opportunity for exposure to ionizing radiation comparable to that of veterans who participate4 in the occupation of I liroshima or Nagasaki, Japan, by United States forces shall include those who, at any time during the period August 6.1945, through July 1. 1946: (A) Were interned within 75 miles of the city limits of Hiroshima or within 150 miles of the city limits of Nagasaki. or (13) Can affirmatively show (hey worked within the areas set forth in paragraph (d)(4)(vii)(A) of this Section although not interned within those areas, or (C) Served immediately following internment in a capacity which satisfies the definition in paragraph (d)(4)(vi) of this section. or (0) Were repatriated through the port of Nagasaki. (Authority: 35 U S.C. 312) 3. In § 3.812. paragraph (c)(2) is revised, paragraph (c)(3) is removed and old paragraph (c)(4) Is redesignated as new paragraph (c)(3) to read as follows: § 3.812 SpecIal allowance payable under section 156 of Pub. L 97—377. • a a • a (2) Claimants eligible for death benefits under 38 U.S.C. 418. The deaths in such cases are not service connected. (3) Claimants whose claims are based on an individual’s service in: (i) The Commonwellth Army of the hilippines while such forces were in ie service of the Armed Forces ursuant to the military order of the • resident dated July 28, 1941, including recognized guerrilla forces (ace 38 U S C. 107). (ii) The Philippine Scouts under section 14, Pub. L. 190. 79th Congress (see 38 U.s c. 107). (iii) The commissioned corps of the Public Health Service (specifically excluded by section 156 of Pub L. 97— 377), or (iv) The National Oceanic and Atmospheric Administration (specifically excluded by section 156 of Pub. L. 97—377). (FR Doc. 89—14022 Filed 6—20-89: 845 an J BILUNG CODE 0320-01-N ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 (Region II Docket No. 97; FRL-3602—41 Approval and Promulgation of Implementation Plans; Revision to the State of New York implementation Plan for Ozone AGENCY: Environmental Protection Agency. ACTION: Final rule. SUMMARY: EPA Is approving the State Implementation Plan (SIP) revision submitted by the State of New York. These revisions will reduce emissions of volatile organic compounds from gasoline by limiting the Reid Vapor Pressure (RVP) of gasoline sold between June 30 and September15 in 1989 arid between May I and September15 of each year thereafter to 9 pounds per square inch. EPA is also finding that the New York RVP regulations are “necessary to achieve” the national ambient air quality standard (NAAQS) for ozone and are therefore excepted from preemption under section 211 of the Clean Air Act. The intended effect of this action is to make necessary progress towards attainment of the ozone standard as expeditiously as practicable as required under the Clean Air Act. EFFECTIVE DATE This action will be ‘\effective June 30. 1989. ADDRESSES: Copies of the State submittal are available at the following addresses for inspection during normal business hours: Environmental Protection Agency. Region I I Office, Air Programs Branch, 28 Federal Plaza, Room 1005. New York. New York 10278. Environmental Protection Agency. Public Information Reference UnIt, 401 M Street SW, Washington, DC 20460. New York State Department of Environmental Conservation, Division of Air Resources, 50 Wolf Road, Albany, New York 12233. FOR FURTHER INFORMATION CONTACT: Mr. William S. Baker. Chief, Air Programs Branch. Environmental Protection Agency. 26 Federal Plaza, Room 1005. New York, New York 10276, (212) 264—2517. SUPPLEMENTAflY INFORMATION: Introduction This notice describes EPA’s decision to approve revisions to the New York SIP which limit the volatility of gasoline from June 30 to September 15 in 1989 and from May 1 to September 15 every year thereafter. The remainder of this preamble is divided into four sections. The first provides the background for this action, with respect to both chronology and the broad issues involved. The second section presents today’s action and EPA’s rationale. The third section summarizes the comments received on the proposed action and EPA’s responses to them. The final section discusses the enforceability of New York’s regulation with regard to the test methods as discussed in EPA’s proposed rulemaking notice. Background On November 12. 1987, the Commissioners of the Northeast States for Coordinated Air Use Management (NESCAUM) signed a Memorandum of Understanding expressing their intention to reduce the Reid Vapor Pressure (RVP) of gasoline to 10 pounds per square inch (psi) starting in the summer of 1988 and to 9 psi in the summer of 1989 and continuing every ozone season thereafter. Since there were delays in adopting necessary regulations, the 1988 limit of 10 psi was eliminated and New York passed a regulation limiting the RVP of gasoline to 9 psi from May I to September ‘15 starting in 1989 and continuing each year thereafter. On January 31, 1989, New York submitted a SIP revision to EPA for approval to implement this provision. On March 22, 1989, EPA published a Federal Register notice (54 FR 11868) taking final action on national regulation of RVP. to take effect this summer. The maximum allowed summertime RVP in New York under the federal regulation is 10.5 psi. Under sectldn 211 (c)(4J(A) of the Clean Air Act (the Act): EPA’s final action preempted inconsistent state control of RVP, except In California. In its final action, EPA noted that states could be exempted from preemption ------- Federal Register I Vol. 54, No. 119 I Wednesday, June 21, 1q89 I Rules and Regulations 2G0 only if EPA finds it is ‘necessary” to achieve the NAAQS as provided in section 211(c)(4)(C) of the Act. Section 211(c)(4)(C) of the Act states: “A state may prescribe and enforce, for purposes of motor vehicle emission control, a control or prohibition respecting the use of a fuel or fuel additive in a motor vehicle or motor vehicle engine if an applicable implementation plan for such State under section 110 so provides. The Administrator may approve such provision in an implementation plan, or promulgate an implementation plan containing such a provision, only if he finds that the State control or prohibition is necessary to achieve the national primary or secondary ambient air quality standard which the plan implements.” In it March 22, 1989 notice, EPA made specific note of the NESCAUM states’ initiatives and the conditions for EPA approval of state RVP regulations. On March 28. 1989, EPA published a Federal Register notice (54 FR 12656) proposing approval of the New York SIP revision. EPA also proposed to find that these revisions were “necessary” to achieve the NAAQS for ozone within the meaning of section 211(c)(4)(C) of the Act and, thus, meet the requirements for an exception to Federal preemption. Description of Today’s Action EPA today approves revisions to the New York SEP which limit gasoline volatility to9 psi between June 30 and September15 In 1989 and between May 1 and September15 in each year thereafter, The New York program includes authority for the State to issue waivers to invididual suppliers if necessary to avoid supply dislocations. EPA Is approving the program as a whole, including any waivers the State might issue under this authority. This aspect of EPA’s approval is discussed In full under section 9 of the next portion of this notice describing EPA’s response to comments. EPA is also explicitly finding that the New York revisions are “necessary to achieve” the NAAQS within the meaning of section 211 (c)(4)(C) of the Act. This means that New York’s RVP regulations are not preempted by the Federal RVP regulations promulgated on March 22, 1989. EPA’s rationale for this action and its effective date are presented below. In this context many issues raised by commenters on the proposal will be addressed. The remaining comments will be discussed in the next portion of this notice. , In approving the New York RVP SIP revisions, EPA must consider requirements imposed by two different sections of the Clean Air Act. As with all SIP revisions, section 110 provides the reqwrements for approval into the SIP. In tLns case, since EPA has promulgdted Federal RVP regulations, section all(c)(4)(A) preempts inconsistent State control. However. section 211(c)(4)(C) provides that the Administrator may except a State RVP control program from preemption if he finds it is “necessary” to achieve the NAAQS. Thus, the New York revisions must satisfy both section 110 and “ .. section 211 requirements to gain approval. EPA has concluded that the New York RVP regulations are “necessary” to achieve the ozone NAAQS. In re,aching this conclusion EPA has followed the test first articulated in approving the Maricopa County, Arizona SIP (53 FR 17413 (May 19, 1988) and 53 FR 30228 (August 10, 1988)) and later presented in the proposed approval of the New York revisions. EPA stated that if, after accounting for the possible reductions from all other reasonable control measures, New York could demonstrate that RVP controls are still required to achieve the standard, then RVP controls are necessary within the meaning of section 211(c)(4)(C). EPA will not interpret that provision to require a State to impose more drastic measures such as driving prohibitions or source shutdowns before it can adopt its own fuel control program. As discused in the notice of proposed rulemaking (NPR), the record indicates that the New York City Metropolitan Area (NYCMA) needs VOC emission reductions on the order of at least 33.8 percent from 1987 Inventory levels to achieve the standard, The State reviewed approxImately 25 measures suggested by EPA as reasonable in addition to RVP control to 9 psi and found they could together potentially achieve an 11.7 percent reduction from. 1987 levels in the NYCMA. Enhancements to the State’s vehicle inspection and maintenance (I/M) program could produce an additional 2.4 percent reduction. As indicated at proposal, while EPA’s regulation of gasoline to ‘10.5 psi reduces the emission reduction attributable to the State regulation, it does not affect the bottom line, a shortfall will still exist. EPA’s technical review of the data presented in the State submission and by the commenters affirms the conclusion that a shortfall will exist even with all reasonable State and Federal measures. EPA continues to believe that the fact that the State RVP regulation might not by itself fill the shortfall and hence by itself achieve the standard does not mean the rule is not “necessary to achieve” the NAAQS it is simple logic that “necessary” is not the same as “sufficient”. EPA believes th.it the “necessary to achieve” standard must be interpreted to apply to measures which arc needed to reduce ambient levels when no other measures that EPA or the Slate has found reasonable are available to achieve this reduction. Beyond such identified “reasonable” measures, EPA need look at other measures before RVP control, only if it has clear evidence that RVP control would have greater adverse impacts than those alternatives. EPA has no such evidence here. Therefore, EPA can defer to New York’s apparent view that RVP control is the next less costly (or is itself a reasonable) measure. Thus. EPA concludes that New York’s RVP regulations are “necessary” to achieve the NAAQS. Summary of Public Comments and EPA’s Responses The major issues discussed in the comments are: (1) What constitutes a finding of “necessary to achieve” the standard under section 211(c)(4)(C): (2) whether there has been an adequate technical demonstration that controlling RVP to 9 psi is “necessary” (i.e., whether the threshold for exemption from preemption has been crossed); (3) the scope of EPA’s discretion assuming a finding that State RVP controls are necessnry to achieve the standard; (4) what effect the 9 RVP limit in New York will have on the cost and supply of gasoline in the State and the Northeast; (5) driveability and safety concerns; (6) whether there is an ozone problem in New York: (7) whether the State has an adequate enforcement program or sufficient resources to implement the State regulations; (8) whether the State provided “reasonable opportunity” for public comment; (9) what exemptions or waivers from the State regulations should be allowed; (10) the appropriate timing for making the Stale regulation effective; and (11) whether EPA should withdraw or repropose this action or reopen the public comment period in light of EPA’s recent promulgation of Federal RVP regulations and other alleged deficiencies in EPA’s proposed action. Each issue is explored in detail below. 1. What constitutes a finding of “necessary to achieve” the standard under sectioii 211(c)(4)(C) of the Act? a. Making the “Necessary” Finding Without a Demonstration of Attainme:,g Comments. One group of comments questioned EPA’s ability to make a ------- 26032 Federal Register / Vol. 54, No. 118 I Wednesday. June 21, 1989 I Rules and Regulations finding that New York’s RVP regulation is ncces ary to attain the ozone st.ind&ird without going through the r.nmplete planning process invot .ed in approvint a btfltc ’R response to EPA’s i.ndir. ih.i t the current SIP is substantially inadequate to achieve the standard (the “SIP call”). Several comments stated that EPA cannot npprove New York’s RVP regulation as a SIP revision without finding that the SIP us a whole achieves attainment of the NAAQS for ozone. Related comments riucstioned EPAs ability to determine whe(hcr New York’s RVP controls are necessary without a new updated iiiventory of VOC sources which EPA will require [ ruin the states with ozone nonauainment areas as part of their response to the SIP calls. Response Through its SIP calls, EPA hae imposed on states like New York an obligation to revise their ozone SIPs and demonstrate attainment of the standard. ‘l’he thrust of these comments is that EPA cannot make a finding of necessity without the state first having gone t ’ rough the new planning process and developing a new demonstration of attainment. EPA does not interpret section 211 (c)(4)(C) to require a complete demonstration of attainment in der to approve a measure which will ntribute to attainment. Forcing a state to demonstrate attainment before allowing it to adopt stricter fuel controls would yield perverse results. Areas with the worst ozone rionattainment problems. which have the most difficulty assembling a derfionstration of’attainment. would be disabled for perhaps several years from adopting clearly necessary, stricter than the national, RVP controls. Several commcnters noted that New York so far has not been able to identify any combination of control measures which would bring the State into attainment. It is precisely in areas like New York, with an especially difficult nonattainment iroblem. where the expeditious implementation of new controls. and hence the finding of necessity under section 2tt(c)(4)(CJ. is most appropriate.. Beyond that, it is reasonable for EPA to use the best information it now has available to determine whether New York’s RVP program will be necessary to achieve the standard without having to wait for New York to complete it8 planning response to the SiP call, including its updated inventory. As explained below, the VOC inventory and reduction figures New York ‘-‘itted to EPA was based on nably reliable models EPA has in the pasL Such figures are always ile of refinement, but in the Agency’s judgment the e’ .aenditure of time required to do so is not worth the marginally improved accJ acy See Vermont Yanhee Nuclec: P3; c i - v N J ? DC. 435 U S. 519. 544—535 (1978). EPA hns n ’ot yet set a 3:e certain by which New York must attain the ozone standard. Congress may address the widespread nonattainment problem in the amendments to the Act now being considered. In the meantime EPA has also proposed its own policy for how to deal with SIP planning for nonattainment areas in the post-lOOT period (52 FR 45104, November 24. 1987). The air quality anulysis New York submitted made it clear that RVP control beyond the federal requirements will be necessary to any attainment plan, whether the attainment date that Congress or EPA selects is imminent or long-term. Moreover, there is widespread agreement among EPA and the States in the Northeast that major VOC reductions, probably exceeding the 33.0 percent estimated by EPA in this case, wiU be required to get cloée to attaining the ozone standard. Nothing in the air quality data from the summer of 1988, which have become available in quality-assured form since publication of the proposal, indicates that the reduction requirement prolected by the New York analysis overstates the reduction necessary to achieve the standard. Beyond that, the history of ozone planning over the last decade makes it clear that reduction targets are seldom overestimated. Furthermore, EPA’s approval of this revision now is consistent with section 110(a)(2)(A) of the Act, which requires attainment “as expeditiously as practicable.” interpreting section Z11(c)(4)(C) to require a complete attainment demonstration before EPA can approve (and a state can implement) a fuel control that the state has determined to be practicable and that would advance the attainment date would effectively put section 211(c)(4)(C) in conflict with section 11O(a)(2)(A). It is doubtful that Congress intended EPA to choose an interpretation that would create such a conflict b. Upstate Nonottainment Areas CommenI.s. Several comments were received on the propriety of EPA’s section 211(c)(4)(C). finding for upstate areas of New York which are in nonattalninent, and EPA’s finding that the application of the program statewide is necessary to achieve the ozone standard as- expeditiously as practicable in all of the upstate and downstate nonattamment areas. One commenter stated that EPA,has not issued a SiP call for the upstate areas pending analysis of the 1988 ozone data, therefore New Yoi is not required to take action in the upstate areas. Another commenter suggested that it is impossible for EPA to evaluate the reductions claimed for the upstate areas since there is no inventory for this part of the State. Response. The SIP call issued in May 1988 was based on air quality data’ through 1987 which indicated that the only upstate area in nonattainment was Jefferson County. During 1988, ozone violations indicating actual nonattainment were recorded in Erie, Niagara, Dutchess, Albany, Essex. Schenectady, Rensselaer. Saratoga, and Washington Counties. At the moment, EPA is quality-assuring this data. Once this process is complete, EPA anticipates that the State will be asked to revise its SIP accordingly to provide for mitigation strategies in these areas. It seems clear that the upstate areas are experiencing violations of the ozone standard, and thus must put in place such measures as are necessary to bring the areas into attainment of the standard. As EPA explained in its proposal, New York has indicated that no measures other than the RVP program could be implemented in the upstate areas rapidly enough to provide any emission reductions during the 1989 ozone season, and that available measures which would produce emission reductions of the magnitude of the RVP program could not be in place for several years. Moreover, the emissions reductions that the RVP program would achieve are so large that the program could very well produce attainment of the’ ozone standard during the 1989 ozone season in those areas. By this logic, and assuming, as New York has, that the RVP program Is - practicable, the program appears to be necessary to produce attainment in the upstate areas, “as expeditiously as praclicable,” as required by the Act. None of the-comments submitted on this issue disputes these findings. Beyond that, two of the comments supported EPA’s proposed approval For the upstate areas in part because of the benefits that would result by reducing emissions transport to other downwind nonattainment areas. EPA Is currently working with the Northeast States on a Regional Oxidant Modeling study on the Northeast transport (ROMNE’I’)’ problem. As part of the study, the. Agency hopes to quantify the extent to which transport from each State Sn the Northeast affects the air quality in the . Northeast region. While this study is not yet complete. EPA and the Northeast States agree that..traneporL1a. .apecia1 .; . - ------- Federal Register / VoL 54, No. 118 / Wednesday. June21,_1989 / Rules and Regulations 26O problem in the Northeast, and that New York State is one of the key states involved In fdct, what is kno ri generally about ozone formation su. ’ gests that emissions from upstate New York may contribute to ozone formation in western New England, an area that has experienced ozone standard violations. This suggests that controlling upstate New York emissions may well be necessary for timely attainment in parts of New England. Thus, the commenters’ claims on transport tend to confirm the appropriateness of EPA’s proposed finding that the New York RVP program is necessary for timely attainment of the ozone standard. For these reasons, EPA concludes that the RVP program is necessary to provide for timely attainment. It is therefore appropriate for the Agency to make a 8ection 211(c)(4)(C) finding For the upstate areas. As to the validity of the reductions claimed for the upstate areas, It is true that the State has not yet been required to develop and submit emission inventories as part of the SIP for the upstate areas. However, it should be noted that both New York and EPA maintain statewide emission inventory databases (respectively entitled the Source Management System and the National Emissions Data System) which are adequate to evaluate the reductions claimed for the upstate areas. Finally, EPA noted a proposal that New York had made the RVP program effective on a statewide basis in order to ensure compliance with the program in all of the upstate and downstate nonattainznent areas. None of the comments submitted disputed the necessity of this program coverage. New York did grant. a waiver to the western half of the state based on supply considerations. This waiver is discussed in more detail in sections 9 and 11 below. c. The Standard EPA Has Applied To Determine Whether Fuel Controls Are Necessary Compared With Other Controls Comments. Several commenters maintained that EPA had not adequately analyzed whether there are other control strategies reasonably available which New York should Implement before resorting to RVP controls inconsistent with the federal regulation. EPA will address these comments in section Zc below. Other comments concerned the standard that EPA should use to determine whether RVP controls are necessary compared to othe controls. Response. In the propcsal for this action, EPA used the approach it firs announced when nppro :ng the Muricopa County, Ar’ r 1 SIP (53 FR 17413 (May 19. 1988). 53 FR 30228 (August 10, 1988)) to de’crminc whether RVP controls beyond the federal program are necessary to attain the ozone standard in New York. Under that approach, if after accounting for the possible reductions from all other reasonable control measures, New York could demonstrate that RVP controls art’ still required to achieve the standard, then RVP controls are necessary within the meaning of section 211(c)(4)(C). For the reasons stated in the Arizona action and the New York proposal. EPA will not interpret section 211(c)(4)(C) to require a state to impose more drastic measures such as driving prohibitions or source shutdowns before it can adopt its own fuel control program. New York has demonstrated to EPA that implementing all the control measures which EPA now believes to be reasonably available to New York for VOC control (including measures that the State has already adopted and is now beginning to Implement) would not achieve compliance with the ozone standard. The roster of control measures New York examined corresponds to the list of controls EPA has identified for states to implement In response to the ozone SIP calls, and represents EPA’s best judgment as to the controls which could now be reasonably implemented. See EPA’s proposed post.1987 ozone policy (52 FR 45104, appendix C, November 24, 1987). AFter examining all controls EPA has determined to be reasonable, a state is free to make its own determination as to what control measures should next be employed. One corninenter maintained that EPA’s method for determining what is necessary in too vague because it would allow EPA to approve state fuel controls “simply because alternative measures are more inconvenient, unpopular, or costly.” As discussed in section 2c below, EPA examined reasonable alternative controls which New York could implement end determined they would not achieve enough reduction to achieve the standard. EPA also has determined that remaining controls such as gas rationing, driving reductions, and source shutdowns are so drastic that the State may resort to fuel controls first. This judgment concerning what Is too drastic Is a complicated policy determination requiring the Administrator to weigh precisely those factors which the comznenter would exclude from his consideration— whether the remaining alternatives are costly or unpopular. In Amoco Oil Go Environmental Protection A jenry. 501 F 2d 722, 740—741 the court distjfl uished between the fuctual foundation which EPA must provide in its adnunistrdtjve decisions and policy judgments which are an integral part of the findings Congress requires the Administrator to make.under the Act: Where by contrast, the regulations turn on choices of policy, on an assessment of risks. or on predictions dealing with matters on the frontiers of scientific knowledge, we will demand adequate reasons and explanations. but not iindings’ of The sort familiar from the world of adjudication. Id. at 741. EPA’s and New York’s analysis of reasonably available controls is based on a factual record supported by the best analytical tools the agencies had available to them at the time. EPA’s judgment that State fuel regulation is a less drastic course than gas rationing and other unpopular controls so far not implemented in any SIP is clearly a matter on the frontier of air pollution control planning, and therefore cannot (and need not) be supported by the same technical record as, for example, EPA’s determination that New York needs at least a 33.8 percent reduction from its 1987 inventory to attain the standard. 2. Have New York and EPA made an adequate technical demonstration that controlling RVP to 9 psi Is ‘necessary” to atain the NAAQS? a. Adequacy of Emission Inventory Comments. Three petroleum Industry commenters argued that the emission inventory used in the technical demonstration Is Inadequate. They pointed out that EPA has already requested that New York prepare a new inventory as part of its response to the SIP call. Therefore it Is argued that New York’s reliance on the old inventory is Inappropriate. Response. As described In EPA’s Technical Support Document, the emission inventory used by New York and reviewed by EPA is based on EPA’s “Compilation of Air Pollutant Emission Factors”, known by its document - number “AP—42.” This document and its updates are EPA’S longstanding guidance for determining emissions for inventory purposes and has served as the basis for ozone SIP inventories since the mid-lg7Os. Mobile source emissions were estimated using the then current version of EPA’s mobile source emissions model, MOBILE 3, consistent with standard EPA guidance, While EP/ has called for many states, including New York. to update their inventories ------- 2503k Federal Rc ster I Vol. 54. No. 118 / Wednesday. Jttnc 21, 1989 I Rules and Regulations f r poM-19 ’ SIP pldnnlng purposes. the A ’ricy h is continued to use existing II1/CfltOiil’3 ;n cvnieatirg curri nt control riropo ials EPA exrc.cts the new New York i v’ utety, not due until lute 1989. to show ht hc ’r cnii sioiis than the eurrcat inventory sinu it is expected to uicludc more sources and improved qu.thty assurance. Thus, if the current inventory is lacking. it understates current emissions and errs such that the l ’kcly percentage reduction needed to attain the standard is also understated. As stated in the NPR. EPA believes t’iat if there is an error in quantifying the emission reductions resulting from c ’untrol to 9 psi, those reductions are understated. If the newly released nobile source emission model, MOBILE4, which includes the effects of r.lnninc tosses, were used, one would cxpcct the reduction in tons of VOCa to increase significantly. Furthermore, contrary to the commenters’ belief, the estimated emission reduction is based on reductions achieved during only the four and one-half months each year the regulation is effective. This approach niay understate the reduction since 9 psi fuel may be in the distribution system up to two additional months on each end of ae regulatory season. Also contrary to the commenters ‘claim, EPA’s Technical Support Document (TSD) does contain an estimate of the emission reduction achieved by going from EPA’s 10.5 psi limit to New York’s 9 psi limit. EPA estimated a 1.8 percent reduction from the 1907 inventory. This estimate does account for nonlinearity in emissions with decreasing RVP limits. b. Appropriateness of the Modeling Demonstration Comments. While some commenters agreed that modeling was necessary to evaluate the air quality benefit of the- RVP reduction, they objected to EPA’s reliance on the Regional Oxidant Model (ROM). The commenters also raised concerns about the appropriate hydrocarbon to nitrogen-oxides (NO 1 ) ratios to be used in such modeling. A third modeling issue concerns New York’s and EPA’s inability to associate a quantified increment of improved air quality with the con trot of RVP to 9 psi. Response. The claim that the ROM does not provide the spatial resolution needed for accurate prediction in individual urban areas loses sight of the fact that we are evaluating a statewide t’rogram. The Urban Airshed Model ggested by these commenters is propriate for large urban areas but mId have to be run over at least two ciilfcrent geographic domains to cover the entire State. Caught between the two nviilable model scales, it i8 EPA s technical judgriient that the ROM is an nppropruite tool to use in evaluating future reductions needed for New York. EPA understands the concern thut past strategies hjve focused almost exclusively on controlling VOCs instead of NO 1 . As indicated in EPA’s proposed post-1987 ozone strategy. future control scenarios arc li.kcly to include NO 1 . However, it is highly unlikely that NO. control atone will suffice. The best technical information available to EPA at this time concernin8 the Northeast ozone problem points to the need for substantial VOC reductions and at least modest NO. reductions in the future to attain the ozone standard. - The last modeling issue concerned New York’s and EPA’s inability to associate a quantified increment of improved air quality with the control of RVP to 9 psi. While such a modeling exercise would be ideal it is unlikely that one would have much confldencç in the outcome of such a sensitivity test. The atmosphere’s response to emission reductions of ozone precursors is highly nonlinear such that small increments of reduction may show little or no effect on their own. However, when’ the reductions from the State’s many strategies are aggregated. the total impact becomes quantifiable. Thus, even though New York and EPA cannot pinpoint where the air quality will improve by what amount on what day, we are confident that there will be a net improvement in ozone levels if New York were to decrease VOC emissions by 1.8 percent. c. Consideration of Other Alternatives Comments. Commenters expressed concern that New York and EPA have failed to consider other significant alternative control measures that could lead to attainment, including Stage II vapor recovery systems. source categories that are listed in EPA’s post- 1987 strategy, more stringent motor vehicle.standards. and a host of transportation control measures (TCMs). Response. EPA believes that sufficient alternatives were considered. EPA and the State have considered the emission reduction potential of 23 different point nd area source categories corresponding to those suggested by EPA in its proposed post-1987 ozone policy (52 FR 45104. Appendix C, November 24, 1987). Not surprisingly, some of the source categories are not relevant because there are no major sources in those categories in New York or because the State has already adopted controls for those categories. As noted I a the proposal, most of the relevent categories have potential reductions that are very small and, when combined, total less than 1 5 percent of the 1987 inventory. Other strategies that the State committed to in its previous SIP but have yet fully implemented (including such extraordinary measures as architectural coatings. consumer/commercial solvents and auto refinishing)would produce emission reduction on the order of iO.Z percent, for a- total reduction of 11.7 percent. This would still leave a shortfall of 22.1 percent. Two commenters noted that the proposal did not account for the emissions reductions’that are attributable to Stage LI vapor recovery systems. While reductions due to Stage II were not mentioned in the NPR, the TSD did note that the reductions from RVP control (9,000 TPY) would be second only to Stage II controls (10,800 TPY). Since New York has already adopted and begun to implement Stage II controls, the shortfall discussed in the NPR was calculated above and beyond those reductions attributable to Stage II controls. With respect to TCMs, the commentera failed to take account of the fact that the existing New York SIP (40 CFR 52.1670(c)(61)) contains provisions for the implementation of public transportation improvements.ln the NYCMA. It is true that New York has not Implemented the types of TCM8 suggested by EPA In its proposed post- 1987 ozone strategy. However, based on EPA’s experience with the implementation of these measures in other areas, we expect that New York would only achieve an additional two percent reductiomby- adopting similar strategies. New York would still have an estima ted shortfalL of approximately 20 percent. While EPA recognizes that other TCMs may be needed In New York. the -remainder are difficult to quantify, yield small reductions.lndlvidually, and. as evidenced by the public reaction to the EPA.promulgated Implementation plans containing such measures in the 1970’s (see H.R. Rep. No. 95—294, 95 Cong. 1st Sess. reprinted in 4 Legislative History of the Clean Air Act Amendments of 1977, at 2748—55 (1978)); generally can be expected to have more significant adverse effects on the public as a whole than RVP controls would. To be sure, if there were sufficient evidence for EPA to conclude that the State’s RVP controls would result in significantly more severe impacts than other . , measures that neither EPA nor the State has yet identified as “reasonable” for the State to implement, then It might well be appropriate for the Agency to ------- Federal. Register / Vol. 54, No. 118 / Wednesday, June 21, 1989 / Rules and Regulations 26035 account for the emission reductions that those other measures would achieve before determtning the shortfall against which to tudge the RVP controls. The Agency does not believe, however, that the Stales RVP control would produce significantly more severe effects than such alternatives (e.g.. than a trip reduction ordinance of the type that Arizona found reasonable for application in Phoenix and Tucson). In sum, New York and EPA have Indeed examined a broad range of potential emission reduction strategies and have still identified a significant shortfall in the level of emission reductions likely to be needed to achieve the ozone standard. As discussed above, In light of this significant shortfall EPA may approve the RVP program as necessary to achieve the standard without first requiring New York to Implement other measures that EPA has not yet found reasonable for implementation, such as more stringent state motor vehicle standards. 3. What Is the scope of EPA’s discretion assuming a finding that State RVP controls are necessary to achieve the standard? a. Permissible Bases for EPA ’s Decision To Approve Slate R VP Controls Comments. Several comments asserted that even where EPA has determined that State fuel controls are necessary to achieve the standard, EPA may nevertheless disapprove those controls if EPA determines that the economic or fuel supply impacts of the State’s regulation are unreasonable. These commenters suggested that EPA may give significant consideration to costs because section 211(c)(4)(C) provIdes that the Administrator “may” approve a SIP revision imposing state fuel controls once he makes the finding of necessity. Conversely, other commenters maintained that EPA may not disapprove the New York SIP revision based on economic grounds, once EPA has made the finding of necessity. Response. EPA believes that it must consider cost to some limited extent whenever the Administrator decides whether to make a finding under section 211(c)(4)(C) that a fuel measure is “necessary” for attainment. As discussed above, to determine whether state fuel controls are necessary, EPA must look first at whether other measures that it determines are reasonable (and, perhaps, other measures the state has adopted) will by themselves achieve timely attalnmentl. Arguably. an alternative measure is, ‘reasonable” only if its effects are less drastic than the effects of the fuel controls. Clearly the cost and supply impact of the state fuel controls will be a factor in any such judgment. EPA does not interpret the use of “may” in section 211(c)(4)(C) to give the Administrator unfettered discretion to disapprove the SIP revision on economic grounds once he has made the finding that state fuel controls are necessary to achieve the standard. Section 211(c)(4)(C) must be read in the context of the preemption created in section 211(c)(4)(A), which prohibits states from adopting inconsistent fuel controls in their SIPs, or anywhere else, for air pollution control purposes. In the face of this prohibition, the sole effect of the “may” in section 211(c)(4)(C) is to authorize the Administrator to overcome a provision (section 211(c)(4)(A)) that would otherwise bar him from approving the SIP revision. The use of “may” in section 211(c)(4)(C) does not eliminate the obligation that section 11O(a)(3)(A) places on the Administrator to approve the SIP revision, provided it meets the requirements of section 11O(a)(2). See Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 98 (1975). Section 11O(a)(2) requires the Administrator to approve a SIP revision if. among other things, it may be necessary to insure attainment end maintenance of the standard. EPA may not consider the economic impact of a necessary SIP revision under section l1O(a)(2); under that provision, it is for the state to determine what economic costs are appropriate to achieve the standards. Union Electric Co. v. E.P.A., 427 U.S. 248, 256-258 (1976). Beyond that, it would be incongruous for Congress to give EPA more discretion to reject a SiP revision for reasons unrelated to the goal of achieving the standard as quickly as possible precisely where EPA has determined that a SIP revision is necessary to achieve the standard. Therefore, once EPA makes the finding that state fuel controls are necessary to achieve the standard, a finding which includes a determination that such fuel controls are more reasonable than other available measures, EPA may not reject a state’s SIP proposal simply for economic reasons. One commenter cited Motor vehicle Manufacturers Assoca lion v.’E.P.A., 768 F.2d 385, 389—390 (DC Cir. 1985). for the proposition that the use of “may” under section 211 commits the decision to the discretion of the Administrator. In MVMA the court was examining EPA’s decision to grant a waiver under section 211(0(4) of the Act for the use of fdel additives not substantially similar to those in the’fuel EPA uses to certify the emissions from automobiles. The court was not examining section 211(c)(4)(C), which allows EPA, upon making a particular finding not mentioned in section 211(fl(4), to act on a SIP revision submitted by a state alter full hearing at the state level and subject to the requirements of sections 11O(a)(2) and (3](A). b. Intent of Federal Preemption Under etion 211 - Comments. Several comments insisted that EPA should disapprove New York’s RVP controls because Congress intended to avoid a patchwork of different state fuel controls in favor of a uniformly regulated national market for fuels. These commenters expressed concern that the exception in section 211(c)(4)(C) to the rule of preemption under section 211(c)(4)(A) would eventually swallow the rule, Several comments urged EPA not to act inconsistently with its decision not to limit gasoline to 9 psi in 1989 in the federal RVP control program. On the other hand, several comments urged EPA to support the regional approach to RVP control that the NESCAUM States are undertaking. One commenter pointed out that where Congress has not acted to address the ozone nonattainment problem, it is reasonable to let the States do all they can to attain. Response. It is clear that section 211(c)(4)(A) indicates that Congress desired to maintain a nationally regulated market for fuels. It is equally clear that section 211(c)(4)(C) indicates Congress recognized that there will be states where the air quality problem is so severe that the interest in a nationally regulated market must bow to the need for additional state controls on Euel.content. EPA has not been able to find any legislative history which illuminates with any detail beyond the language of the Act how EPA should strike this balance. It is reasonable to infer that Congress was aware that the air quality needs of particular States might create varying fuel content requirements, and that Congress accepted that risk in favor of protecting the public health. Several commentera cited Exxon Corp. v. City of New York, 548 F.2d 1088 (Zd Cir. 1977), as precedent that a uniformly regulated fuel market Is the overriding purpose behind section 211(c)(4). In Exxon the court, however, was not faced with a claim for an exception to preemption under section 211(c)(4)(C), and specifically left it to EPA to determine ------- 2(3035 Federal Re Lster / Vol. 54. No. 118 I Wednesday. June 21. 1989 / Rules and Regulations whether such an exception is appropriate: The Act sensibly provides for an e’ccepiion from its comprehensive preemption of local re8tllation of motor vehicle lucia only when such regulation is a provision in a Slate iniplcincntation plan approved by the Administrator who has the competence to make the needed professional engineering and energy conservation decisions. Id. at 1096. Once EPA has made a finding of necessity under section Z11(c)(4)(C), it is reasonable for EPA to interpret the Act to place paramount importance on protecting public health and achieving the standard. EPA believes that the oil industry’s concern that the exception will swallow the rule is overstated. As described above, EPA will approve inconsistent state fuel controls only where the state can demonstrate that exhausting all other reasonable alternatives will not achieve the standard, taking costs into account in determining reasonableness. This demonstration is not a trivial hurdle, and it is highly unlikely that every state with an ozone nonattainment area could make such a showing. Furthermore, a State is unlikely to b.urden its citizens with the potentially higher cost of lower RVP fuel unless the air quality needs are compelling. Finally, regional initiatives such as NESCAUM’s help avoid a wide variety among State controls. In this case, the New York RVP program is virtually identical to the RVP programs already approved for Massachussets, Rhode Island, and Connecticut, and titus, provides consistent supply requirements over a group of contiguous States. EPI also believes that its decision not to impose a limit of 9 psi by 1089 in EPA’s RVP control program does not preclude EPA from approving New York’s SIP revision. When developing its federal RVP control program, EPA imposed controls across the nation, and had to determine the level of RVP control which supply sources for the entire continental United States could reasonably meet. Further, although EPA was able to make this determination as to particular regions within the country, EPA did not intend to account for the particular air quality needs of each state. 4. What cffect will the 9 RVP limit in New York have on the cost and supply of gasoline? Comments. Several commenters stated that if the 9 psi standard took effect in 1989 the djstribution system would be strained and that there could be some significant supply dislocation und cost increases. Several cther commeriters were concerned about possible supply problems. Several stated that even if refiners had the capacity to produce 9 psi gasoline, there would be logistical problems requiring the need for additional storage tanks for the gasoline and excess butane. Other comments suggested that foreign imports at 9 psi might not be available. Most of the oil company commenters stated that there will be some need for capital improvements at refineries to meet the 9 psi standard. Several coinnienters stated that there will likely be a cost impact to the New York standard and other commenters stated that they were worried about the increased cost. One other comment stated that the estimates of increased cost do not reflect the extra cost increase that could accompany a significant supply disruption. Proponents cited two studies as support for the position that supply is not a problem. Response. The potential supply problems arise out of two factors. First, decreasing the volatility of gasoline requires increased refinery capacity. It is certain that implementation of 9 psi volatility in the NESCAUM States will create a refining capacity reduction in the amount of gasoline capable of being produced at each refinery. This is true of both domestic and foreign suppliers. Second, the problem may be further exacerbated by the expected increased demand for gasoline in the summer months. Various studies have been conducted to determine how much refining capacity will be lost from implementation of 9 psi volatility in the NESCAUM states, how much demand for gasoline is likely to increase in the summer of 1989, and what effect these factors wilL.have on gasoline supply capabilities. The two studies done for NESCAUM and the one done for EPA. are inconclusive. There appear to be numerous factors which make precise prediction of these effects impossible. However, under the EPA study (Sobotka study), estimates indicate that the volatility standard may be feasible without serious supply problems. The Sobotka study cites the Department of Energy (DOE) as predicting that demand for gasoline should increase only in the range of I to 1.5 percent this summer. This estimate is also supported by other studies including one reported at a National Petroleum Refiners Association conference. The study also estimates that approximately a five percent refining capacity shortfall will occur at domestic refineries because of the NESCAUM volatility regulations. The study estimates that with a 1 2 percent increase in demand for gasoline in the summer, U.S refineries would he able to make up for a five percent domestic shortfall, and a ten percent import shortfall, without construction of new facilities or installation of additional equipment. Although various factors make it impossible to accurately predict the refining shortfall of imported gasoline, there is no strong evidence indicating that it will exceed ten percent. Thus, the Sobotka study suggests that it is likely that the resulting refinery capacity shortfalls from a 9 psi standard in 1969 should not result in supply shortfalls. In the unlikely event of unforeseen supply disruptions, the State of New York has the authority to take immediate steps to provide needed waivers or exceptions to the program. In fact, the State has already exercised this authority by exempting several western counties from the 9 psi rule for 1989. It should be noted that the State based this decision solely on the potential for supply problems and not on any lack of air quality problems in these areas. The State has committed to carefully monitor the supply situation this year and take other appropriate actions, as may be necessary. to ensure that supply problems do not occur as a result of its State RVP control program. See also the response to section 9 later in this notice for more discussion of State waivers or exceptions. 5. What effect will 9 RVP gasoline have on driveability in cold weather and on vehicle safety? Comments. Several commenters expressed concern that the 9 RVP fuel would cause hard starting, hesitation, and stalling in automobiles and farm equipment during the early spring and late fall. They stated that gasoline will have to enter the distribution system in March and will not be out until October in order to comply with the regulation. Other comments, including several from automobile manufacturers, indicated that there should be no adverse effect from the use of 9 RVP fuel. Response. We believe that the nature of the gasoline distribution system makes it very unlikely that 9 RVP fuel.. will be available to consumers in March or early April, even if the blending-down process by that time has begun to reduce RVP. Continued availability of low-RVP fuel is even less likely by late.. October because the blending-up . , process will occur rapidly at the close of- the control period. Nevertheless, the’ 4,: experience of California, which has required 9 RVP fuel foi’ many yea rs,’- c-..’ ------- appears to demonstrate that widespread driveability or fuel safety problems will not occur in the Northeast. We know of no evidence of extensive problems in California. despite significant operation at cool temperatures and high elevations. As further evidence of this conclusion. one can compare the true vapor pressure (TVP) experienced in fuel tanks at different times during the year. For example, when corrected for elevation. gasoline in Billings. Montana at its January 1988 average RVP of 13.6 psi and at the historic low January temperature of —30 degrees Fahrenheit would result in a true vapor pressure of 1.0 psi. Similarly, for New York, the analogous RVP and temperature of 10.0 psi RVP and —12 degrees F. would also result in a TVP of 1.0 psi. In contrast, 8.5 psi RVP fuel at en analogous New York temperature of 18 degrees F. would result in a TVP of 1.8 psi, 80 percent higher than the winter figure. We conclude from this that if low-volatility fuel were to r ach consumers during very low temperature weather, any degradation in driveability would be no greater (and would likely be less) than that experienced currently during the winter. - Conversely, low volatility fuel should improve vehicle driveability in very hot weather by reducing the occurrence of such conditions as vapor lock and fuel foaming. 6. Is there really a severe ozone problem in New York or the Northeast? Comments, A number of industry commenters, in urging EPA to disapprove the SIP revision, claimed that the air Is really becoming cleaner and cleaner over time and that the ozone standard is being met more than 99% of the year. Environmental groups countered these claims with data from 1987 and 1988 which show a worsening of the ozone problem since 1986. They noted that 1988 was one of the worst ozone seasons on record across the Northeast. Response. EPA Is firmly convinced that there is a serious ozone problem In the Northeast. EPA’s conviction was evidenced by last year’s SIP calls to New York and most other Northeast states. This SIP call was based on 1985-. 1987 ozone monitoring data which ranked New York among the worst .ozone nonattainment areas in the country. EPA’s concern is further heightened by the 1988 ozone season. The ozone standard was exceeded more frequently, at more sites, and at higher levels in 1988 than in 1987. 7. Has New York demonstrated that it has an adequate enforcen ent program or adequate resources to implement the RVP regulation, as required by section 110 of the Act? 26O3 0. Has New York satisfied the Act’s public notice and hearing rcqumremefl 5 7 Fad ra)’Register / Vol. 54, No, ha I Wednesda ’, June 21, 1989 / Rules nd Regulatioris Coniinen s. Several commenters questioned whether the New York SIP revision was adopted after “reasonable Gommezits. One cornmenter notice and public hearing.” While questioned whether New York has acknowledging that public hearings developed an adequate program for were held, they aijeged that the decision enforcement of the regulation, to limit RVP to 9 psi was actually made Response. EPA believes that the State by NESCAUM some time before public has developed an adequate enforcement hearings on the New York RVP program for its RVP regulation. The . , regulation, and that therefore any hearing nominally provided was State has trained enough personnel - substantively inadequate. On the other (with the help of NESCAUM and the hand, NESCAUM commented that ozone State of California) to allow four teams pollution problems, especially in the to perform field inspections. Given that Northeast, are clearly regional problems New York will be testing only at the and must therefore be dealt with primary distribution level and will be . through consistent regulations. relying to some extent on examination ‘ Other commenters questioned of distributor records, EPA believes that whether notice and hearing was the State has adequate personnel to provided on the SIP revision or lust a carry Out the RVP program as required State regulation. They believe that it by section 110(a)(2)(F) of the Act. In was unclear from the public notices and addition, the State has indicated that it materials available before the hearing will eventually tie in RVP sampling with that the RVP rule was actually intended Stage I inspections that the State has to be submitted as a revision to the SIP. been re8ularly performing for several Response. As to the first claim, EPA’s years at terminals and on gasoline tank TSD provides the date that the public trucks. Finally, it should be noted that notice was published and Contains an retail outlets, which are not subject to itemization of the dates the public enforcement under the State’s rule, will hearinga’were held. Although there is no be subject to EPA’S national . summary statement that the public enforcement program. If gasoline that participation requirements for hearing does not comply with New York’s 9 psi and,notice were met, the record does limit is found at retailers in the State by speak to that effect. EPA, we will surely share such evidence EPA finds concerns that the public with the State. hearings were largely meaningless and EPA notes that in the comparable thus not “reasonable” to be misplaced. arena of enforcement through Delayed EPA is not convinced that New York Compliance Orders (DCOs), courts have ‘ and the other NESCAUM States had held that EPA may not second guess the predetermined the outcome of the state’s choice of enforcement - hearings beforehand and without regard to the hearings held in August 1988. mechanisms so long as the chosen EPA acknowledges that New York did system is a reasonable one. See Bethlehem Steel Corp. v. U.S E.P.A., o a initiate rulemaking on RVP control pursuant to an agreement with the other F.2d 99L 1005—1006(7th Cir. 1980): ,northeastern states. However, having appealed, Bethlehem Steel v. Corsuch, initiated the rulemaking on that basis, 726 F.2d 356 (7th Cii’, 1984), reh. den., en the State then proceeded to promulgate banc, vacated on reh., 732 F.2d 97 (7th the regulations through its full Cir. 1904), withdrawn and appealed, 742 administrative process, giving adequate F,Znd 1028(7th Cir. 1984). notice and opportunity for public Furthermore, even if the New York hearing on the proposed regulations. rule’s enforcement scheme were As a policy matter EPA agrees that inadequate to support a finding, the ozone problem in the Northeast is a ultimately, that the state’s eventually problem of regional magnitude and has complete ozone SIP update meets all of held several meetings with top EPA and the requirements In section 110(a)(2), State envirorunental officials in EPA EPA could still approve the rule under Regions I, II, and III to determine whet section 11O(a)(3). Th t is because, even concerted efforts the States could take with an inadequate enforcement on their own to deal with issues of program, the rule would still strengthen regional, but not necessarily national, the pre-existing SIP and hence, under scope. Therefore EPA believes that it is the rationale in Michigan v. Thomas. 805 appropriate for the northeastern states F.2d 170, 188(6th Cir. 1988), be to regulate ozone precursors in a approvable for that limited purpose. consistent fashion. However, each state ------- 2 ’)3 Federal Register / Vol. 54, No. 118 / Wednesddy, June 21, 1909 / Rules arid Regulations must provide for adequate public p irIicipation in the promulgation of •nch iilu.il rc ulattons, including asccs .ng anti responding to all i.ubimtlcd coriments, as New York has i one in onncction with its RVP r-cjti! iions. As discussed more fully bc!ow. EPA reviewed New York’s public participation procedure and determined that the State provided adequate opportunity fur public input in cn:v ection with development of the R\’P rule. The commenters argued specifically that Ncw York’s hearing procedure was not adequate to comply with section 110 of the Act or EPA’s hearing regulations at 40 CFR section 51.102. The operative lani uare an both the statute and the re u ataon is “reasonable notice end public hearing.’ The commenters as ertcd that New York had predetermined its Final decision on RVP regulation and thus the hearing provided was not reasonable. However. EPA interprets the language of both t!ie statute and the implementing regulations as requiring the state to provide. first, reasonable notice of a public hearing, and 8CCOrid, a public hearing. EPA doesnot believe that the law requires the Agency to review the hearing record and determine whether the hearing provided was itself “reasonable.’ EI’A’s interpretation of the hearing requirement is clearly reflecterl in the regulations at 40 CFR 51.102. The regulations go into substantial detail on the manner in which states must provide notice of a hearing in order for that notice to be considered reasonable. See 40 CFR 51.102(d); see also 40 CFR 51.102(g)(2). However, the regulations mako absolutely no mention of specific requirements for conduct of public hearings. The state need only certify that it in fact held a public hearing. which New York clearly did, and need not provide any detailed information on the conduct of the hearing. This is appropriate because the reasonableness of public notice can be assessed objectively by reviewing the amount and variety of notice methods used. Assessing the reasonableness of a hearing on the other hand would be a highly subjective determination done ‘ restrospeclively that would unnecessarily infringe on the State’s discretion in conducting its hearings. Of course, if EPA received concrete evidence that the hearing did not provide adequate opportunity for public oarticipation. it could find that the hearing did not meet the intent of EPA’s regulation. One commenter claimed that New York failed to provide prior public hearing on the waiver provisions of Its RVP program, and thus that the hearing did not in fact provide adequate opportunity for public participation IL is true that the August 1983 hearing did not cover the waiver pros isiuns. However, New York held a separdie hearing on the waiver provisions in pirticular on March 2, 1989. This liearirg provided the required oppoitunity fur public participation on the RVP program as a whole, including the waiv’r provisions. The commenters furthur claimed that a state must specifically identify a proposed regulation as a future SiP ravision prior to scheduling a public hearing on the regulation. However neither the statute nor F.PAs regulations contain any such explicit requirement. The purpose of a public hearing is to receive public input on the substance of proposed reguldtions not on whether. the state may or may not submit the regulations as a SIP revision. For years EPA has approved SIP revisions with no analysis of whether the state had publicly announced it intent to eventually submit a proposed regulation as a SIP revision at the state public hearing stage. Generally it should be totally irrelevant to public conimenters whether a regulation with which they will be required to comply as a matter of state law might also become an aspect of federal law. At the time New York held its public hearing on the RVP rule, prior to federal preemption, commenters should similarly have had no concern as to whether the proposed State rule would eventually become federal law as well. Only where a state regulation would otherwise be preempted by existing federal law and therefore unenforceable would the public have a need to know that the stale intended to seek federal approval of the regulation for purposes of preemption waiver in preparing comments at the state hearing level. This was not the case at the time of the Stale hearing on New York’s RVP. rule. Moreover, given EPA s then outstanding proposal to regulate RVP and thus preempt state RVP regulation, it should have been apparent to commenters at the time of the public hearing that New York would submit the rule as a SIP revision to insure enforcedbility in the event of EPA final. RVP regulation and preemption. ‘9. Should waivers or exemptions from the State regulations be granted to suppliers who cannot provide 9 RVP gasoline, and for alcohol blends of gasoline? Comments. Several commenters. expressed concern over the State’s Issuance of a waiver for western New York for 1989 since it Introduces uncertainties about whether the volatility regulations will be applied fairly and equitably to all gasoline suppliers They indicated that the use of supplier-specific waiver provisions could diminish the calculated benefits of the rule by allowing higher RVP gasoline into the system, and financially disadvantage those companies which are able to comply. In addition, coinmenters noted that the SIP revision submitted to EPA by the State, and F.PA’s subsequent Federal Register notice. (ailed to consider the State’s decision to exempt western New York. With specific regard to alcohol fuel exemptions, one commenter noted that the inconsistency between New York’s and EPA’s volatility programs appears “counterproductive,” because, for example, ethanol blending increases volatility and therefore evaporative emissions increase. The commenter noted that in EPA’s Notice of Proposed Rulemaking for a national RVP regulation (52 FR 31293, August 19, 1907). EPA concluded that gasohol usage results in a greater contribution to ozone formation than the gasoline which it replaces. The commenters concluded that if waivers or exemptions are to be used. they must apply to all suppliers and significant penalties should be attached. In addition, one commenter noted that EPA has to consider how it will respond to supplier-specific waiver requests; and EPA “is urged to adopt a policy on waivers which is consistent with Its own RVP regulatory program.” Response. EPA is aware that New York has granted a waiver for the western portion of the State and also intends to grant waivers to individual suppliers, if necessary. to avoid serious supply dislocations during the Initial stages of the RVP program. Although EPA did not focus on thl aspect of the program in its NPR, it is safe to conclude that commenters were also aware of the State’s actions and Intentions since the issue was fully aired in the public comments. EPA is approving the New York RVP program as a whole, which includes the ability of the State to Issue waivers as appropriate. EPA Is approving the waiver already issued (or western New York and Is In essence pre-epproving arty additional waivers that New York might grant as part of the overall RVP program beIng approved into the New York SIP today. New York will not be required to submit each waiver to EPA as a SIP revision before t may take effect. - •.. .‘ . - EPA Is currently able to pre-approve. any waivers that New York may grant because the RVP program Is a ------- Federal Register/Vol. 54, No. 118 I Wednesday , June 21, 1989 / Rules and Regulations 26039 discretionary program that the State has submitted to generate additional emission reductions and move the State closer to attainment of the ozone NAAQS. EPA is not pre-approving waivers from a federally required program or a program to which EPA has already assigned specific emission reduction credits as part of an overall attainment demonstration. EPA could - not pre-approve waivers in such situations because they would constitute SIP relaxations. Here, whatever emission reductions New York obtains from the RVP program, even after any waivers have been granted, will tighten the existing SIP and improve air quality. EPA notes that its pre-approval of any waivers New York may 8rant under the RVP program differs dramatically from approval of a generic permitting program such as a new source review or bubble program. In those cases. EPA authorizes States to approve relaxations of otherwise applicable SIP requirements provided that the State follows SIP approved procedures calculated to insure that all such waivers are accounted for in the SIP attainment demonstration and are issued using replicable evaluation techniques. Here, since EPA is not currently relying on the New York RVP program for any defined emission reduction credit toward an approved. attaintment demonstration, EPA need not now analyze the criteria by which New York will Issue any waivers. New York is free to Issue waivers on the basis of its own State criteria, consistent with any requirements of its State administrative procedure act. Several commenters questioned the line New York drew in exempting the western half of the State. and argued that some inequities would result for suppliers doing business at the demarcation line: These are concerns to be addressed to the State since EPA is not at this time addressing the substance of New York’s waiver criteria. When New York does submit Its completed post-1987 attainment demonstration. EPA will assign specific emission reduction credits to the RVP program, taking account of any supplier-’ specifIc waivers the State may have issued by that time. Once EPA has approved the New York post-1987 SIP, it will take whatever rulemaking action is necessary to ensure that any further waivers under the RVP program, which at that point would be considered SIP •relaxations. would be submitted to EPA for approval as Individual SIP revisions. Finally, EPA notes that any suppliers who receive waivers from New York must still comply with the Federal RVP limit of 10.5 psI, In its fuel volatility regulation, New York has included provisions which allow the Commissioner to grant an exception to suppliers of fuels which are composed of a blend of gasoline and simple alcohols upon showing that gasoline is not available that, when blended, would meet the 9 psi standard With regard to this provision, It must be noted that: .ilcohol blends represent a small fraction of the State’s fuel market; that such exemptions would help to avoid any impediments to the development of alternative fuels; and that these alcohol blends are not excluded from complying with the requirements for alcohol blends of gasoline set forth by EPA in its Federal Register Notice of March 22, 1989 (54 FR 11888) limiting the RVP of gasoline during the summer months to 10.5 psi (beginning 1989). The Federal rule requires that methanol blends meet the same RVP requirements of gasoline and that ethanol blends meet a RVP not more than 1 psi above the allowable RVP for gasoline. Thus there will be no loss in emission reductions relative to the Federal program, which Is the only alternative to the New York program. EPA has no authority to disapprove the State’s rule just because the additional “necessary” emission reductions that it would achieve are not as large as those that might be achieved through a rule tailored differently. Furthermore, EPA believes that concerns about alcohol blends in New York may be of little practical Importance because field testing of gasoline by EPA throughout the summer of 1988 found virtually no alcohol In gasoline. 10. How soon after the date of final approval of the New York revisions should the RVP regulations be made effective? Comments. A great deal of the comments received pertained to the timing of EPA’s final action. Those favoring EPA approval of the SIP revision generally favored EPA acting quickly to take the regulations effective by their May 1 starting date or as close to that as possible. These commenters note that the Colonial Pipeline, which supplies 20 percent of the Northeast’s gasoline, has been shipping 9 RVP fuel to the Northeast since March 1, 1989. They also pointed out that those suppliers who have made a good faith effort to comply with the May 1st date would be at a competitive disadvantage relative to those with cheaper, higher volatility gasoline If the date is extended. Those opposing EPA approval of the SIP revision generally asked that if we did approve it we must provide the petroleum industry with realistic and sufficuer t leadtime to enable 9 psi gasoline to be distributed throughout the distribution system. These commenters cited EPA’s allowing 70 and 100 days for the recently promulgated national regulations to become effective at the tcrminal and retail level respectively as precedent for such a decision. A third path, suggested by one commenter, would be for EPA to make its final approval conditional on the Slate’s S . deferral of the compliance date for its regulation. Response. The timing issue is one of the most difficult ones posed by thié action. Since EPA has had control of the timing of the final federal RVP action, the decision on the previously granted Massachusetts, Rhode Island, Connecticut, and New Jersey RVP SIP revisions, and the decision on the New York RVP revision, it is important that we ensure that both the federal and slate programs start with a maximum likelihood of success and a minimum possibility of supply disruption. EPA must consider several issues in deciding when to make the rule effective. The first issue is when the industry was put on notice that it would have to supply 9 psi gasoline to New York. Since the New York rule was passed in 1988, the industry was on notice since then of the Slate’s intention to control RVP to 9 psI. However, the New York rule was preempted on March 22, 1989 by the promulgation of the federal volatility requirements. Another issue to consider is the lead- time that would be necessary to enable 9 psi gasoline to get through the distribution system. The record indicates that the industry thought that it would take from 60 to 70 days to achieve compliance at the terminals in New York. The record also indicates that the Colonial Pipeline, which supplies at least 20 percent of the gasoline In the Northeast, has been shipping 9 psi gasoline since March 1, 1989. The final issue involves the air quality consequences of delaying the effective date. EPA should not delay action on a SIP revision in such a manner as would lhwart the Slate’s Intent in requesting (lie SiP revision. New York’s submittal of the RVP SIP revision in January was clearly aimed at getting Its regulalory program in place for the 1989 ozone season. Thus, It is important to have the effective date as early as possible in order to maximize the air quality benefits ef the program of 1989. In deciding to make this action effective on June 30, 1989, EPA has attempted to balance these competing ------- fiO40 Federal Register I Vol. 54. No. 110 I Wednesday. June 21, 1989 ‘I Rules and Regulations’ ntorestg. EPA believes the June 30 date rull both minimize possible difficulties ho industiy might encounter wilh a honor lczicl-time and provide cilizen3 In he Nortllca5t as much relief as is iructical dUnin8 most of the 1989 ozone eason. Although some suppliers may .ave made a good faith effort to comply ‘ iih the May I effective date specified n the New York proposal. they were andcr no obligation to do so once EPA ,reempted the New York requirement y promulgating federal RVP controls on 1arch 22. iaao. The Agency cannot. herefore. select an earlier effective date or all suppliers based on the voluntary iction of a few, especially considering hat the time between the March 22 ederal rulemaking and today’s ublication is critical to the refiner! upplier planning and implementation ,roccss regarding fuel delivery for the :oming summer. However, because refiners have itready begun to prepare for the sale of p RVP fuel as a result of EPA’s approval f the Massachusetts, Rhode Island, onnecticut. and New Jersey RVP SIPs and in light of the fact that these states ;hare many links in the gasoline listribution network, the Agency does ot believe that an additional 60 to 70 hays Iced-time Is warranted. This atarting date in New York, therefore. mrrors the starting date in Aassachusetts, Rhode Island, onnecticut, and New Jersey. ii. Should EPA reopen the comment eriod or withdrawal and repropose this SIP revision in light of EPA’s final action an the national RVP regulation, the court challenge to the rule and other aLleged Jefects in the March proposal? Con rnenLs. EPA received divergent comments on the appropriate process br and timing of a final action on New York’s SIP revision. Several commenters argued that EPA should take final action as soon as possible. On the other hand. other commenters felt that because of numerous allegedly unresolved issues raised in their substantive comments, potential air quality implications of the waiver New York provided for the western portion of the State. and the pending American Petroleum Institute court challenge to the rule. EPA ahould. . at a minimum repropose action on the revision to deal with these issues before proceeding to final action. Response. EPA concludes that given its interpretation of the relevant law and the seasonal nature of the New York revisions, the Agency should proceed expeditiously to final action based on the record currently before it. EPA is unpersunded by the claim that circumstances have so changed since the proposed approval of the New York revisions that we should reopen the comment pet iod or withdraw and reprnpose this action EPA’s NPR for the New York RVP program explicitly discussed EPA’s final action on the national RVP program relevant to final action on the State program. EPA clearly presented the path which EPA proposed to follow and the conclusions which we proposed to reach in light of the final promulgation of federal RVP regulations. Furthermore, in the final Federal Register notice on the national RVP program EPA explicitly discussed consideration of different state RVP control programs. Ira this case EPA concludes that it is not necessary to issue a reproposal prior to taking final action. EPA believes that it has adequately responded to all of the substantive comments raised by commenters in the substantive discussions presented above. Obviously, additional analysis on such technical issues could always be conducted. However, idministrative agencies generally have the discretion to determine when Issues have been aired sufficiently and to close the record and proceed to final action, consistent of course with the need to act Ira a reasoned, non-arbitrary fashion (Vermont Yankee Nuclear Power v. N.R , D.C., 435 U.S. 519. 554-655 (1978)). Commentere argued that the waiver - granted by New York for the western portion of the State may have such significant air quality implications for the rest of the State that EPA should delay action while new air quality analyses are done to recalculate the emission reduction benefits of the RVP rule in the eastern portions of the State. However. New York’s analyses were based on the effects of the RVP rule in each nonattainment area, such that application of the rule in only certain portions of the State will not affeot the overall emission reductions to be - achieved in any one area. EPA did indicate in ita proposal that it believed New York had made the RVP rule effective on a statewide basis in order to ensure compliarue in all of the relevant nonattainineni areas in light of their scattered geographical distribution and the existing gasoline distribution system. New York in fact exempted the western portion of the State based upon supply problems particular to that region. New York believes that the separate distribution system that serves the eastern half of the State will have no problem supplying adequate quantities of 9 RVP fuel, and that application of the RVP rule throughout his area is necessary to ensure compliance. Given these facts EPA concludes that the waiver for the western half of the State does not require reproposal. Further. EPA should not dcluy action on a SIP revision in such a maniier that would thwart the State’s intent in requesting the SIP revision. In this case. New York has submitted a seasonal requirement that since currently preempted must be approved in a timely fashion in order to effectuate the state’s inLent that the regulations provide emission reduction benefits in the upcoming summer ozone season. Therefore. EPA should make best efforts to act on the information available to it now to the extent that it is adequate or else the agency would thwart the Slate’s intent with regard to the 1989 ozone season. Since EPA has concluded that the existing record is suffIcient, EPA can proceed to final action at this time based on that record. Fin ally. EPA finds no reason to delay its final action on thia SIP revision due to the pending court challenge to the RVP program. The lawsuit Is merely pending, and until such time, If any, as the court acts to overturn the program EPA believes It Is appropriate to proceed with action on the program as with any SIP revision requested by a state. Enforcement ‘. EPA’s proposal of the New York SIP revision indicated that there was a problem with the test method section. The regulation required that fuel sampling and testing shall be “by methods acceptable to the Commissioner.” EPA stated that such methods must include the EPA recognized methode contained in EPA’s national volatility rule. On April 27. 1989, EPA received comments from the New York State Department of Environmental Conservation which clarified the State’s teat method section. In these comments, the State identified the methods acceptable to the Commissioner as being identical to the EPA recngnized methodsand, In addition, committed to Incorporating these specific methods into its SIP at a future date. EPA fuids that its concerns related to the test methods were addressed sufficiently by the Slate and that the test methods section is approvable. Final Action EPA is approving this revision to tbe New York Ozone State Implementation Plan to control gasoline volatility. including any waivers New York may grant under the program. F.PA has also made the finding that the New York SIP ------- Federal Register I Vol. 54, No. 118 I Wednesday, June 21, 1989 / Rules and Regulations 26011 revision meets the requirements of section 211(c)(4)(C) of the Act for an exception to federal preemption. The Office of Management and Budget has exempted this rule from the requirements of Section 3 of Executive Order 12291. Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed In the United States Court of Appeals for the appropriate circuit within 60 days of publication. This action may not be challenged later in proceedings to enforce its requirements [ See section 307(b)(2)J. Effective Data The Administrator has determined that there is good cause, within the• meaning of 5 U.S.C. section 553(d)(3), to make this action effective less than 30 days alter publication. The industry has been on notice since the Administrator approved the Massachusetts RVP SIP (54 FR 19173; May 3, 1989) that the Administrator was inclined to approve Inconsistent state RVP rules to the extent necessary toprovide for attakunent. Making this action effective on the same date as the Massachusetts, Connecticut, Rhode Island and New Jersey RVP rules provides the industry with a uniform effective date for all of the state rules limiting RVP to 9.0 psi in the Northeast. In addition, postponing the effective date beyond June 30 would undermine the State’s ability to achieve the reductions in 1989 summer ozone concentrations for which the RVP program was intended. List of Subjects in 40 CFR Part 52 Air pollution control. Hydrocarbons, Ozone, and Incorporation by reference. Note..— Incorporation by reference of the State Implementation Plan for the State or New York was approved by the Director or the Federal Register on July 1, 1982. Authority: 42 U.S.C. 7401-7042. EPA is today approving the New York SIP revision pertaining to its State gasoline volatility program. Date: June 9. 1989. William K. Reilly. Administrator. For the reasons set forth in the preamble, Part 52 of Chapter 1, Title 40 of the Code of Federal Regulations is amended as follows: PART 52—(AMENDEDJ Subpart HH—New York 1. The authority citation for Part 52 continues to read as follows: ‘Authorfty ’ 42 U.S.C. 7401-7642. 2. Section 52.1670 is amended by adding paragraph (c)(79) to read as follows: § 52.1670 IdentificatIon of plan. • • • a * (c) * a a S S S (79) RevIsions to the New York State Implementation Plan (SIP) for ozone submitted on January 31, 1989 and March 13, 1989 by the New York State Department of Environmental onservation (NYSDEC) for its state gasoline volatility control program, including any waivers under the program that New York may grant. In 1989, the control period will begin on June 30. (i) Incorporation by reference: Subpart 225—3 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York entitled “Fuel Composition and Use— Volatile Motor Fuels.” adopted on December 5, 1988, and effective on January 4, 1989. (ii) Additional material: April 27, 1989 letter from Thomas Jorling, NYSDEC, to William Muazynski, EPA Region II. 3. The table in 52.1679 is amended by adding a new entry Subpart 225—3 in numerical order to read as follows; § 52.1679 EPA—approved New York State regulations. [ FR Doc. 89-14390 Filed 6-20-89: ft45 aini eiwwo coca use-so-u 40 CFR Parts 60 and 61 (FRL-3603-81 Standards of Performance for New Stationary Sources and National Emission Standards for Hazardous Air Pollutants; Delegation pf Authority to the State of Iowa AGENCY: Envlionrnental Protection Agency (EPA). ..::.: ACTION: Notice of ‘delegation of authority. SUMMARY: This notice announces an extension of previously-Issued delegations of authority for the Implementation and enforcement of the federal Standards of Performance for New Stationary Sourcps (commonly known as New Source Performance Standards or NSPS). 40 CFR Part 60, and the federal National Emission Standards for Hazardous Air Pollutants (NESHAP), 40 CFR Part 61. The action which involved EPA and the state of Iowa added two (2) NSPS and two (2) NESHAP categories to the delegations of authority. The state of Iowa also updated its previously-delegated NSPS categories to match current federal rules, Incorporating any amendments or corrections published since original promulgation and slightly modifying the language contained in the state rules to match current federal regulations. The NSPS delegation now includes all categories except for grain elevators (Subpart DD) for which federal standards have been promulgated by the EPA through January 29,1988. The NESHAP delegation now includes all categories promulgated through March 19, 1987, except for those covering radon (Subparts B and W). radionuciides (Subparts H. 1. and K), and asbestos ienovation and demolition (under Subpart M). EFFECTIVE DATE; May 4, 1989. ADDRESSES: All requests, reports, applications, submittals, and such other communications required to be submitted under 40 CFR Part 60 or Part 61, including notifications required to be submitted under Subpart A of the regulations, for affected facilities or activities in Iowa should be sent to Chief, Alr’Quality and Solid Waste Pràlection Bureau, Iowa Department of Natural.Resources (II)NR), Henry A. Wallace State Office Building, 900 East Grand. Des Moines, Iowa 50319. A copy of all notices required by Subpart A also must be sent to Director, Air and Toxics New York State reguisuon S IIeCtIVO Latest EPA approved date Comments a’ . . . . • • •p • Subpart 225-3, “Fuel Composition and Use—Volatile Motor 114189 FR date and cItation 01 this document ... - - .. -.. .. Effective date 6F30189. Fuels.”. . . ------- ENVIRONMENTAL PROTECTION AGENCY ADVISORY COMMITTEE ON REFORMULATED GASOLINE, TIOUMPING D OXYGENATED GASOLINE AGREEMENT IN PRINCIPLE The Clean Fuels Advisory Committee (hereinafter Advisory Committee) considered, the technical and policy issues itwolved ii implementing the reformulated gasoline, anbdumping and oxygenated gasoline provisions of sectIons 211 (k) arid (m) of the Clean i r Act, as amended in 1990, and has reached a consensus on the underlying pnnciples of the proposed rules and guidances (hereinafter proposed rules) to implement these provisions. The . a party on the Committee, agrees that: 1. The person signing this agreement is authorized to cxxnmlt the party to its terms. 2. The party concurs ui principle to the outhne of the proposed rules, dated August 16, 1991, when considered ass whole. The outhne of the proposed rules is attached to this Agreement in Princ ’e . 3. EPA agrees to draft preambles and proposed rules conlistent with the attached agreed upon oaline. These preambles arid proposed rules WI form the basis of Supplemental Notices of Proposed Rulemaldng to the maximum extent possible consistent with EPA’s legal obligations. A draft of these Notices WI be made avaMab le to each psily for Its re’Irnw and comment prior to uIgna re by the Adrnñu stor. At the same time these drafts we made available to members 01 the Advisory Committee, copies WI be submitted by EPA to the rulsmafdng dockets. Based on ooawTlents to these drafts, EPA *1 undsr cs, prior to proposal. an W*wmsl process to consult with the parties aid to address the differences be un the commentors. After such consultation, EPA wI pub s’ the Supplemsr l Notices 01 Proposed Rulemaking and extend the comment period for the proposed rules and guidances regarding reformuie’ed gasoline, autidumping and oxygenatedgasohnepublishedonJuly9, 1991 (56FA31148,31151. 31154, and 31178)30 days beyond the publication of the Supplemental Notices in the Federal Register . QI’ ------- 2 4. Each party other than EPA agrees not to file negative comments on the Supplemental Notices pf Proposed Rulemaking to the extent that they have the same substance and effect as the attached outhne. 5. In developing a final rule, EPA will give serious consideration to the attached outline, along with other materials in the docket, subject to the Statement of the President on Signing the Nego ated Rulemaking Act at 1990 and EPA’s other legal obligations. 6. Each party other than EPA agrees not to take any action to inhibit the adoption of the Supplemental Notices of Proposed Rulemaking as final rules to the extent that the final rules and theW preambles have the same substance end effect as the atW d outline concurred in by the A sory Committee. 7. Each party other than EPA agrees not to challenge the reformulated gasoline, antidumping end oxygenated Iabsllng rules in court to the extent that the final rules arid theW preambles have the urns substance and effect as the attached outline concurred in by the Advisory Committee. Each p.iy, however, retains the rig to challenge provisions in the ial rules and thaW preambles W the provisions are not specifically addressed in the attached ou*le. 8. Each party other than EPA agrees to support the oxygenated gasoline guidelines to the extent that the Vial guidelines end thaW preambles have the same substance end affect as the attached outline concurred in by the Advisory Committee. — Date ------- ENVIRONMENTAL PROTECTION AGENCY CLEAN FUELS ADVISORY COMMITTEE OLITUNE OF SUPPLEMENTAL PROPOSED RULES mo GUIDANCES FOR REFORMULATED GASOUNE, T!DUMPING AND OXYGENA TED GASOUNE August 16, 1991 I. REFORMULATED GASOUNE A. CERTiFICATION 1. Reiormijitad ge.olWis produced biiore March 1, 1997* 1 bs cerURed by EPA Ii resJta In no Incrsaes In csddss nitrogen (NOx) (eas paragraph 1A3. bs ); cc,lUis no more ten 1.0 dums psrcere bsnzens; coilakis a lisa 2.0% sn by I d cor 1ne no heavy tviWi ur eas slwsd; and nisas or is bsk the ioI Ing Reid Vapor Prssaws (RVP) apsclitciaion dsalng the ozone . eaao’ — a. InclsssBuea.,l2piRW,and - b. tn isisCweaa &1pdRVP. In Ilon, the geaclins mua msa the tc 1cs psslom*nce ndwd consids.ing is benzsne. oxygsr . and won cs corUrt The is to be is is c 1P o i by the simple modsi. The mudsi WI ce kb ai coj* the C il!s s b i NØisr and b vsr RVP and en vsiust In addition, the reiInVs wv ul reionnidaed gasolIne a rngas iilw, 110 dslliis cannot ( ceId the r*is?s corveapondkig 1990 wmi a ragss. 2. EPA *1 issue $ pio o..d nis by N mbsr 30.19W corisk*ig the spsclflcs a more o inØ. nwdai and ad essIng the o0 psi1om ce da. The umpl modsi Is wbIc gsd to Inolude a lisa me IcIm*i parainasvs stilts, ds RW, c gsn, aron cs beniens and T90. This nie *1 be bed by Uw 1.1990. R cmuiMtad ga ie produced on or e ly l Ut I, 1997 n m be siiMad ia y * o mplar modsi . EPA *5 e IW by Na *nbir 1991. a rl ig gr01 comprised kb.sa.d persons to . psdi. the devulcpinsrl and i j1Io b nis. Each the ps se to this a ,sm.r1 WI convnit to ik In good i to - EPA In dsi IopIng s y ig the addstond ds r’t 1 1 or me oon modsi w to sçedis concwretioe on the bTn . coilsrb, proposi and ti* adoI lon the coinØsK modsi, a000i*ig to the el al and withIn the isn*l ig procees W EPA I ts ble to ftiai s the nis by Mardi 1.19W. the rncerl1lcadon reqi*emeil WI be dsisysd an a month .b .nota be commensivae with the daisy In ------- 2 3. NOxCompilence a. Relormijated gssdlni certhied under the simple model wi be deemed to rssjt In no IncriSse In oddes ol n rogen (NOx)W (1) icc airisnogristsrthan2.1% ygenbywsI tor (2) the ordy oxygsnete 1 contains I MTBE at a concentration no greater than 2.7% oxygen bywelgit EPA WI s sd ouiy procees patilon’s for approvi ygerwtes other tiwi MTBE at conoeivsdons to 21% ygsn by welgit The patiloner mum demonatrats that use of. th ygs . ew ad ey k t psot NOxth oi4’ith. use of edating data or data generated by the patlioner. b. In the cese of nWomii ad gasoline certified under the coniplm mcdii, the rslormiiated gasoline shosid yield a no NOx increase ressit under the mcdii. 4. Ralonnijated gasclkw may be certified by means of the oomplsc model before May 1, 1997. H r, such certPf atIo cannot rsssit in datartoratlon in VOC and t os cs performance from ti achieved with the simple mcdii arid the niihiVs 1990 ennui ,isrigss for ssilur, TOO and 5. Vehide t.atlng *1 be pem i ed to quily n paramatais bit not to madly the coiihlclsrds of — model parameters indudk uon c mygs vielh* TOO, ssiI c, bsrizsne and RVP. When othir parameters we .i sequsiidy added to the cunçler model , the complea model siwil be used in certifying these parameters B. REFORMULATED GASOUNE ENFORCEMENT FOR OXYGEN, BENZENE, TOXICS AND VOCS 1. frI is o ton, a refinery may aleot to comply WIh any wide rilormsimed giPins reqiirsmesls on a per Ion 1.Oxyg - a. CcivçI s with the averaged nd.,d *1 be dstsm*isd at the r lury V the ygsrwt.s SI WI(ILI at the refinery arid at the teankwi V the oscygsr es we added d esm of l sry. b The avem ig period ii be the ciendar for w ise we in kwnsi1 wili the NUOS cwtg n monosdds (CO). For an ares in nor men for CO, the aversig periods siwi be the ccitd period sfrig wirIldi 2.7% ygei ed gasoline muet be sold (ory Canard period ) enid . non canard period. c. The average oscyg.n ndwd for refoimsieted gasoline ef be 2.1% bywelglt d. The rrdninium oscygen content of each galon ii neformijated gssdfris siwil be 1.5% by -t ------- 3 2. ComplIanc, on the average for bsnzene VOC. ar todcs wi be diterTnlnad ona refinery by refinery bssie. No trading or banking wi be permitted for the VOC or toidcs performance 3. VOC averaging for Qua B and C aries (1906-1900) a. The VOC avsragfrug period wi be designated by each refinery prior to the atail the VOC averaging period and ray begin from the tints a refinery masts to make VOC-controlled rulormiiitad gasoline id no later mln September 15. U relormiMted gasoline at d — in ml gasoline dIittfbi *1on syitem ( cept it natal oi ms) muat be VOC-controlled during the period Mayl Ilwough September 15; and for netal o.iita during the period Jim. 1 through September 15. b. For the 1006 it’d 1906 ozone sus.one the average RVP ef the ref iner ’s neforrniiatsd ga.clin.ul b.7.l p CmsBwussandSOpdfcrC Cvisa. Inaddlion the RVP ef iech gilon i’ulonmiated gasoline ef be no eater mln 7.4 psi for Qass B areas and 13 psi for Cteu C aris e. C. For the 1907 ttvougii 1900 ozone MSPV* the average VOC nsducdon the refinery’s nilo,rntiited dlns sI I be it Isit itt addiloref 1.5% abciue the non-averaged manded. Ths n**num VOC reduct#o’t neqi*id ol each galon refomniated gasoline sa be 2.5% bel the non-averaged mandaid (e.g.. N ml non-averaged atandai’d I 15% thin the average VOC nsdumlon the refinery mum achieve I 115% and the n*litnian per gilon VOC mdu o’i rsqi*smsr* I a 12.5%). d. The RW erdorcemeil tolerance or a aingie w ih a skigie nçle taken it other thin thi r y or ml poll it b od # ’ i lb U.S. owrvw s 1.3 psi RVP. A smaller s*rcemsll tolerance for aamples taken anywhere sid be smablw ’ied by EPA based on a m ie sample teat protocol. 4. Tcidcs it’d benzane averaging (1006 .1900) a. The averaging period ef be the endw )W. b The average benasne coilel ef the refinery’s mbitaimed gasoline ehd be no gaiter mli .06 vdiarie peicert The beams conan ef each g on ef r*rmiiited gasoline siwi not Dosed I .3 volume pervert c. The average tondcs edut’ o’t ef be it INat 1.5% the ncn mged mandasd. 5. Co ce a. dsreIve anawy. to dmwitini whether the VOC. oncygun. tci it’d benzsne mandards ana b*ig n at age in each non vnenl erie be designed by a n1cgoi ef a eita from it u y. EPA. the . the e civnei conviu y it ’ d the generef p ø’e The wcdq’ot diafld by EPA, WI seleot one or mc ii induper’derd ooi$a Wns WIt mcog ad .çerml in the Osid. to adwlee in the s wy deign. The euawy d..’gn WI intern nspreeer e mples ef , i m%,j ,A gas w aei to cwuuanira itt a ncn hnen1 erie are taksft The gvt iwi itJ.Uy Med independsrt cos* oi. to cenduot the erawy and EPA si aster ’ one or morn oon actcru to condum the survey. The workg’ct WI mor*cr the uuawy in Mmar*ufIu’i buá EPA si one WI cw ol when and where the ounced erawys are condu ad. ------- 4 b. The ocriracto, conducting the surveys shiM prowld a split sample to sech siMce station surveyed upon requsat. A sample *11 be cciuded from the survey arid, hence, from the non.compllence detemilnhtlon If it sxcasds the applicable rex/mm (enforcement or I deemed by EPA to be hivaMy taken or tested. Th. contractor shiM icldy report survey r.s its to EPA and EPA shiM place the restiti In the public dockeL c. Rdners (kicludkig Importer and blenders) who participate hi the avsraging program wil pay for the surveys d. The base survey program for the i*ie clUes *1 focus more survey. hi the early years the program to otWi greater uaursnce c i kilUal cQn lancs, accordIng to the foI Ing schediW 1. Fkatyear-l2osurveys 2. Sscondyeer-eosuiv.ys 3 Thlrdysar-eosurveys 4. Fourth year arid thereafter —50 surveys MdlUoni surveys wi be added based upon the opordorwi Increase ci the rei’ornv.Mted gesolkie n kut , (jp ,”ed to apt .ln areas Each nor sflner area wotid cpedence at heat one VOC survey hi the Vat year. If any nor talrvei1 aria ls to comply with a survey, the t number ci surveys *1 be Increased proporUor ely ( based on shire ci gasolIne nwkat) to ooowd for the need to rekWi the hl ier stavey lavul hi nor ahime i* aria to smur. filurs oompllance. e. VOC Puifom nce (1) In any nor talnmers aria, I the average ciiM samples (erdudhig mm/mar violations arid h 1d sampiss) taken hi any or ek ci the ozone i i 1s to comply with the applicable non4vsraged VOC iidud, then an a&*onWic edjuatmerl ci the averaged i id arid the n I*i wi ortv hi the e& ee isi1 ozone auaao’i for averaged ricnniild gasolIne produced by each refInery who served or wU serve the nonconçl *ig noneUak nsr* area. Mi efhscted refInery et adjuat iM averaged I ,.uLdetsd gasolIne deeth b any noi vnsi1 ares dealt jnated watt the sum. VOC 1t: lon (B or C, as applicable) as the noncomplyIng nor aInmsr1 area. A rV ieiy wi be a 4sct to at moat orw adIu Tiu1 per ie i ’i (I) The fiat ns the ai*cn c ad$i neias are n l , they at be as blows: (a) In the iae ozu season, average RVP ci the ref kierys ref Ormiiled o ie.i be7.0pefforClessBareasend7.9b’CtassCaruas The NW cieachgiMon cirulonni sd gusoTh ef be no gr erthsn 7.3 psI ke C s Saruas arid 8.2 pal for Class C wsu (b) In the 1W throucil 1909 ozone seasone, the average VOC red’ kwi ci the r*ie. s ref omMiatad gasolIne ald be at lesat 2.5% ab the non4wumged ndwd. The n mum VOC r,dgi o reqiired ci each cn ci re1ormi sd gasolIne al be 1.5% beI the rlcn4veragsd (B Th. second dme the auron c adjuatinelo are the mqi*sd average VOC u o’i at be hici—, 1 an addlUor 1.0%. Mo the n**TUfl VOC rtdu ftLo1i req*.d ci each gelon ci mbonntiated gasolIne af be k reased byanaddllorid 1.0%. ------- 5 (2) Once an edJu rnef1 I applId, compliance wth the applicabli non-averaged standard for two COnNCI*IVS years wi rSa4it hi a one-tkns movemeil the applicable averaged standerd down by one adJu nsi1 (.g.. 1956 noncomplIance - adlust up hi 1 ; 1956 and 1957 complIance - ad Jul down hi 1958). Any subsequerl adju ln%e,1 i wi remain, regardless subesqusit compliance. I. T dcs Psslomwice and 8sr zans Coilsil (1) In any nor ainmsi1 area, I the average aM samples ( udhig n*Vinex violations waii samples) taken hi four toidcs survey, (Iwo hi the summer season and two in the mar eesao i ) condu ed d a1ng the caiendar yw lals to Comply wth the ap ab’s non-averaged toidcs or bertzen landwd, then an aiScn lc adjus*msil WI ij hi tis following calendar year. A bsnzs,w lalw WI bigger orgy a bsnzens adJt nii1 and a to dcs Iure WI tugger orgy a t(Wc , adjulmeit me adneil WI apply to aM averaged mfoimtiatsd gasoline produced by each raMnsiy who seived or WI serve the on ying nor inmei1 area. A mllnsry wi be sub e% to at moat one adJulmarl per ciendar year. The ai*omadc adjulmera l be as follows: 0) the average bsnzsne 0011111 el U raMner s rilonnijatad gasoline etiaM be decreased by an addllora .06 vokene perceil, (I) the n dmum benzsne COIISII ailowed or each gilon rWorn iated gasoline IWI be decreased by an add lond .1 vokans percsr*, (I) the average t Ics mdu Ion l be increased by en addiloni I .0%. (2) Once en ad u nsi* I appl od , compliance wVl ths applIc ls non-averaged ndard two cone.cs years WI msia hi a on ne movemer* el l averaged standard down by one adnea My subsequsre adJuW,neri WI remain, regardless ajbesquerl compliance. 6. Rehire WI submi qiartsrly reports to EPA on the th* averaig pro vn. 7. The year 2000 avem ng pio wn for VOC and tides performance WI be s bllsl’isd hi con un on wth the nismaidng addressing the year 2000 psrfomwnce de. C. TEST TOLERANCES EPA *1 illi appIcpr e tiat tolerances. II. ANTIDUMPING A. CompEwc W i 1996 and 1996 wiN be based on 1. conce WIt th m ws 1990 anniel average sd ul beneens endeuforw (as dlem*isd by the ei’ldiaiçing sEt e modai ) aid the miss enni averages slur. erd 190 n Loilil 125% ol the rd Ws corresponding 1990 smul averages, or 2. use the wu lut model h demon atss no increase hi eid*il bsnesrie undeslons from the riiine s i o arvead average. B. In 1997 and Im&, the oor ex model shaM yield no kiaease Wi sthaust todcs and NOx from the rsllners 1990 annual avvage. ------- 6 C. A refiners 1990 baseline will be modified for refinery work-in-progress at year-end 1990 if it C8fl be demonstrated that 1. such a modification wai significant. I.e.. 1 et Isset a live percent dill ersnce between bsadlne imiasions csicuiatsd with and wlho..* the oi pro sss ms itd, and 2. such wodc wee associated with other reg iatory rsqLdrsmsr*s, and 3. lure to si1 aidS id rs it an s diaos’dkwy r.giimoiy bwdsn, I.e. a substantial portion the mflnsr s c*p woJd be et riak V the a msnt were n giint.d. and 4. such credi wotid n rssit 1 signlcant sn*cvvner twin (e.g., the aidS ii not cause the relfrw to be ftve percent above the Clean k Act wsidumpkig bualk s etc.). D. Myone may petition EPA to establish an indMduai refinery baseline for reflnenes that are located In an leolated gasoline disbibution system which contains a reformulated gasoline opt-in area surrounded by a conventional gasoline area, and where it ‘5 shown that significant increases in todc emissions are occurring in the conventional gasoline area. E. A refinery may elect to establish an indMduai refinery baseline. III . OXYGENATED GASCLJNE A WP le recognizing state discretion, EPA guidelines shall recommend a credit program which shall indude the following: - 1. Each gallon cicygsnsled gisoWe st coW et last 2.0% cx sn by wslgfrt 2. The ioI Q avem g period st apply a. Fea acor psr1od livemoiorlae.thsira ngpsrIodsldbeths b For was wI’i a contr 4 period ak m or longer, the avsm ng period d be three m 3. Compliance WI be detannined et the Ie,mkiet . 4. The corvd wa WWI comist the applicable CMSWS.t s. In me pr ds to ma ider ce, ma IWvS WI be ed lesd to nonlcr ma avakbity a variety el cicyguU ard be advised to l. spprapr e maps r’cuwy to rsssorbly sss ma iasa sr .s tie nwI . B. EPA guidance on the con ol period length shell be in accordance with EPA Approach I I except for Grants Pass, Medlord and ICemadi in the s ci Oregon which shall have cored periods ci four mo,Eis from October 1 until Januery 31. Additionally, the length of the New York City CMSA sh be coordinated with the states of New York, New Jersey and Connecticut. C. EPA will propose waiver guidelines and take public comment ------- 7 IV. INABILITY TO PRODUCE CONFORMING GASOLINE IN EXTRAORDINARY CIRCUMSTANCES In appropriate s,weme and unusual circumetances (e.g. neflnl dleaatv or Act d God) which are dearly oRside the coritroi d the refiner and which cotid not hevebeen avoided by the exorcise ot prudence, dilgence and due cars, EPA may pern a refiner, tori brief perIod, to dl a tiibib fual which does not meet the requirements for refonmiated gasoline it 1. it is In the public kiareet to do so (e.g., dlatrlbiaion d the noncorWOiTning fual is necessary to meet proIe ed shoilfalls which cannot otherwise be compensated for), and 2. the refiner exercised prudent planning and was not able to avoid the violation and has taken all reasonable ateps to minimize the e 4snt d the noncordornity, and 3. the refiner can show how the requirements for rulonnLdstsd gasoline wi be expeditiously ach ed, and 4. the refiner agrees to make i thea quality detriment assoclated with the noncorWorming gascW* where practlcabl and 5. pay the U.S. Treasury an amount equal to the economic benefit ot the noncordormity minus the amount endad, pursuant to subparagraph 4 ab in maldng i the air quality detriment EPA guidance on the yger ed gasoline program s advise the tes to consider a sirniar provision for oxygenated gasoline. V. FEDERAL PREEMPTION FOR REFORMULATED GASOUNE AND ANTIDUMPING A State may prescribe and enforce, for the purposes ef motor vehicle emission cort’oi. a control or prohibition respecting the used a ful or ftil addlws in a motor vehicle or motor vehicle engine it an applicable implementation plan for such S e under sectIon 110 ef * a.an Air Ad so provides. The AdmIn rator may approve such provision in en k çlemar Ion plan, or promiigsta an kinplemeilatlan plan containing such a provision, ordyit he ends the Stats control or prohb on is neesesary to achieve the national pr nsry or secondary an lsrd air quality etandeid which the plan inplements. 11w Adm1r rator may find U a S e coisef or prol*ition is r.cuu ry to achieve d etandard it no other measures ttwt wosid bing aboia tindy nmss1 arM or it ediur m ins det and are tachnicaity possible to inplemsnt, bt* are masoruble or inpracdcabls. The Mn*nltrator may make a ft kng d neciss y under this paragraph n P the plan the arsa does not cor in an approved demonstration d timely attainmurt ------- c 78 10 S?4jr 1:) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 % ffiØ c C’ OFFICE OF GENERAL COUNSEL December 16, 1991 NOTE SUBJECT: Section 211(m) SIP Revisions’ Potential Requirement that Gasoline Sold or Dispensed Outside the State’s Borders be Oxygenated FROM: Jonathan Martel, Attorney •- Air and Radiation Division TO: Nancy Ketcham-Colwill, Assistant General Counsel Air and Radiation Division Issue Presented May States’ SIP revisions establishing oxygenated gasoline programs under § 211(m) constitutionally require that gasoline sold or dispensed outside its bordei s be oxygenated? Statutory Provision Clean Air Act (“CM”) § 211(m) (2 provides, in pertinent part: (2) Oxygenated Gasoline in CO Nonattainment Areas.-— Each plan revision under this subsection shall contain provisions to require that any gasoline sold, or dispensed, to the ultimate consumer in the carbon monoxide nonattainment area or sold or dispensed directly or indirectly by fuel refiners or marketers to persons who sell or dispense to ultimate consumers, in the larger of—— - (A) the Consolidated Metropolitan Statistical Area (CMSA) in which the area is located, or (B) if the area is not located in a CMSA the Metropolitan Statistical Area in which. the area is located, be blended, during the portion of the year in which the area is prone to high ambient concentrations of carbon Pria’ed on Recycled Paper ------- 2 monoxide to contain not less than 2.7 percent oxygen by weight (subject to a testing tolerance established by the Administrator). Background Section 211(m) (1) requires that States with carbon monoxide (“CO”) nonattainment areas having design values of 9.5 parts per million (“ppm”) or above submit a State Implementation Plan (“SIP”) revision establishing an oxygenated gasoline program.’ Section 211(m) (2) requires that states establish oxygenated gasoline programs regulating conduct in the MSA/CMSA. The Bureau of the Census establishes an MSA or MSA for United States cities which geographically defines the city’s metropolitan area. 2 For eight cities currently identified as subject to the § 211(m) requirements 3 ( “covered areas”), the MSA/ MSA contains portions of more than one State. Further, for five of these covered areas, the portions of one or more of the States are not actually CAA S 211(m) (1) (A) provides, in pertinent part: Each State in which there is located all or part of an area which is designated under title I as a nonattainment area for carbon monoxide and which has a carbon monoxide design value of 9.5 parts per million (ppm) or above ... shall submit to the Administrator a State implementation plan revision under section 110 of part D of title I for such area which shall contain the provisions specified under this subsection regarding oxygenated gasoline. 2 gg “Revised Standards for Defining Metropolitan Areas in the 1990s,” 55 Fed. Reg . 12154 (March 30, 1990). See Draft Supplemental Notice of Proposed Guidance on Establishment of Control Periods Under Section 211(m) of the Clean Air Act as Amended at 19 (October 29, 1991). These multistate covered areas include: 1. Boston-Lawrence-Salem, MA—NH CMSA .2. New York-Northern New Jersey-Long Island, NY-NJ CMSA 3. Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD CMSA 4. Portland-Vancouver, OR-WACMSA - 5. Duluth, MN-WI MSA 6. Memphis, TN-AR-MS MSA 7. Minneapolis-St. Paul, MN—We MSA 8. Washington, DC-MD-VA MSA ------- 3 designated under title las in Co nonattainment. 4 On its face, § 211(m) (2) appears to require that each SIP revision shall regulate conduct in the larger of the CMSA or MSA, and no exception is explicitly provided for portions of that geographical area that are outside the State’s borders. The current draft of the Supplemental Notice of Proposed Guidance questions, in light of constitutional issues raised, whether Congress intended States to establish oxygenated gasoline programs that require gasoline sold or dispensed outside its borders to be oxygenated, and requests comment on this issue. Yet, even if Congress did not anticipate the jurisdictional problems associated with multistate covered areas, Congress l4kely did intend that the oxygenated gasoline programs be applicable in the entire MSA/CMSA. In addition, S 211(m) (1) quite clearly does not require States without a nonattainment area having a design value of 9.5 ppm or greater to submit SIP revisions establishing oxygenated gasoline programs. Thus, the basis for including attainment portions of the MSA/CMSA across State borders from the nonattaininent portions remains in question. At least in the case of the Philadelphia CMSA, the Office of Mobile Sources (“OMS”) is concerned that omitting attainment portions of the CMSA in Delaware might undercut the program’s effectiveness in addressing the nonattainment problem in Pennsylvania. In addition, the Memphis and Shelby County Health Department has submitted comments raising this concern (for the Memphis, Tennessee MSA), as’a significant new policy issue on the Final Rule Designating Areas for Air Quality Planning purposes. 5 In that comment, the Department notes that neither Mississippi nor Arkansas contain nonattainment areas that would require oxygenated gasoline programs and that those parts of the Memphis MSA in Mississippi and Arkansas would therefore be omitted from the program. The comment expresses concern that “border hopping’ for gasoline purchase” will undermine the Memphis Draft Implementation Guidelines at 6 (November 19, 1991). These cities are listed below, with the states containing the portions of the MSA/CMSA which are in attainment provided in parentheses: 1. Boston, Massachusetts (New Hampshire) 2. Philadelphia, Pennsylvania (Delaware, Maryland) 3. Memphis, Tennessee (Arkansas, Mississippi) 4. Minneapolis, Minnesota (Wisconsin) - 5. Duluth, Minnesota (Wisconsin) Letter from J. Carter S. Gray, Technical Manager, Pollution Control Section, Memphis/Shelby County Health Department, to Air Docket No. A-90-42 (December 5, 1991). ------- 4 program’s effectiveness: The comment requests that the Agency - determine whether the portions of Arkansas and Mississippi in the Memphis MSA will be required to participate in the oxygenated gasoline program under the currently proposed desigi ation and, if not, that the Agency consider expanding the boundaries of the Co nonattainment area to include at least some portion of these other States. OHS is considering promulgating a federal rule under authority of CAA § 211(c) establishing an oxygenated gasoline program applicable in those attainment portions of MSA/CMSAs coveredunder § 211(m). This approach appears to practically resolve this problem, ensuring coverage for the entire MSA/CMSA while not implementing a reading of the statute that is constitutionally questionable. Nevertheless, as the requirement that States’ SIP revisions regulate conduct in the entire MSA/CMSA arguably appears mandatory in § 211(m) (2), the Agency must justify any decision not to implement that requirement. Summary and Conclusions It is not definitively clear whether application of Clean Air Act § 211(m) (2) in multistate covered areas —— requiring one State to directly regulated gasoline commerce outside the State’s borders -— is constitutionally infirm. Yet, principles of federal and State sovereignty reflected in interstate pollution cases, Commerce Clause cases, and Non-delegation Doctrine cases suggest that a constitutional challenge to such an application of this provision might very well succeed. - An alternative approach -- interpreting this provision applied to require that States only directly regulate conduct within their borders -- may be preferable for a number of reasons. First , the structure of the Clean Air Act suggests that, despite the specific and clear language of § 211(m) (2), Congress did not anticipate or intend that States would directly control gasoline outside their borders. Second , the general rulemaking authority of § 211(c) offers an alternative mechanism for the Agency to “fill the gap” left through this interpretation, thus avoiding a constitutionally, questionable approach. Third , if the Agency requires for SIP approval that States directly regulate conduct in other States under § 211(m) (2), constitutional challenges would be likely. Even if that approach would ultimately prevail under the Constitution, the Agency’s litigation risk in adopting the S 211(c) approach would be lower. States, environmental groups, and industry would have a lower chance of success in a suit seeking to force EPA to apply the consitutionally questionable reading of § 211(m) (2) as a nondiscretionary obligation of the States to regulate conduct outside their borders, and would have less to gain from success in such a lawsuit. The Agency could even indicate, in the § 211(c) rule, that the States would be obligated to establish the ------- 5 extraterritorial § 211(m) (2) program in such location and at suc h time that a court finds the scheme mandatory and constitutional. Discussion The text of § 211(m) (2) on its face unambiguously mandates that SIP revisions require that gasoline “sold or dispensed directly or indirectly by fue . refiners or marketers to persons who sell or dispense to ultimate consumers” in the entire MSA/CMSA be blended to contain oxygen. However, implementation of this provision, as applied to a multistate MSA/CMSA consisting of attainment portions in separate states from nonattainment portions, raises serious constitutional difficulties. The statutory structure indicates that Congress did not anticipate the problem at issue here -- that attainment portions of the MSA/CMSA may be located in contiguous States -— and made no provision in § 211(m) to address it. 6 Rather, that structure arguably indicates that Congress intended a State’s SIP revisions to apply within the State. Yet, the plain language of § 211(m) (2) indicates that Congress intended the oxygenated gasoline programs to extend to the entire MSA/CMSA. Promulgation of a federal rule under authority of § 211(c) would reconcile these conflicting indications of Congressional intent, ensuring that entire MSA/CNSA5 are subject to the oxygenated gasoline requirements and obviating the need for state regulation of conduct wholly outside its borders. First, however, the Agency must justify any decision not to implement the § 211(m) (2) facial mandate that the SIP revisions require gasoline sold or dispensed by fuel refiners or marketers in the entire MSA/CMSA to be oxygenated. There are two potential justifications for this approach: First , the Agency could argue that § 211(m) (2) applied to multistate MSA/CMSA5 is ambiguous, and that, particularly in light of constitutional concerns, the provision should reasonably be interpreted to require only that States establish programs for application within their borders, even if a gap in coverage results. Under this interpretation, the Agency may look to another statutory provision to fill the resulting gap rather than woodenly apply the facial statutory language in a context where Congress arguably did not, or would not (if-it considered the 6 - Also, even for multistate covered areas in which each • state’s portion contains a nonattaInment area, § 211(m) (2) appears to require that each State’s SIP revision regulate conduct in the entire MSA/CMSA, resulting in overlapping jurisdiction. While this scheme would not leave gaps in coverage that might threaten to undermine the program, itwould require that inconsistencies in the overlapping regulations be avoided, either through the SIP approval process or otherwise. ------- 6 issue), intend it to do- so. Second , the Agency could argue that application of the S 211(m) (2) mechanism in the context of multistate MSA/CMSAs, while unambiguous, would be unconstitutional, and that implementation is therefore not required. Nevertheless, the Agency might argue that it may utilize its general authority under § 211(c) to accomplish Congress’s goal of requiring oxygenated gasoline throughout each covered MSA/CMSA. I..Interpreting 211(m (1) (A) to be Ambiquous as Applied Section 211(m) (1) (A) clearly specifies that the States are to establish the required oxygenated gasoline programs through SIP revisions “under section 110 and part D of title I for such area....” It is virtually beyond peradventure under the clear terms of § 211(m) (1) (A) that States in which attainment portions of a covered area are located are not obligated to submit SIP revisions establishing oxygenated gasoline programs. Those portions of the MSA/CMSA are not themselves designated under title I as Co nonattainment areas, and certainly do not have Co design values at or above 9.5 ppm. Had Congress consciously intended to ensure coverage for the entire MSA/CMSA in the specific context of multistate covered areas, Congress could easily have required that all States containing portiçns of a covered MSA/CMSA establish the program, rather than only those States with CO nonattainment areas having a design value at or above 9.5 ppm. It is unlikely that Congress, if it considered the multistate MSA/CMSA problem, would have opted instead to require one state to establish a program for the entire MSA/CMSA including portions of other states. The absence of any refe:ence in the legislative history to this serious problem is further evidence that Congress did not consider it. Even though .S 211(m) is more specific than the title I, S 110 SIP provisions,. Congress’s approach to multistate pollution problems in title I, § 110 arguabl j is relevant to interpreting how § 211(m) should be applied in the case of multistate MSA/CMSAs. 7 The SIP provisions of title I indicate that Congress understood a State’s SIP to apply only within the State’s borders. Section 110(a) (1) clearly specifies that States are to adopt and submit SIPs “which provide(] for implementation, maintenance, and enforcement of (a NAAQS] ... within such State.” (Emphasis supplied.) A further indication of this See Kelly v. Robinson , 479 U.S.. 36, 43 (1986) (“ [ T]he ‘starting point in every case involving construction of a statute is the language itself,’ (but] ‘in expounding a statute, we must not be guided by a single sentence or member Of a sentence, but look to the provisions of the whole law, and to its object and policy.”) (citations omitted). ------- 7 understanding is that § 110(2) (D) separately addresses issues of interstate air pollution. The approach taken in § 110(2) (D) is to require each State to adopt provisions in their SIPS designed to avoid contribution to other States’ nonattaininent or interference with their control measures. 8 S Section 110(2)(D) requires that each SIP: CD) contain adequate provisions-— Ci) prohibiting, consistent with the provisions of this title, any source or other type of emissions activity within the State from emitting any air pollutant in amounts -. which will-— (I) contribute significantly to nonattainment in,or interfere with maintenance by, any other State with respectto any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C to prevent significant deterioration of air quality or to protect visibility, (ii) insuring compliance with the applicable requirements of sections 126 and 115 (relating to interstate and international pollution abatement). The Agency might also consider applying § 110(a) (2) (D) (i) (I) to require that States containing attainment portions of a § 211(m) (1) (A) covered area establish oxygenated gasoline programs. This, however, would require that the Agency find that the attainment portions of the MSA/CMSA “contribute significantly to nonattainment” f or Co in the contiguous state. The Agency might argue that the inclusion of the entire MSA/CMSA under § 211(m) (2) establishes a legislative presumption that the certain dispensation of gasoline in that entire area contributes significantly to the CO problem. in the nonattainment area. - Yet, under title I, § 107(d) (1) (A), areas which contribute to ambient air quality that does not meet the Co NAAQS should be designated as nonattainment for CO. Thus, Agency action based on a finding that attainment portions of the MSA/CMSA contribute significantly to nonattainment in the contiguous State arguably would conflict with the designation of those portions of the MSA/CMSA as ------- 8 Moreover, Congress inicuded substantial provisions in the - Clean Air Act to create a mechanism for addressing interstate pollution problems. Section 176A provides authority to establish “interstate transport commissions” comprised of Agency and States’ representatives to collectively assess the degree of interstate pollution transport, assess strategies f or mitigating the problem, and make recommendations to the Agency. Section 176(A)(c) provides a mechanism for the commission to force problem States to take action. Section 184 establishes an interstate transport region for ozone along the Eastern Seaboard by operation of law, and specifies additional control measures for included States. Section 106 authorizes the Administrator to pay the costs for 2 years of interstate transport commissions and to make grants to pay up to three-fifths of implementation program costs. Section 108(e) provides that, for an air quality control region in a State which the Administrator finds may affect air pollution concentrations in another State, the State nay redesignate the boundaries of the region within the State only with EPA approval and the consent of all the significantly affected States. These extensive provisions reflect a delicate approach to interstate air pollution issues and suggest it is highly unlikely that Congress intended in § 211(m) that one State simply and directly regulate conduct in neighboring States to preserve the integrity of its own oxygenated gasoline programs. 9 Finally, the Agency might argue that, because the facial meaning of § 211(m) (2) at least raises substantial constitutional questions in the multistate MSA/CMSAcontext (discussed below), the Agency should adopt an alternative interpretation to avoid the problem. Judge Cyr, in a dissenting opinion in the First Circuit, recently stated courts’ general approach to statutory interpretations where constitutional issues are raised: We are required to start with the well-settled theme that a court “will construe (a] statute to avoid (constitutional] problems unless such construction is Dlainly contrary to the intent of Conaress.” Edward J . attainment. One distinction between the oxygenated gasoline program and the interstate pollution problems addressed elsewhere in the Clean Air Act is that the CO problem at issue in § 211(m) does not generally result from migrating pollution. Rather, vehicles carrying gasoline purchased in a wide geographical area actually enter the CO nonattaininent area and emit the CO pollution directly into that area. It is unclear, however, why this - distinction would lead Congress. to adopt a radically different approach to the multistate nature of the problem in the § 211(m) context that it constistently adopted for multistate problems elsewhere in the Clean Air Act. ------- 9 De Bartolo Corp . v Florida Gulf Coast Building & Constr. Trades Council , 485 U.S. 568, 575 (1988) (emphasis added). Recognizing “that Congress, like (the judiciary], is bound by and swears an oath to uphold the Constitution(,] (t]he courts will ... not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.” . Of course, the corollary “is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” . quoting Hooper v. California , 155 U..S. 648, 657 (1895) (emphasis added). Reardon V. United States , Slip. Op. No. 90-1319 at 37 (1st Cir., O tober 29, 1991) (Cyr, J., dissenting). Arguably, for the same reasons, the Agency, too, should adopt any reasonable alternative interpretation of the statute to avoid constitutional problems. II. The Constitutionality of the Facial Reading The text of § 211(m) (2) on its face unambiguously mandates that SIP revisions require gasoline “sold or dispensed directly or indirectly by fuel refiners or marketers to persons who sell or dispense to ultimate consumers” in the entire MSA/CMSA be blended to contain oxygen. As applied to a multistate MSA/CMSA, this provision on its face would require, for example, that Pennsylvania submit SIP revisions which require that gasoline sold or dispensed directly or indirectly by fuel refiners or marketers who sell or dispense to ultimate consumers in portions of Pennsylvania, Maryland, New Jersey, and Delaware must contain 2.7 percent oxygen by weight. Such exercise of jurisdiction by Pennsylvania to prescribe law for territory in neighboring States raises constitutional questions. A. Principles Suggesting Unconstitutionality 10 10 The general approach to evaluating the constitutionality of state laws under the Commerce Clause does not seem appropriate for resolving the issue here. In a very large number of cases, the Supreme Court has reviewed State statutes regulating conduct within a State’s borders under the “dormant Commerce Clause” to determine whether they impose an undue burden on interstate commerce. Where Congress has neither authorized not forbid the challenged State conduct, courts consider whether the challenged law discriminates against interstate -commerce, whether the law serves a legitimate (rather than protectionist) local purpose, Hughes v. Oklahoma , 441 U.S. 336 (1979); Philadelphia v. New Jersey , 437 U.S. 617, 624 (1978), and whether the burden on interstate commerce is incidental, Pike v. Bruce Church , 397 U.S. 137 (1970). Congress’s consent may validate an otherwise unconstitutional state regulation affecting ------- 10 The Supreme Court iecently addressed the constitutionality - under the Commerce Clause of State regulation that controls conduct in neighboring states in Healy V. Beer Institute, Inc. , 109 S. Ct. 2491 (1989). In that case, the Supreme Court held unconstitutional Connecticut’s beer price affirmation scheme on the grounds that the statute had the effect of controlling conduct outside its borders. 11 The Court reviewed its “established view that a state law that has the ‘practical effect’ of regulating commerce occurring wholly outside that State’s borders is invalid under the Commerce Clause.” Healy , 109 S. Ct. at 2497. The Healy Court distilled the principles guiding assessment of constitutionality of extraterritorial state statutes as follows: - The principles guiding this assessment ... reflect the Constitution’s special concern both with the maintenance of a national economic union unfettered by state-imposed limitations on interstate commerce 12 and with the autonomy of the individual States within their interstate commerce. See South-Central Development, Inc . v. Wunnicke , 467 U.S. 82, 87—88 (1984). “Dormant Commerce Clause” analysis seems inapplicable here, where Congress arguably not only consented but reauired state regulations that not only would unquestior ab1y affect interstate commerce, but would directly regulate conduct in other states —- constituting an exercise of power normally reserved to Congress under the Commerce Clause. In Healy , Connecticut required out—of—state beer shippers to affirm that their posted prices for beer sold to Connecticut wholesalers were no higher than the prices for beer sold in neighboring states at the time of posting, and made sale in Connecticut at a higher price unlawful. In one bordering State, Massachusetts, brewers are required to post beer prices on the first of the month which are to be effective on the first of the following month. Thus, Connecticut’s scheme would force brewers to set prices for Massachusetts that would be a ceiling for Connecticut prices in the following month. Also, volume and promotional discounts offered in neighboring states would limit prices that could be offered in Connecticut. Healv , 109 S. Ct. at 2499—250Q. 12 Footnote 12 in original: The entire Constitution was ‘framed upon the theory that the peoples of the. several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.’ Baldwin v. G.A.F. Seelig, Inc. , 294 U.S. 511 (1935). ------- 11 respective spheres:’ 3 Taken together, our cases concerning the extraterritorial effects of state economic regulation stand at a minimum for the following propositions: First, the “Commerce Clause precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State,” Edgar v. MITE corp. , 457 U.S. 624, 642—43 (plurality opinion).... Second, a statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is inva]i.d regardless of whether the statute’s extraterritorial reach was intended by the legislature. The critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State. Third, the practical effect of the statute must be evaluated not only. by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every State adopted similar legislation. Genera].ly speaking, the Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State. And, specifically, the Commerce Clause dictates that no State may force an out-of-state merchant to seek regulatory approval in one State before undertaking a transaction in another. Healy , 109 S. Ct. at 2499 (citations omitted) (one footnote omitted). Here, § 211(m) (2) requires that States regulate commerce taking place wholly outside the State’s borders, and the extraterritorial reach is fully recognized. Further, unless the SIP approval process is used to enforce uniformity in multistate 13 Footnote in original: -The plurality in Edgar v. MITE Corp. , (457 U.S. 624, 641 (1982) (plurality)] noted: “The limits on a State’s power to enact substantive legislation are similar to th limits on the jurisdiction of state courts. In either case, ‘any attempt “directly” to assert • extraterritoria]. jurisdiction over persons orproperty would offend sister States and exceed the inherent limits of the State’s power.” 457 U.S. at 643, quoting Shaffer v. Heitner , 433 U.S. at 197. ------- 12 covered areas, these State regulations could conflict with the - regimes established in neighboring States. g supra , note 6. Furthermore, § 211(m), as a State program, does not have pre- emptive effect, and States containing attainment portions of a covered area might establish gasoline requirements that would conflict with the extraterritorial regulations of the “nonattainment” State. Thus, application of § 211(m) (2) to multistate covered areas seems in conflict with all of the principles enunciated in Healy. B. Arguments Supporting Constitutionality There are at least two potential bases for distinguishing the SIP revisions at issue here from the statutes at issue in Healv and cases cited therein. First , those cases concern economic regulations, which more directly involve interstate commerce, whereas interstate commerce is only incidentally implicated in the environmental regulations here. Second , here, unlike any of the prior cases, Congress arguably mandated that the States adopt the extraterritorial controls at issue. To that extent, Congress arguably delegated limited power to regulate interstate commerce to the State whose air quality problem requires the regulation. 1. Economic v. Environmental Regulations The statutes at issue in Mealy and prior cases generally involved -economic regulations, such as price and business organization controls, 14 where the regulatory regime within the state was determined to interfere with commerce in other states. In these cases, States’ intent to achieve in-state economic goals necessitated application to out—of—state economic activity precisely because interstate commerce otherwise interfered with accomplishing the in—state commercial goals. Yet, a State’s concern directly with the impact of interstate commerce is in conflict with “the Constitution’s special concern with the maintenance of a national economic union unfettered by state— imposed limitations on interstate commerce.” Healy, supra. Mealy , and two cases primarily relied upon therein -- Brown-Forinan Distillers Corp . v. New York State Liquor Authority , 476 U.S. 573 (1986) and Baldwin v. G.A.F. Seelig, Inc. , 294 U.S. 511 (1935) -— involved protectionist price regulations. Edaar V. MITE. Corp. , 457 U.S. 624 (1982) (plurality opinion), also considered inHealy, involved the Illinios Business Takeover Act, which required that a tender offer for a- target company having a specified connection to Illinois be registered with the State, required that the offer not become effective for 20 days pending administrative review, and empowered the State to deny registration under certain conditions. See Healy , 109 S. Ct. at 2497 n.9. ------- 13 Here, however, the SIPs-are not designed to limit the impact of- interstate commerce on a State. Rather, the controls are intended to prevent the sale of more polluting gasoline outside the state which will be burned inside the State, thus undermining the State’s own effort to control pollution inside its borders. The need to control commerce outside its borders is only incidental to this goal. A nuisance case regarding interstate pollution between one State and citizens of another State filed under the Supreme Court’s original jurisdiction may support this distinction. In Ohio v. Wyandotte Chemicals Corp. , 401 U.S. 493 (1971), Ohio sought to invoke the Supreme Court’s original jurisdiction to abate a nuisance, alleging that defendants in Michigan and Canada were contaminating Lake Erie by dumping mercury into its tributaries outside of Ohio. The Court noted jurisdiction, citing a number of cases in which it had resolved claims that a nuisance in one State caused noxious consequences in another. 401 U.S. at 496. Nevertheless, the Court declined to exercise original jurisdiction on the grounds, first , that, as a prudential matter, it is ill-equipped to resolve the kind of complex factual dispute presented which routinely arise between States and other States or citizens of other States, 40]. U.S. at 497-98; and, second , because Ohio courts were competent to resolve the issue under State law. The Court in Ohio v. Wyandotte emphasized the competence of Ohio courts under Ohio law, despite the extraterritorial location of the offending conduct: The courts of Ohio, under modern principles of the scope of subject matter and in personam jurisdiction, have a claim as compelling as any that can be made out for this Court to exercise jurisdiction to adjudicate the instant controversy, and they would decide it under the same common law of nuisance upon which our determination would have to rest. In essence, the State has charged Dow Canada and Wyandotte with the commission of acts, albeit beyond Ohio’s territorial boundaries, that have produced and, it is said, continue to produce disastrous effects within Ohio’s own domain. While this Court, and doubtless Canadian courts, if called upon to assess the validity of any decree rendered against either Dow Canada or Wyandotte (Michigan], would be alert to ascertain whether the judgment rested upon an even-handed application of justice, it is unlikely that we would totall ! deny Ohio’s competence to act if the allegations made here are proved true. e, e.g. International Shoe Co . v. Washington , 326 U.S. 310 (1945). at 500. In a footnote, the Court made clear that no federal ------- 14 question jurisdiction existed under 28 U.S.C. § 1331, and the - case “would have to be adjudicated under state law.” Ohio v. Wyandotte Chemicals Corp. , 401 U.S. at 498 n.3. In this case, at least in the interstate pollution context, Ohio could apply its own law to conduct occurring wholly outside its borders in order to abate a nuisance. Likewise in the SIP context here, a State may arguably prohibit unoxygenated gasoline formulation and sale in a bordering State that was having a deleterious impact on the complaining State’s CO nonattainment area. There is reason, however, to question whether the Wyandotte case would apply to support the constitutionality of the § 211(m) (2) “facial” interpretation. Supreme Court cases between States have emphasized that state law does not control interstate pollution disputes, and instead have applied federal common law.’ 5 A year after Ohio v. Wyandotte , in Illinois v. Milwaukee , 406 U.S. 91 (1972), Illinois sought to invoke the Supreme Court’s original jurisdiction to enjoin political subdivisions of Wisconsin from allegedly polluting Lake Michigan. While the Court noted that the Federal Water Pollution Control Act, 33 U.S.C. § 1151 (“FWPCA”), makes pollution of interstate waters subject to “abatement” when it “endangers the heath and welfare of any persons,” the injunction remedy sought was outside the scope of remedies prescribed by Congress. . at 102—03. The Court refused original jurisdiction, (noting that political subdivisions are citizens of their respective States, at 97), and remanded the case to the district court to consider the extra-statutory injunction remedy the case under federal common ]. The Court held that pollution of interstate waters, in the absence of applicable federal statutory law, does create an action arising under federal common law, which is embraced within the “laws” of the United States within the meaning of 28 U.S.C. 1331(a). at 99. One additional distinction between Wyandotte and Healy may be that a court “adjudicatory” order enjoining a nuisance,. like any other tort case that may have its roots it, and has an impact on commerce outside a state’s borders, applies specifically on facts presented. In contrast, a “prescriptive” legislative control like that in Healv is of general applicability. The principles stated in Healv, supra , make specific reference to legislative, as opposed to judicial authority. While court exercise of adjudicatory jurisdiction based on effects wjthin the state’s borders may be legitimate despite extraterritorial effects on commerce, a state legislature’s exercise of prescriptive jurisdiction directly controlling extraterritorial conduct &rguably is not. Indeed, since innumerable tort claims against a business engaged in interstate commerce would have extraterritorial effects on such businesses, this distinction may be significant. See Restatement of Foreign Relations Law , § 401 sep . (1990). ------- 15 Yet, while the Illinois V. Milwaukee Court unequivocally applied federal common law, it arguably did not overrule the applicability of state law in Ohio v. Wyandotte , decided just one year earlier. In the Illinois opinion, the Court stated: “(T]he [ Federal Water Pollution Control] Act makes clear that it is federal, not state, law that in the end controls the pollution of interstate or navigable waters.” 406 U.s. at 102. The Court then added in a footnote, “The contrary indication in Ohio V. Wyandotte Chemicals Corp. , 401 U.S. 493, 498 n.3, was based on the preoccupation of that litigation with public nuisance under Ohio law, not the federal common law which we now hold is ample basis for federal, jurisdiction under 28 U.S.C. § 1331(a).” The I linois case seems to have recognized federal common law only as a source of law to vindicate rights created under federal statutes such as the FWPCA (leaving state law to residually to apply to interstate pollution disputes where no federal rights are established). g Banco Nacional de Cuba v. Sabbatino , 376 U.S. 427, 426 (1964) (“Principles formulated by federal judicial law have been thought by this Court to be necessary toprotect uniquely federal interests. Of course the federal interest guarded in all these cases is one the ultimate statement of which is derived from a federal statute.”); Textile Workers v. Lincoln Mills , 353 U.S. 448, 457 (1957) (recognizing federal common law as ‘the source of substantive law to be applied under the Labor Management Relations Act, § 301(a)); Hinderlider v. La Plata Co. , 304 U.s. 92, 110 (1938) (Brandeis, 3.) (applying federal common law to determine the effect of an interstate compact regulating water apportionment). The Clean Air Act would likely provide sufficient basis to apply federal common law to disputes arising between states regarding interstate air pollution. But here, not only might one argue that —— under Ohio v. Wyandotte —— states retain the ability to prohibit conduct outside their borders that causes pollution problems within the State, but Congress under a facial interpretation of Clean Air Act S 211(m) (2) mandated that States do so. Under this interpretation, Congress itself indicated that interstate air pollution does not raise federal concerns in the context of Clean Ai-r Act § 211(m) (2) requiring state law to be displaced by federal statutory or common law. Federal statutory law pre-empts any federal common law, Illinois v. Milwaukee , 406 U.S. at 91,and here that pre—einptive statutory law arguably refers back to state law. Thus, if Ohio.v. Wyandotte governs here, then a State’s SIP revisions conceivably may legitimately control gasoline formulation outside its-borders. But the applicability of Wyandotte to the clearly extrateiritorial prescriptive scheme at issue here is at least questionable. Even though the Court in Illinois v. Milwaukee did not overrule Wyandotte , and did not explicitly depart from the Hinderlider, Lincoln Mills, Sabbatino reliance on a statutory ------- 16 basis for federal common law, the Court nevertheless strongly suggested that constitutional principles of federalism and state sovereignty necessitate resort to a federal rule of decision to resolve interstate pollution disputes (a view possibly in conflict with the Wyandotte case). The Court stated the controlling principle as follows: As the field of federal common law has been given necessary expansion into matters of federal concern and relationship (where no applicable federal statute exists, as there does not here), the ecological rights of a State in the improper impairment of them from sources outside the State’s own territory, now would and should, we think, be held to be a matter having basis and standard in federal common law and so directly constituting a question arising under the laws of the United States. Illinois v. Milwaukee , 406 U.S. at 90 (quoting Texas v. Pankey , 441 F. 2d 236, 240). The Court emphasized: ttRjghts in interstate streams, like questions of boundaries, ‘have been recognized as presenting federal questions.’ Hinderlider V. La Plata Co. , 304 U.S. 92, 110. The question of apportionment of interstate waters is a question of ‘federal common law’ upon which state statutes or decisions are not conclusive.” Ibid-. Illinois v. Milwaukee , 406 U.S. at 105 (footnote omitted). Further, the Court noted: (I]t is not only the character of the parties that requires us to apply federal law ... where there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism, we have fashioned federal common law. Certainly these same demands .f or applying federal law are present in the pollution of a body of water such as Lake Michigan bounded, as it is, by four States. at 105 n.6. See also Milwaukee v. Illinois , 451 U.S. 304, 335 1981) (Blackaun, J., dissenting) (“Both before and after Erie ( R. Co . v. Tompkins , 304 U.S. 64 (1938)], the Court has fashioned federal law where the interstate nature of a controversy renders inappropriate the law of either State. When such disputes arise, it is clear under our federal system that laws of one State cannot impose upon the sovereign rights and interests of another.” (citations omitted)). Further, the Court in Illinois v. Milwaukee relied on earlier cases emphasizing federalism and State sovereignty principles in applying federal law without ------- 17 regard to a federal statutory basis.’ 6 2. Delegation of Legislative Authority The second basis for distinguishing the SIP revisions at issue here from the Healv case is that here Congress arguably mandated that the States adopt the extraterritorial controls. No case has been identified in which Congress has required that a State adopt regulatory controls applicable outside its borders. Through this lens, § 211(m) (2) may be viewed as delegation of Congress’s authority to regulate interstate commerce. As such, it is unclear whether congressional can validate extraterritorial state regulatory controls which would otherwise constitute an S 16 The Illinois v. Milwaukee Court relied on similar interstate nuisance cases decided on the basis of federal common law prior to Erie Railroad Co . v. Tompkins , 304 U.S. 64 (1938) (establishing state law as the general rule of decision in diversity cases in federal court). First, in Missouri v. Illinois , 200 U.S. 496 (1906), the Supreme Court entertained in its original jurisdiction Missouri’s suit in equity to enjoin Illinois’s discharge of sewage into the Mississippi River. Recognizing that Congress could address this matter under its power to regulate commerce, the Court noted that Congress had not forbidden the action of Illinois. .I . at 519. In such a case, the Court held, the Court must declare the principles governing the dispute, even if in conflict with legislation of one or both states. Id . While the Court decided that Missouri’s bill stated grounds for relief, it found that the facts did not support the case. Similarly, in Georgia v. Tennessee , 206 U.S. 230 (1907), Georgia filed a bill in equity in the Supreme Court to enjoin defendant copper companies from discharging sulfur dioxide gas from operations in Tennessee which migrated over Georgia territory, damaging Georgia forests and crops in the form of sulfuric acid or acid rain. Regarding such interstate pollution, the Court stated: When the states by their union made the forcible -abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the • alternative to force is a suit in this court.- at 238. Satisfied that on the facts Georgia had made out a case within the requirements of Missouri v. Illinois , the Court granted the injunction. ------- 18 unconstitutional exercise of state authority under the Commerce- Clause and exceed the enacting State’s inherent legislative authority. It is clear under the Non-delegation Doctrine that Congress cannot delegate its own legislative powers or, particularly, its exclusive power to regulate interstate commerce. In Wilkerson v. Rahrer , 140 U.S. 545, 560, (1891), the Supreme Court stated: By the first clause of section 10 of article 1 of the constitution, certain powers (including the power to regulate interstate commerce,] are enumerated which the states are forbidden to exercise in any event.... Congress cannot relieve from the positive restriction interposed. ... Nor can congress transfer legislative power to a state, nor sanction a state law in violation of the constitution.... It does not admit of argument that congress can neither delegate its own powers, nor enlarge those of a state. In Rahrer , the Court upheld the Wilson Bill, which provided that liquor brought into the state shall be subject to the state’s police power to the same extent as locally produced liquor. The Court had earlier, in the absence of Congressional action, invalidated -— as a regulation affecting interstate commerce —- an Iowa statute prohibiting the sale of intoxicating liquor Leisy v. Hardin , 135 U.S. 100 (1890). The Court in Rahrer held that the Congress’s incorporation of state law in the Wilson Bill simply manifested Congress’s power under the Commerce Clause to determine that free interstate commerce does not require uniformity in treatment of intoxicating liquors inside states’ borders. See Prudential Ins. Co . v. Beniamin , 328 U.S. 408, 425 (1946) (Commerce Clause is not a limitation upon power of Congress, but is grant of plenary authority, and “whenever Congress’ judgment has been uttered affirmatively to contradict the Court’s previously expressed view that specific action taken by the states in Congress’ silence was forbidden by the coiniuerce clause, this body has accommodated its previous judgment to Congress’ expressed approval.”). More recently, the Court considered a challenge to the constitutionality of the federal Sentencing Commission as unconstitutional delegation of legislative authority to promulgate sentencing guidelines for federal criminal offenses. Mistretta v. United States , — U.S. —, 109 S. Ct. 647 (1989). The Court, while recognizing that Congress may not delegate its legislative power, xplaine that Congress could constitutionally delegate authority federal agencies if the. general policy and boundaries of the d legated authority are sufficiently delineated. 109 S. Ct. at 655. The Court emphasized that since striking down excessive delegations in A.L.A. Schecter Poultry Core . v. United States , 295 U.S. 495 (1935) and Panama ------- 19 Refining Co . v. Ryan , 293 U.S. 3388 (1935) (cases in which Congress had failed to articulate any policy or standard to confine discretion of authorities exercising delegated power), broad delegations to agencies have been upheld without deviation. Mistretta , 109 S. Ct. at 655. The Court summarized, “In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.” . at 655 n.7 (citations omitted). It is unclear to what extent the analysis applicable to delegations to federal agencies also applies to delegations to states. See United States v. Sanchez—Lopez , 879 F.2d 541, 560 (9th Cir. 1989) (career offender provision of Sentencing Guidelines, which is triggered by federal and also state drug convictions, does not constitute an unconstitutional subdelegation of congressional authority to the various states); see also United States v. Sharpnack , 355 U.S. 286 (1958) (statute making subsequently enacted state criminal law applicable to federal enclave inside the state not unconstitutional delegation of legislative authority). Here, Congress’s articulation of policy and standards in Clean Air Act § 211(m) (2) is very specific and sufficient under these cases to support delegation of implementation authority to the Environmental Protection Agency. However, delegation of authority to a State to legislate control over interstate commerce may be constitutionally deficient anyway. Congressional delegation of such power may not supersede the restriction contained in the second principle enunciated in Healy, supra -— “a statute that directly controls commerce occurrinq wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority.” The constitutional principles of federalism and State sovereignty seem to cut across the Commerce Clause, Non-delegation, and interstate pollution/federal common law cases discussed above. In these areas, the Court particularly has emphasized the need for the federal government to resolve interstate disputes, and States’ surrender of power to address such matters independently. See Rahrer , 140 U.S. at 561 (“By the adoption of the constitution, the ability of the several states to act upon the matter solely in accordance with their own will was extinguished, and the legislative will of the general government substituted.”); Missouri v. Illinois , 200 U.S. at 520—21 (“It may be imagined that a nuisance might be created by a State upon a navigable river like the Danube, which would amount to a ôasus belli for a State lower down, unless removed. If such a nuisance were created by a State upon the Mississippi the controversy would be resolved by the more peaceful means of a suit in this court.”). If state control of commerce dutside its borders would exceed its sovereign legislative authority, and would interfere ------- 20 with the exercise of other state’s sovereign authority, arguably Congress may not delegate its own authority over interstate commerce to validate such action. In United States v. Mazurie , 419 U.S. 544 (1975), the Court considered a challenge to Congress’s delegation to an Indian Tribal Council of authority to regulate distribution of alcoholic beverages on an Indian Reservation, including land not held by Indians. Even though non-Indians on non-Indian—held land would be excluded from participation in the governmental process, the Court noted: This Court has recognized limits on the authority of Congress to delegate its legislative power. Those limits are, however, less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter. Mazurie , 419 U.S. at 556-57 (citations omitted). Because Indian tribes “are unique aggregations possessing attributes of sovereignty over both their members and their territory,” .j . at 557, the Court held that the delegation was proper. See also Nance v. , 645 F.2d 701, 714—15 (1981) (EPA’s approval under Clean Air Act of Indian tribe’s redesignation of its reservation from Class II to Class I air quality standards was not unconstitutional delegation of authority). While the Indian cases concerned entities which possess independent authority over the subject matter, it is reasonably clear from Healy that states possess no independent authority over commerce in neighboring states. Thus, the limits on delegation of Congressional authority would be more stringent in this context. The Mazurie case does not alone indicate that delegation of narrowly defined authority to regulate interstate commerce in § 211(m) (2) would be unconstitutional, but taken together with the federalism and State sovereignty principles enunciated in this and other cases, indicates the constitutionality of such a scheme would be at least highly questionable. ------- 21 Disk: Martel—Bi & LAN: Oxy.11:December 16, 1991: FINAL ------- Office of Air and Radiation Oxygenated Gasoline Implementation Guidelines July 27, 1992 Field Operations and Support Division Office of Mobile Sources Washington, D.C. ------- TABLE OF CONTENTS BACKGROUND INFORMATION INTRODUCTION 1 LEGISLATIVE REQUIREMENTS 2 SIP DUE DATE 3 REGULATORY OPTIONS AND OXYGEN CREDIT AVERAGING 6 DISCUSSION OF WAIVERS 7 EMISSION REDUCTIONS AND COST-EFFECTIVENESS OF OXYGENATED GASOLINE CARBON MONOXIDE EMISSIONS 10 TECHNOLOGY-SPECIFIC EFFECTS OF FUEL OXYGEN CONTENT ON CO EMISSIONS 10 ADAPTIVE LEARNING TECHNOLOGY 11 EFFECT OF OXYGEN ON FLEET CO EMISSIONS THROUGH TIME 12 IMPACT OF FUEL OXYGEN ON AMBIENT CO AIR QUALITY 12 COST-EFFECTIVENESS OF OXYGEN AS A CO REDUCTION STRATEGY 13 IMPLEMENTATION GUIDELINES GUIDANCE FOR STATE IMPLEMENTATION 14 REQUIREMENTS FOR REGULATED PARTIES 15 1. Registration 15 2. Recordkeeping 16 3. Transfer documents 16 4. Reports 17 5. Attestation engagements 17 REQUIREMENTS FOR STATE OFFICIALS - ADMINISTRATIVE 17 1. Registration applications 17 2. Compliance reports 18 3. Attestation reports 18 REQUIREMENTS FOR STATE OFFICIALS - FIELD INSPECTIONS 18 1. Retail/wholesale purchaser-consumer facility inspections 19 2. CAR and blender CAR facility inspections 20 3. Penalty Policy 21 OTHER STATE RESPONSIBILITIES 22 1. Laboratory Testng 22 2. Test methods 23 3. Availability of Clear Gasoline 24 4. Tritning 24 5. Public Outreach 25 RESOURCE ESTIMATES FOR STATE IMPLEMENTATION 26 1. Pbnning stage 26 2. Implementation Stage 27 ------- BACKGROUND INFORMATION INTRODUCTION Motor vehides ai’e significant contributors of carbon monoxide (CO) emissions. An important measure toward reducing these emissions is the use of cleaner-burning oxygenated gasoline. Extra oxygen enhances fuel combustion, which tends to be less efficient in cold weather. The oxygen also helps to offset fuel-rich operating conditions, particularly during vehide starting, which are more prevalent in the winter. A gasoline blend co& ming 2.7 percent oxygen, by weight, will result in approximately a 15-3)96 reduction in CO emkcinnc Oxygenated gasoline programs are a cost-effective means of reducing CO pollution. There arc currently local oxygenated gasoline programs in seven US. dtie > EPA strongly recommends that states adopt oxygen credit averaging programs rather than per-gallon 2.7 weight percent oxygen content programs. Averaging programs allow for the creation of valuable credits for gasoline cont nn more than 2.7% oxygen by- weight, wfiich may thee be used to offset the use of gasoline contnining lesser amounts of oxygen. The trading of these oxygen credits will allow added flexibility and efficiency in the marketplace which should rcsu in c savings to Tdfiners and ultimately consumers. Within EPA, the Field Operations and Support Division (FOSD) of the Office of Mobile Sources is responsible for the winter oxygenated gasoline programs and these guidehne& FOSD is available to assist state and local agencies in implementing these programs. FOSD will also be responsible for auditing the state and local programs once in operation. Al M2n lto, the Section Chief for the Regional/State/Local Coordination Section, is the project manager for this program. Within this Section, the duties are divided among the staff by Regions. Paul Ar ropoulos works with Regions I, VII and IX; Michael Ball works with Regions II, IV and VIII; Anne-Marie Cooncy works with Region III; and Meredith G. Miller works with Regions V, VI and X. All may be reached at (202) 233-9050. FOSD will be working through the relevant EPA regional offices to support the effective and timely implementation of these programs. ------- This document provides EPA’s guidance to states regarding implementation oversight and enforcement of oxygenated gasoline programs. This guidance is a general statement of policy. It does no establish a binding norm and is not finally determinative of the issues addressed. Agency decisions in any particular case will be made applying the law, applicable regulations and guidelines on the basis of specific facts and actual action. LEGISLATIVE REQUIREMENTS Section 211(m) of the Clean Air Act as amended by the Clean Air Act Amendments of 1990 (the Act) requires states with CO nonattainrncnt areas having design values of 93 parts per million or more based on 1988 and 1989 data to submit a revision to their State Implementation Plans (SIPS) which establish wintertime oxygenated gasoline programs ’ These programs are to beg*n no later than November 1, 1992. The oxygenated gasoline programs must require gasoline in the specified control areas to contain not less than 2.7% oxygen by weight. Where averaging programs are adoNed, gasoline cont hing oxygen above 2.7% by weight may offset gasoline with an oxygen content below 2.7% and no gallon of gasoline should contain less than 2.0% oxygen by weight. (This minimum will reduce the variability in oxygen contents and distinguish gasoline intended for use in an averaging program from clear, nonoxygcnated gasoline.) The minimum 2.7% standard shall apply during chat portion of the year in which the areas are prone to high ambient concentrations of CO (the ‘control period.’) The Length of these control periods is to be established by the EPA Administrator and shall not be less than four months in length. 2 At a state’s request with respect to a CO nonattainment area, EPA may reduce the control period if a state can demonstrate, based 1 In the July 9 Federal Renister notices of proposed guidelines dealing with oxygenated gasoline programs, EPA indicated that Steubenville, OH and Winnebago, WI would be required to have oxygenated gasoline programs. As explained in the February 5 Federal Register supplemental notices of proposed guidelines however, since &ese two areas have not been hccified as carbon monmide nonattainment areas, they cannot be required to implement programs under section 211(m). 57 FR 4408 (February 5, 1992). 2 will issue separate guidance establishing control periods for each area required to have an oxygenated gasoline program. A Supplemental Notice of Proposed Guidance on control periods has been issued. 57 FR 4408 (February 5, 1992). 2 ------- upon meteorological conditions, that a reduced period will assure that there will be no CO exceedances outside of such reduced period. The requirements of the oxygenated gasoline program shall apply to all gasoline sold or dispensed in the larger of the Consolidated Metropolitan Statistical Area (CMSA) or Metropolitan Statistical Area (MSA) in which the nonattainment area is located. For nonattainnient areas not located in a CMSA or MSA, the control area is the nonattainment area. The requirements of the program shall apply to every county or partial county which is located in the CMSA, MSA, or nonaitainment areas. SIP DUE DATE For any area that has a CO design value of 9.5 parts per million or greaser for any two year period er198,theActrequiresthatarcvisiontothcS lPshallbesubmittcdwithinl8monxhsaftersuchtwo year period. The Act, however, does not specify the due date for the required SIP revisions for the areas which must implement an oxygenated gasoline program bcg!nning in 1992. EPA believes it is reasonable to require that these SIP revisions be submitted by November 15, 1992, the date other CO SIP revisions are due. According to section 211(m), SIP revisions muss be submitted by each state in which there is located allorpartofanarcawbich i sdcsignatcdundcrTislc lasacarbonmonondenonanainmentarcawitba design value of 93 parts per million or more based on 1988 and 1989 data. 3 Under the Supplemental Notice of Proposed Guidance on Establishment of Control Periods, 4 these areas indude: 1. Boston-Lawrence-Salem, MA-NH CMSA 2. Hartford-New Britain-Middletown, C I CMSA 3. New York-Northern New Jersey-Long Island, NY-NJ-Cl CMSA 4’ Syracuse, NY MSA 5. Baltimore, MD MSA sunra . note 2, at 4409. 57 FR 4408 (February 5, 1992). 3 ------- 6. Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD CMSA 7. Washington, DC-MD-VA MSA 8. Greensboro-Winston-Salem-High Point, NC MSA 9. Memphis, TN-AR-MS MSA 10. Raleigh-Durham, NC MSA 11. Duluth, MN-WI MSA 12. Cleveland-Akron-Lorain, OH CMSA 13. Minneapolis-SL Paul, MN-WI MSA 14. Albuquerque, NM MSA 15. El Paso, TX MSA 16. Colorado Springs, CO MSA 17. Denver-Boulder, CO CMSA 18. Fort Collins-Loveland, CO MSA 19. Missoula, MT 20. Provo-Orem, UT MSA 21. Chico, CA MSA 22. Fresno, CA MSA 23. Las Vegas, NV MSA 24. Los Angeles-Anaheim-Riverside, CA CMSA 25. Modesto, CA MSA 26. Phoenix, AZ MSA 27. Reno, NV MSA 28. San Francisco-Oakland-San Jose, CA CMSA 29. Stockton, CA MSA 30. Anchorage, AK MSA 31. Fairbanks, AK 32. Grant’s Pass, OR 33. Klamath County, OR 34. Medford, OR MSA 35. Portland-Vancouver, OR-WA CMSA 36. Sacramento, CA MSA 37 San Diego CA MSA 38. Seattle-Tacoma, WA CMSA 39. Spokane, WA MSA The control areas as designated above were based upon 1980 census data, the only data available at the time of passage of the Clean Air Act Amendments. Shortly, the 1990 census data il1 be made available. There have been some early indications that there may be some MSA/CMSA boundary rh ang s due to population th2nges, particularly in parts of New England. The Agency recognizes that most state planners have already begun consideration of these oxygenated gasoline programs in light of the 1980 census list. The Agency encourages states to include new boundaiy areas, when they are available, in their 1992 oxygenated gasoline plans if possible, but will be fle,dble if this is not possible. The new boundaries should be adopted for the 1993 oxygenated gasoline program start date at the latest, in order to accurately reflect the 4 ------- demographics of each CMSA and MSA. A number of these, proposed control areas include more than one state. For some of these multi- state MSAS and CMSAs the portions of one or more of the states in the MSA or CMSA are not actually design t 4 as being in CO nonattainment. This situation is illustrated below. Proposed Profram Area MSA/CMSA States Nonattainment Attainment Boston Massachusetts New Hampshire Philadelphia Pennsylvania Delaware New Jersey Maryland New York . New York New Jersey Connecticut W hingtnn D.C. D.C. Maryland Virginia Memphis Tennessee Arkancac Mkc ’ccippi Minneapc(m Minnesota Wisconsin Duluth Minnesota Wisconsin Portland Oregon Wachington [ be Agency notes that section 211(m)(1) obligates (elach state in which there is located all or part of an area which is designated under Title I as a nonattainment area for carbon monoxzde...(toI submit to the Administrator a State implementation plan...for such area... Section 211(m)(2) provides further that the SIP revisions should require that the oxygenated gasoline program apply to fuel refiners or marketers in the larger of the CMSA or MSA in which the CO nonattanment area is located. However, the Agency does not believe that states containing only an attainment portion of the MSA or CMSA are obligated to submit SIP 5 ------- revisions. In the case of such states, the attainment portions of the MSA or CMSA located within their boundaries are not themselves designated under Title I as nonattainment areas for CO. A state such as New Hampshire, without any CO nonattainment areas, would therefore have no SIP to which revisions could be made. REGULATORY OPTIONS AND OXYGEN CREDIT AVERAGING EPA strongly recommends that states adopt an oxygenated gasoline averaging program. Akhougli not actually required to achieve the desired air quality results or to comply with the requirements of the Act, an averaging program has certain benefits which have been recognized by Congress. The principal advantage of this program design is that when compared to an oxygenated gasoline program requiring a minimum per- gallon 2.7% oxygen content, a program incorporating an oxygen averaging provision will prove to be less costly for implementation in 1992. This is due to the fact that averaging programs will allow the supply of oxygenates to be used in a flexible, and hence more efficient, manner. This flexibility will in turn lead to cost savings both for consumers and regulated parties. Therefore, EPA recommends that states adopt averaging programs for their oxygenated gasoline programs. 5 EPA is not suggesting that states mandate avera ng Instead, EPA recommends that states allow gasoline marketers the flexibility to opt to meet the 2.7% oxygen by weight requirement by choosing either a per-gallon or an averaging strategy. Even if an averaging program is authorized by a state, it is likely that some marketers will select the per-gallon option. EPA published a supplemental notice of proposed guidelines for credit programs on February 5, 1992 (57 FR 4413). 6 ------- DISCUSSION OF WAIVERS There are four types of waivers provided for under Section 211(m). Section 211(m)(3) provides for three waivers from the oxygenated gasoline requirements of section 2’ 1(m). Two of the aivcrs are available only at the initiation of states. These two state waivers would be based on: (1) a showing that the use of oxygenated gasoline would interfere with a national, state, or local air quality standard for a pollutant other than carbon monoxide (section 211(m)(3)(A)); or (2) a demonstration that mobile sources do not cignificantly contribute to the area’s carbon monoxide problem (section 211(m)(3)(B)). The third waiver provided for in section 211(m)(3)(C) is available at the initiation of any person’ and is based on a demonstration that there is an inadequate domestic supply of, or distribution capacity for, oxygenated gasoline. Section 211(m)(2) provides for another waiver which is available only at the initiation of a state. A state can request a reduced control period waiver if a state can make a showing, based on meteorological conditions, that a reduced control period will assure no exceedances of the National Ambient Air Quality Standard (NAAQS) outside of the reduced control period. 1. Reduced control period waiver Section 211(m)(2) requires the EPA Administrator to determine the portion of the year in which a carbon monoxide nonattainment area (with a design value of 9.5 parts per million or greater based on 1988 and 1989 data) is prone to high ambient concentrations of carbon monoxide. This portion of the year, or ‘control period,’ shall not be less than 4 months in length. The control period may be reduced to less than 4 months if a state can demonstrate that, based on meteorological conditions, a reduced control period will assure that there will be .no exceedances of the CO standards outside of such reduced control period. 7 ------- 2. State waiver based on interference with a National Ambient Air Quality Standard (NAAQS) other than carbon monoxide Section 211(m)(3)(A) governs waivers from the oxygenated gasoline requirements based on a State’s demonstration ‘to the satisfaction of the [ EPAJ Administrator’ that oxygenated gasoline would prevent or interfere with a NAAQS, or state or local ambient air quality standard, for an air pollutant other than carbon monoxide. The Admtnu trator shall, upon satisfactory demonstration, waive the Section 211(m) requirements in whole or in part. The demonstration should include a consideration of meteorological conditions, the time period in which peak carbon monoxide emissions occur, historical data on ambient air quality, and other relevant information. 3. Stationary source.based waiver Section 211(m)(3)(B) recognizes that an area’s carbon monoxide nonattainment may be due to causes other than mobile sources. Under section 211(m)(3)(B), a state may demonstrate to the satisfaction of the EPA Mminiqrator that mobile sources of carbon monoxide do not contribute sgnificantly to the carbon monoxide levels in an area. Upon such demonstration, the Administrator shall waive the oxygenated gasoline requirements of section 211(m)(2). 4. ‘Supply and distribution’ waivers Section 211(m)(3)(C) allows any person to petition the Adminktrator to ‘make a finding that there is, or is likely to be, inadequate domestic supply of, or distribution capacity for, oxygenated gasoline.’ EPA published proposed guidelines for section 211(m)(3)(C) waivers on the September 3, 1991,6 and a final Notice of Availability for the guidelines on April 17, 1992 These guidelines discuss information that EPA believes is necessary to consider supply shortages and/or distribution problems. 6 56 FR 43593 (September 3, 1991). 57 FR 13742 (April 17, 1992). 8 ------- The section 211(m)(3)(C) waiver, if granted, would result in an entire area being waived from the program. The Act expressly prohibits “partial delays or lesser waivers.’ The Act specifics that if a waiver is granted, the Administrator shall delay the effective date of the program for one year. EPA may not grant a waiver for a lesser period (e.g. for one month of the control period). Upon petition, the Administrator may extend a section 211(m)(3)(C) waiver for one additional year. EPA’s latest information indicates that there is adequate supply and distribution capacity for oxygenates for the 1992 control season. EPA therefore expects no supply and distribution waiver requests. EMISSION REDUCIIONS AND COST.EFFECIIVENESS OF OXYGENA1 D GASOLINE 1 This section is included in order to assist the states in developing their oxygenated gasoline implementation poliocs and SIP submfttals. The information contained here and in the June 3, 1991 EPA document titled “Emission Reductions and Cost Effectiveness of Oxygenated Gasoline” 2 may be used by the states in estimating the costs associated with these oxygenated gasoline programs. These attempts to illustrate the possible air quality effects of the oxygenated fuel program are not comprehensive guides to fvrw e air quality in the specific areas mentioned, since the ambient data are subject to climatic fluctuations, ____in traffic patterns, and other variables that cannot be reliably predictet Also, the impact of stationary sources will vary from area to area. 1 This section has been taken directly from an EPA document tided, “Emission Reductions and Cost Effectiveness of Oxygenated Gasoline,” dated June 3, 1991. This document was prepared in support of the oxygenated gasoline guidance development process. 2 This document may be found at the EPA Air Docket, 401 M Street, S.W., Room M-1500, W2 hingson, D.C. 20460. The Docket number is A-91-04, lI(A)4. 9 ------- CARBON MONOXIDE EMISSIONS The 1989 National Air Ouality and Emission Trends Reoort 3 indicates that mobile sources account for about two thirds of CO emissions, a figure that is only slightly down from its 1980 level of 70%. Aggregate emissions from stationary and area sources of CO have been fairly constant, de 1ining only slightly over the 1980-198 ‘eriod. See Figure 1. Two factors have had the greatest impact on mobile source CO emissions fleet turnover and vehi fe miles travelled (VMT). Over the last decade, fleet turnover has brought CO emissions down as old technology, higher-emitting vehicles have been replaced th newer technology, lower emitting ones. Even as they age and accumulate mileage, the newer technology vehicles emit less CO than the older ones did at similar stages in vehicle life. Counteracting new technology, however, VMT has increased for the nation as a whole as population increases and average per-capita mileage climbs. To this point, fleet turnover has outweighed VMT’s upward influence on CO emissions over the last decade, accounting for the dQwnwa,d trend in total emissions. The Agency’s mobile emissions model predicts that as the fleet conversion to newer technology is completed, fleet turnover will become more neutral with regard to emissions, and continued increases VMT may bring about a egate emissions increases. EPA expects the downward trend to continue until about 1999 when the light duty fleet will be comprised almost entirely of 3-way/closed loop vehides, a newer technology discussed below. The increase in VMT, previously masked in its effect by fleet turnover, will then bring about some increase in eivthuons. TECHNOLOGY-SPECIFIC EFFECrS OF FUEL OXYGEN CONTENT ON CO EMISSIONS Agency data on the impact of oxygenates on CO emissions have been collected as part of the Air Ouality and Emission Trends Report 1989 . February, 1991, U.S. Environmental Protection Agency, EPA -450/4-91.003, p.3-17. 10 ------- Agcnc s Emission Factors program. Analyses of those data have been reported in various technical reports 4 and incorporated into a modified version of the MOBILE4 emissions model These analyses distinguish three technology groupings and separately estimate the impact of oxygenates on CO emissions within each group. Those impacts are shown below for light-duty vehides: TABLE 1 Technology-SpecIfic Effects o.Emlss loiasofaFuelwlth3.5% Oqgen and Volatility Matched to Base Fud Vehide Effect of Blend Group on CO Emissions No Catalyst -22.9% Oxidation Catalyst -33.0% Closed Loop -202% Since current data offer no basis to reject the proposition that CO response is linear with percent oxygen, interpolation provides the reductions by technology type associated with 2.7% oxygen: -17.7% for pre- catalyst, -25.5% for oxidation catalyst, and -13.6% for 3-way catalyst/dosed loop technology. ADAPTIVE LEARNING TECHNOLOGY While one theory suggests that fuel oxygen content should have a lesser impact on CO emissions in vehides with the newer dosed loop systems (approximately post-l98 4 LDVs), current test data is to the contraly. Evaluated in EPA’s Technical Report of October 1988 , the CO impact of 3.7% oxygen was even “Derivation of Technology Specific Effects of the Use of Oxygenated Fuel Blends on Motor Vehicle Exhaust Fmkcions ”, October, 1988, Technical Report No. EPA-AA-TSS-PA-88-1. “Guidance on F ctimating Motor Vehicle Emission Reductions From the Use of Alternative Fuels and Fuels Blends”, January 29, 1988, Technical Report No. EPA-AA-TSS-PA-87-4. 5 Derived from Table 3-1 in “Guidance on Estimating Motor Vehicle Emission Reductions From the Use of Alternative Fuels and Fuel Blends”, January29, 1988, EPA Technical Report No. EPA-AA-TSS-PA .87-4, p.35. 11 ------- greater in the post. 1984 sample data than for other closed loop vehicles. EFFECT OF OXYGEN ON FLEET CO EMISSIONS THROUGH TIME The overall effect of oxygen on fleet CO emissions is presented in FIgure 2 for a loosely modeled mid-Atlantic scenario whose mthile source emissions of CO in 1992 represented about 76% of total CO and where the stationary and area source components arc assumed to remain constant in an absolute sense over the period of time modeled. 6 The CO emission level at 2.7% oxygen is 13% lower than the base case in 1992. By 1995 the difference is 12%, and by 3 )00 it is 10%. A west coast scenario should appear very cin ii v in program effect except that the local fleet is older on average and thus is perhaps more responsive to the oxygen leveL Since the west coast scenario was modeled after San Diego, the extent of stationary source involvement is lower and the proportional reductions in overall CO emissions attributable to oxygen are higher. The west coast scenario is presented in Figure 3. IMPACT OF FUEL OXYGEN ON AMBIENT CO AIR QUALITY In order to model the impact of the proposed program on ambient CO levels, a ‘rollback” modelling approach has been used whereby a percentage decrease in emissions from all sources (including the relatively constant stationary and area sources) is applied to actual ambient levels projected forward to the time period b ing analyzed here. The actual data for Philadelphia’s 1989 daily maximum overlapping 8-hour averages with correction for “double-counting of high hourly readings are shown in Figure 4. Figure 5 shows the same data adjusted for the changes in emission levels expected between 1989 and 1992. The overall height of each bar shows the level to be expected in 1992 without the oxygen program, while the lower segment (for the four months where there are two segments) shows the ambient level expected with 2.7% oxygen. Figures 6 e the mid-Adantic and West Coast scenarios discussed in this analysis arc based, respectively, on some data for Philadelphia and San Diego, this modeling work should not be regarded as a rigorous accounting of emissions inventories for either area. The extent of stationary source influence and various other items of information were taken from area-specific data, but national default information was used to predict VMT growth, and certain other features of the local situations were not modelled rigorously, since these analyses were intended only as illustrative. 12 ------- 6 and 7 examine the ambient air quality for 1995 and 2000. COST-EFFECTIVENESS OF OXYGEN AS A CO REDUCTION STRATEGY 7 Table 2 presents the cost-effectiveness calculations by year for a general mid-Atlantic scenario (based on stationary source contribution and VMT for Philadelp i as being more or less representative). A wvst coast scenario using San Diego as a general model is shown in Table 3. The per-gallon costs used in these tables are long-nm cost flgurcs It Lc likely that short-run costs in 1992 will be higher, and also likely that the cost numbers in the later years will fluctuate with shifts in oil and basic commodity prices. A c astant long-nm per-gallon price is med in thcsc tables to facilitate erAnun tion of the impact of fleet composition and VMT trends on cost-effectiveness. Since each year’s program costs and the consequent emission reductions occur together in time and vary in direct proportion to one-another, the cost- effectiveness numbers have not been discounted. information concerning the additional availability of oxygenates indicates that the cost effectiveness of oxygenates as a CO reduction strategy will be increased beyond the estimates provided in this document. 13 ------- IMPLEMENTATION GUIDELINES GUIDANCE FOR STATE IMPLEMENTATION These implementation guidelines should be used to augment other soon-to-be-issued guidance on credit avetaging and control periods and regula4ions on p%unp labeling. Successful implementation and compliance programs must be demonstrated by each state in meeting its obligations through its State Implementation Plan (SW) revisions submitted to the Agency under section 211(m) of the Act. EPA views the topics discussed below as important components of such programs. These recommendations are based, in pail, on the Agency’s prior experience with the enforcement of fuels rcgulations as weil as the evaluation of state oxygenated gasoline programs which are presently in place in seven US eihc It is the Agency’s intention to fully support the efforts of the states in developing and implementing these oxygenated gasoline programs. The Agency has developed standard materials for the use of the states including industzy audit forms and industry report forms and databases. The Agency also anticipates working with states to develop tr tining materials and public awareness packages. EPA believes that use of these standardized materials will bring a desirable level of consistency to the programs throughout the country. Enforcement issues The Agency views certain components as essential to an effective enforcement scheme for an oxygenated gasoline program. This section addresses these components. EPA is aware that effective enforcement may be more difficult in those program areas which contain more than one strte within the MSA or CMSA. The Agency will work through its Regional offices to encourage cooperative activities by the states in an attempt to coordinate the implementation of these multi- state programs. 14 ------- REQUIREMENTS FOR REGULATED PARTIES I. Registration AU parties in the gasoline distribution network who are either located in or who do business in a control area should be required to comply with the requirements of the oxygenated gasoline program if they plan to market gasoline in that control area. All parties which handle gasoline in bulk, meaning all terminal operators and owners, as well as all oxygenate blending facility operators and owners, should be required to register with the state. Each party should be required to inform the state of its intentions concerning the marketing of oxygenated gasoline. The above registration requirements should apply regardless of whether a state has chosen to implement an averaging program or not. Any party which wishes to participate in an averaging program for marketing oxygenated blends should apply to the state through this registration for permission to ad as a control area responsible pasty (CAR) or blender control area responsible party (blender CAR).’ Those who wish to ad as CARs and blender CARs, after state approval of the application, should be c gned CAR registration numbers, which authorize the parties to participate in the credit averaging program. A list of these CAR numbers should be given to each registered CAR. Any party which wishes to comply with the 2.7% oxygen by weight requirement on a per-gallon basis must also register. The difference between these two types of parties is that those who wish to ad as CARs and blender CAR.s, after state approval of the application, should be tccigiied CAR registration numbers, which authorize the parties to participate in the credit averaging program. However, parties complying with these guidelines by dispensing and offering for sale gasoline cont ’n’ng at least 2.7% oxygen by weight per gallon should not be -c.cigne d a registration number, thereby exduding them from participation in the averaging program. t As discussed in the proposed guidelines and supplemental proposed guidelines, CARs and blender CARs are the parties in the gasoline distribution network which are responsible for assuring that only oxygenated gasoline is sold into any control area which has adopted an averaging program. it is the CARs and blender CARs which are the credit-averaging parties. 15 ------- 2. Recordkeeping All parties in the gasoline distribution network who are located or who do business in a control area, and whose product is eventually sold into the control area for ultimate use, should be required to keep records concerning certain day-to-day activities. Under these guidelines, refiners and importers should be required to keep a copy of all the tests that are performed on batches of gasoline prior to shipment, as well as copies of the bills of lading or transfer documents for each batch. Carriers and distributors should be required to keep copies of the documents which accompany every batch of gasoline their employees handle. Terminal owners and operators and CARs and blender CARs (in an averaging program) should be required tokeeprecordsofboththcgasolinetheyreceivcfromupstreamparties asweUascopiesofallthctests performed and records created before the gasoline was transferred to a downstream party. 3. Transfer documents As proposed under EPA ’s guidelinea, all parties in the gasoline distribution network whose product is eventually sold in a control area for use in the oxygenated gasoline program must create records which accurately reflect certain properties of the product they are transferring. All refiners and importers must generate documents specifying whether or not each batch is oxygenated, the oxygen content of the gasoline by weight, and the oxygenate type and per.ent by volume. These documents must accompany every shipment which leaves the refinery or import facility. Terminal owners and oxygenate blenders, as well as CARs and blender CARs (in an averaging program), after they have altered the oxygen content of gasoline received from upstream, must either create new documents specifying oxygenate type and content, or add the pertinent information to a comprehensive bill of lading already accompanying the gasoline shipment. Either way, the information must accompany every shipment of gasoline which leaves the terminal or blending facility. These transfer documents must accompany all gasoline intended for sale in a control area, and copies of them should also be kept on file by the retailer or wholesale purchaser-consumer. 16 ------- 4. Reports Under EPA guidelines 1 when an averaging program is implemented, all CARs and blender CARs should be required to submit reports to the states detailing certain activities during the control period. Information should be induded specifying the following; the volumes of gasoline bought, sold and transferred; volumes and types of oxygenate bought, sold, and transferred; number of credits bought, sold or transferred; and a detailed demonstration of how credits were calculated. 5. Attestation engagements When an averaging program is implemented, each CAR and blender CAR should be held responsible for conducting one audit of its records as the dose of each control period, or every six months, whichever is shorter. A Certified Public Accountant should conduct the evaluation of the fadlit s accounting pradice and should verify in an attestation report whether or nct a facility has accurately represented its activities. REQUIREMENTS FOR STATE OFFICIALS - ADMINISTRATIVE Each state which implements an averaging program will need a certain number of admm-ctrative personnel to implement the oxygenated gasoline programs. Some of the work is clerical in nature - data entry and filing. The Agency recommends that the state keep all records required in one centralized location. With the aid of the databases being developed in conjunction with EPA, the same office should compile initial registrations, compliance reports, and attestation reports. 1. Registration applications Before the start of each control period, each state should receive applications for registration from all parties wishing to market oxygenated gasoline in a control area during a control period. This registration will define the regulated universe within any oxygenated gasoline control period. With the aid of the databases developed by EPA, these applications should be easily processed, with registration numbers 17 ------- generated automatically and data gored. 2. Compliance reports Each state should receive, at the close of every averaging period, compliance reports from all CARs and blender CARs which dispense fuel in a control area administered by tha stale. It will be the responsibility of each state to process these reports in order to determine compliance with the averaging provisions of the ox enatcd gasoline regulations. This may be done through the use of both reporting forms and databases developed by the EPA. The Agency envisions the use of simple arithmetic checks (to be sure that all the necessary calculations have been correctly done), and cross-checks between CARs (to be sure that if CAR X reports that it sold 6 credits to CAR Y, CAR Y reports the same transaction). If review of these simple reports uncovers a potential violation of the state rules and regulations peltaining to the oxygenated gasoline program, EPA expects that state enforcement personnel would follow up with a visit to the suspect facility, or request more detailed records. 3. Attestation reports In addition, each state should receive copies of the attestation report. State personnel should also review these reports and refer any discrepancies which inlicate potential violations of state rules and regulations to the proper enforcement personnel. REQU1REMEN FOR STATE OFFICIALS - FIELD INSPECTIONS Each state will be responsible for monitoring the compliance of the parties in the gasoline - distribution network with the oxygenated gasoline rules and rcgulations. A number of field inspectors should be employed to visit facilities which supply gasoline to the control area in order to determine program 4 compliance. Sampling should be conducted primarily at the terminaIs retail stations and wholesale purchaser-consumer facilities. Enforcement should also occur at the CAR and blender CAR facilities in those states which implement an averaging program. EPA suggests random checks of other parties in the 18 ------- gasoline distribution network as well. Inspections at all locations should entail both physical sampling of gasoline and record review. In states where averaging is an option, when visiting CARs, blender CAR facilities and parties downstream of them, inspectors should check for the 2.0% oxygen by weight minimum requfrement, verify that each batch of gasoline is properly docuàented with the appropriate information indicated on the transfer document, and see that each party is maint ning proper records concerning its activities. Upstream (refiners, distributors, etc.) from the CARs and blender CARs, inspectors should check gasoline batches to be sure that the accoznpan ing records accurately reflect the specifications of the gasoline in question. In areas which have implemented per-gallon programs, inspectors should check for the 2.7% oxygen by weight minifflum. 1. Retail/wholesale purchaser-consumer facility inspections In inspecting retailers and whoIrc Ie purchaser-consumers within a control area, the emphisis of the inspection should be on a physical sample of gasoline. EPA suggests that at least )% of all retail stations in a control area be inspected during each control period regardless of whether the program is per-gallon or aver ng The Department of Weights and Measures in Phoenix, AZ currently tests the gasoline at every retail station in its program area once every quarter. The more often facilities can be inspected, the better the program’s enforcement presence will be in the area. When visiting facilities, enforcement officers should pull adequate samples from each separate grade of gasoline offered, and a sample from each tank (where more than one tank of a certain grade is being dispensed). Each state should establish sampling procedures, 2 induding chain of custody procedures. 2 . appendix D of 40 CFR part 80 for sampling methodologies. 19 ------- One inspector should be able to take approximately 25 samples per day for analysis in the labs. This schedule should entail visits to approximately 6 facilities per day. EPA recommends that the schedule for inspections be somewhat random, so that the 20% of the retail and wholesale purchaser-consumer facilities visited in each control area can more reliably be taken to represent the entire control area, rather than localized portions thereof. After obt2ining the samples, enforcement officials should verify proper pump labeling, and briefly check the faduit s paperwork and recordkecping system to ensure that the proper information is being retained and is accessible. If any retail station is found to be in violation of any of the state rules and regulations, program officials should have the ability to issue stop sale notices and lock pumps or have the tanks pumped out if necessary. Program officials should report back to the retail stations if violations are found through laboratory analysis of the samples taken earlier. Again, program officials should have the authority to stop the sale of the illegal gasoline and lock pumps or have the tanks pumped out if necessary. 2. CAR and blender CAR facility inspections for averaging programs For averaging programs, inspections of the CAR and blender CAR facilities should entail record review and physical sampling. Again, 20% of the CAR and blender CAR facilities which serve a control area should be visited every control period. At the end of each control period, every CAR should be required to submit attestation engagement reports to the state. As the winter months progress, verification that the CARs and blender CARS are complying with the program as established by the state rules will be crucial. Physical testing for the minimum oxygen content combined with record review should be able to reveal whether or not proper credit accounting is occurring as shipments leave and enter the CAR facility. 20 ------- 3. Penalty Policy All states should establish appropriate penalty schedules for facilities violating the oxygenated gasoline requirements. These penalties may indude administrative, civil and criminal penalties that will deter or eliminate non-compliance with the requirements as well as enforcement actions such as stop sale orders and revocation or suspension of a facility’s license to operate. The penalty schedule should account for the severity of the violation, intent, frequency of violations, and other considerations. The penalties that are established should ensure recovery of any economic benefit associated with the violation, plus recoup an additional amount to deter potential violators who believe they may not get caught. The policy should also rccognze that penalty assessment should provide for fair and equitable treatment of the regulated community and for swift resolution of environmental problems. The penalty schedule should indude but need not be limited to: • Notices of Violations -Warnings - Cease and Desist Orders - Suspension of license or permit to operate - Revocation of license or permit to operate • Monetary fines - Prohibition of equipment operation until proper product is in place - Removal of violating product from facility Provisions for criminal penalties should also be considered as possible deterrence mefhanLcmc. If the penalties available to the state do not sufficiently deter violations and non-compliance continues, alternative penalties should be established. The state must assure compliance in order to continue to receive the SIP credits provided for by the program. In formulating a penalty policy, the nature of the potential violations must be considered within every state. The following are some examples of factors which should be considered: 21 ------- • The intentional nature of the violation • Whether the violator cooperated with the state - Whether a repeat violation is involved - The difference in required v. actual oxygenate levels OTHER STATE RESPONSIBILITIES 1. Laboratory Testing Based on the experience of the currently operating oxygenated gasoline programs, the Agency . believes that when possible, each state should attempt to minimine the time needed to analyze gasoline samples taken from the field. Although an independent contract lab could conceivably work with a state to streamline the sample transport and analysis structure, the Agency feels that the best way a state can do this is to establish its own independent laboratory facility for the testing of samples obtained by state enforcement personneL Although the capital investment involved in purt4i tchig the laboratory equipment will be high, state ownership should prove to be le& expensive in the long run. Some states currently running oxygenated gasoline programs have their own labs, while others do not. Clark County, Nevada sends its samples to independent labs for analysis, which often involves a 1-day delay between the time the samples are taken in the field and the time the enforcement officials receive the results of the gasoline analysis. On the other hand the Arizona Department of Weights and Measures has taken the initiative of setting up an independent state lab. Arizona owned one gas chromatograph before the program began, but with the start of the oxygenated fuels program in 1989 state officials purchased another, doubling the analysis capability of their laboratory. Samples pulled in the field each day can be analyzed overnight, allowing disciplinary action to take place, if necessary, by the afternoon of the following day. This quick turnaround frequently allows noncomplying product to be removed from the marketplace prior to consumption, averting potential air quality damage. EPA believes that the quick response allowed by the use of an on-site laboratory is invaluable in an effective enforcement scheme for oxygenated gasoline. 22 ------- It is estimated that the startup cost for establishing an in-house laboratory is approximately $125,000, which is primarily involves the cost of a gas chromatograph. With this cost amortized over the ten-year useful life of the equipment at an interest rate of 10%, the per-sample testing cost falls far below the $100.00 minimum estimated cost charged by independent laboratories which do contract worlc. 3 In addition to the cost, the Agency believes the only way to have an efficient enforcement presence in the regulated community is to have very quick turnaround on laboratory tests, making it possible to follow up with potential violators the very next day and have noncomplying gasoline removed from distribution. State laboratories facilitate this rapid turnaround. When program officials have to wait three or more days for the results from the analysis of field samples, violations are harder to identify and prosecute. 2. Test methods States should carefully consider the adequacy and accuracy of the methods allowed or required for testing product samples. While drafting the guidelines for the oxygenated gasoline programs, it has come to the Agency’s attention that the ASTM method currently used by most laboratories in the country does not presently have the capability to detect the presence of certain heavier oxygenates in gasoline, such as TAME. At this time ASTM is pb nnit gto extend the scope of its test to indude up to 15% MTBE by volume (2.7% oxygen by weight) and 17% TAME by volume. As an alternative to the ASTM method, the Agency has developed a single column, direct injection gas chromatographic procedure for quantifying the oxygenate content of gasoline. Unlike the current ASTM method, this method can be used to detect all types of o enates in gasoline. The Agency prefers this new EPA test over the ASTM test. The Agency anticipates it will be more accurate, easier to conduct, and less a more detailed discussion rcl2hng the state costs associated with oxygenated gasoline programs, please see the June 26, 1991 EPA document titled Administrative and Related Costs of the Oxygenated Gasoline Provisions. This document can be found in the EPA Air Docket, 401 M Street, S.W., Room M-L500. The Docket number is A-91 -04, II(A)2. 23 ------- expensive than the ASTM method. However, at this point in time industry is understandably apprehensive about adopting a reLatively new test. For these reasons, the EPA guidelines establish both testing methods for use in oxygenated gasoline testing. 4 This will allow the regulated parties to use equipment they may already possess, and a test method with which they are already familiar. Nevertheless, the Agency would like to strongly recommend use of the Ann Arbor method, especially if it is determined that the ASTM method has neither expanded its capabilities or improved its precision standards to match those of the EPA method. In addition to the approval of these two te5ting methods, EPA would like to establish a procedure whereby additional testing methods may be approved by the Agency. EPA recognizes that there are many potential tests for use in the detection of oxygenates in gasoline, and would like to encourage the development of even newer and more efficient methods. The Ann Arbor EPA lab has already begun evaluating some alternative laboratory methods, as well as some oxygenate screening devices which may be useful in the field. Therefore, the Agency shall work on creating a procedure for the evaluation and approval of other oxygenate tests. 3. Availability of Clear Gasoline EPA advises the states to monitor the availability of a variety of oxygenates and to take appropriate steps necessary to reasonably assure the availability of various oxygenates in the market. 4. Trpining Each state should be responsible for training not only their own personnel in the complexities of the oxygenated gasoline program needs, but also the personnel throughout the state responsible for complying with the rules and regulations. Workshops should be held for the benefit of persons in the gasoline 57 FR 4413, 4437 (February 5, 1992). 24 ------- distribution network who will be working with oxygenated gasoline. Topics to be covered should include handling of the product, teaching approved testing and sampling methods for use in quality assurance programs, handling customer complaints related to oxygenated gasoline, information for mechanics, developing effective filing systems for the records required by the regulations, and computing compliance through o edk aver ng Each state should make an effort to be sure that all parties in the gasoline distribution network serving its control areas are knowledgeable and cooperative regarding the program requirements. Better contact between the regulated industry and the enforcement officials should facilitate resolving questions and problems as they arise and thereby enhance the programs’ effectiveness. 5. Public Outreach The Agency believes that some form of public outreach is important to make states’ programs most effective. It is audal that the driving public in each control area be fully supportive of the oxygenated gasoline programs. Programs currently in place have provided the Agency with ideas on how a good public awareness program should work. Arizona’s public education program involves adverthing. informational brochures and a hotline. Colorado aho established an information hoiline which received 2,000 inquiries and complaints during its fIrst year. Last year, it received only 12. Colorado’s experience shows that public outreach is most likely to be important during the first season, when consumers are most unf mili r with oxygenated gasolines. The Agency recommends that the states anticipate public uneasiness, and provide the maximum amount of information possible to alleviate it. Special effort should be made to educate the area’s mechanics regarding the oxygenated gasoline program, as mechanics are a common source of information for the driving public. 25 ------- RESOURCE ESTIMATES FOR STATE IMPLEMENTATION The following is a general discussion of some components and resources recommended by EPA for successful implementation of an oxygenated gasoline credit averaging program. The costs associated with many of these components represent just the first control season, with the assumption that costs presumably will decrease in the second season as tr2ining and public relations costs become unnecessary. When using this information for specific state program planning , please keep in mind that these numbers will vary according to the number of regulated parties in the oxygenated gasoline control area. For a more detailed discussion of the Agency’s consideration of the costs of the oxygenated gasoline programs, please see the attached document Adminic*rative and Related Costs of the Oxygenated Gasoline Provisions. Using the oxygenated gasoline programs which are currently in place in the U.S. as models, the Agency believes the average Clean Air Act oxygenated gasoline program beg rniing in 1992 can be effectively developed and implemented by just a few well-trained, dedicated persons. For example, the e cting Denver, Colorado program has a two-person oxygenated gasoline team, exduding the activities of sample collection and analysis. 1. Planning stage Developing a program • Read EPA’s guidelines, then develop regulations accordingly. - Obtain the necessary legislative and regulatory authority for implementation. - Develop guidelines for regulated patties concerning recordkeeping and reporting requirements. - Answer questions and help direct the activities of the iegulated parties. 26 ------- Setting un a laboratory - Buy the necessary equipment (a new gas chromatograph will cost approximately $125,000 which can be amortized over several years to reduce the immediate capital expenditure). Alternatively, establish a contract with a convenient laboratory for the testing of samples (testing costs between $75.00 and $130.00 per sample). • Establish methods for testing oxygenated gasoline. - Develop standards and procedures for laboratory testing. - Hire one technician to run the lab, including testing and conducting compliance checks, if a gas chromalograph is purchased. If the samples are analyzed eLsewhere, it may take one technical person 15 minutes per report to verify compliance information, and one clerical person 15 minutes to file the information. Developing an administrative enforcement scheme - Set up databases and train personnel in their operation (databases are being developed by EPA). • Establish chain of custody rules and enforcement scheme. 2. Implementation Stage Inspection d retail/wholesale purchaser-consumer facilities - During each control period, inspect at least 20% of stations in control area. These inspections should indude both phyzical sampling and record review. - Assume that one inspector can obtain samples from 6 stations per day, making sure to sample each grade of gasoline and each tank from which gasoline is dispensed or offered for sale. • Hire field inspectors based upon the number of regulated facilities in the control area. 27 ------- lnsnection of uostream blending facilities • For averaging programs, during each control period, inspect 20% of CAR and btender CAR facilities which serve the control area. - Inspect refineries and other upstream facilities - Assume that one inspector can obtain samples from 3 facilities per day, making sure to sample each grade of gasoline dispensed or offered for sale. - Hire field inspectors based upon the number of regulated facilities in the control area. Post-inspection duties • After samples have been analyzed, those f2iing to meet the established requirements will call for enforcement follow-up. A staff person should return to the facility where the illegal sample was pulled, conduct a more thorough record review in order to determine the gasoline’s origin, and serve notice of the violation. Review of reports submitted to the state for averanin2 oromams - Regulated parties participating in averaging programs should be submitting three different types of records to the states: registration forms, averaging period reports, and control period attestation engagement reports. Assume that the review process will take one program person one hour per report, and one derical person one half hour to file and enter the information into the database. This review process will entail comparing trading parties’ reports for accuracy, made possible through the use of the databases a developed by the EPA. 28 ------- Public Outreach - Beginning 3 months before the program’s start and continuing during the program’s operation, conduct public outreach activities. These may include, but are not limited to: - Advertisements - -Hodines • Public meetings • Educational materials (brochures, etc.) - Press coverage Tr ainhiD • Two months before the beginning of the first control season, conduct training workshops for local mechanics and representatives of the gasoline distribution network. Discuss the requirements of the oxygenated gasoline program, individual responsibilities, as well as air quality benefits to be gained. Be sure that all regulated parties have been given the appropriate reporting forms (currently being designed by the Agency). 29 ------- Table 2 Cost-Effectiveness of CO Oxyg.nate Progrea Mid-Atlantic City • - 4-Month Period Gasoline Progra. Progra. Cal. (au. gal.) Cost Total Coat I.n.fit Progra. Year (4-Mo.) p .r gal. (.illiona) (tons) Cost/Ton 1992 714.9 50.0205 $14.7 66.061 $222 1993 729.5 50.0205 $15.0 63,162 $237 1994 745.9 50.0205 $15.3 61,101 $250 — 1995 764.2 50.0205 $15.7 58,874 $266 1996 783.0 50.0205 $16.1 56,890 5282 1997 803.3 50.0205 $16.5 55,402 $297 1998 825.4 50.0205 $16.9 54,278 $312 1999 848.7 $0.0205 $17.4 52.779 $330 2000 873.3 50.0205 $17.9 53,220 $336 Table 3 Cost-Effectiveness of CO Oxygenate Prograa West Coast City - 4 Month Control Psriod Gasoline Progra. Prograa Cal. (oil. gal.) Cost Total Coat knsfit Progra. Year (4-Mo.) per gal. (.illiona) (tons) Cost/Ton 1992 314.1 50.0435 $13.7 37,888 $491 1993 321.2 50.0435 $14.0 26,599 $525 1994 328.5 50.0435 $14.3 25,541 . $559 1995 336.5 $00433 $14.6 24,682 $598 1996 344.1 50.0435 $15.0 23,534 $637 1997 353.8 50.0435 $15.4 22,829 $674 1998 363.3 $00435 $158 22,090 $7l 1999 3737 50.0435 $16.3 21411 $739 2000 384.6 50.0435 $16.7 21,506 $778 ------- Figure 1 National Trend in Emissions of Carbon Monoxide 1980 - 1989 Miscellaneous Solid Waste Fuel Combustion E Transportation 1981 1982 1983 1984 1985 1986 1987 1988 CO emissions, million metric tons/year 120 100 80 60 40 20 Industrial Processes 0 1980 1989 ------- Figure 2 Mid-Atlantic Scenario Thousands of tons, CO 600 Base case 2.7% oxygen 500 400 300 200 100 0 i I - I I I I I I I 1992 .1993 1994 1995 1996 1997 1998 1999 2000 ------- Thousands of tons, CO 200 Figure 3 West Coast Scenario Base case - - - - - — - -- - _ 2.7% oxygen 150 100 50 0 I I I I I I I 1992 .1993 1994 1995 1996 1997 1998 1999 2000 ------- ppm 20 15 10 5 0 Figure 4 Top 1 ive Monthly 8-Hour CO Concentrations* hiladeiphia Metropolitan - 1989 * The bars represent the five hLghest daily J F M A M J 1989 J A 0 N D 8-hour CO readings within each month. ------- ppm 20 15 10 5 0 Figure 5 Predicted CO Concentrations with Oxy-Fuels Effect Philadelphia Metropolitan -- 1992 * The bars represcht predictions of the five highest daily 8-hour CO readings within each 1992 J F M A M J J A S 0 N D month. ------- ppm 20 15 10 5 0 Figure 6 Predicted CO Concentrations with Oxy -Fuels Effect Philadelphia Metropolitan -- 1995 * The bars represent predictions of the five highest daily 8-hour CO readings within each month. I 1995 J F M A M J J A S 0 N D ------- ppm 20 15 10 5 0 Figure 7 Predicted CO Concentrations with Oxy -Fuels Effect Philadelphia Metropolitan -- 2000 __ * The bars represent predictions of the five st daily 8-hour CO readings within each h. I I J F M A M J A S 0 N D 2000 ------- determined that the proposed rulemaking does not have sufficient rederalism implications to warrant the Preparation of a Federalism , ssessment, lJst of Subjects in 33 CFR Part 165 Harbors. Marine Safety. Navigation (water). Safety Measures, Vessels. Waterways. Regulation In consideration of the foregoing. subpart C of part 105 of title 33, Code of Federal Regulations, is amended as Follows: 1. The authority citation for part 105 continues to read as follows: Authority 33 U.S.C. 1225 and 1231; 50 U.S.C. 191:40 CFR 1.48 nd 33 CFR 1.05—1(g). 6.04—i. 8.04-6. and 160.5. 2. A new § 165.T841 Safety Zone: West Port Arthur Turning Basin. Taylor l3ayou. (a) Location. The following area is a safety zone: West Port Arthur Turning Basin, Taylor Bayou. (b) Effective Dote. This regulation becomes effective on June 24, 1992. It terminates on February 1. 1993 unless emergency dredging operations are completed prior to this date.- (c) Regulations: (1) In accordance with e general regulations in § 165.23 of this Irt. the COTP Port Arthur TiCis tablishing a safety zone requiring a 36 ..ot draft restriction in the West Port Arthur Turning Basin. No vessel with greater than a 36 foot draft may traverse the West Port Arthur Turning Basin. Dated: June 24. 1992. Ii. Robinsot,, Captain. USCC Captain of the Port. Port Arthur. Texos. JFK Doc. 92—25308 Filed 10-19—92:8:45 am) ea.ueic coos is -ia . ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 80 IFRL-4524 -6l • Notice of Final Oxygenated FueI* Labeling RegulatIons Under SectIon 211(m) of the Clean Air Act as Amended . j AGENCY: Environmental Protection Agency. ACTION: Notice of final rulemaking . SUMMARY: Section 211(m) of the Clean Act, as amended by the Clean Air I Amendments of 1990 (the Act) uires that various states submit itions to their State Implementation Plans, and implement an oxygenated gasoline program. Section 211(m)(4) of the Act provides that any person selling retail oxygenated gasoline pursuant to these state programs shall be required to label the fuel dispensing sysiem—in accordance with EPA regulations— providing notice that the gasoline is oxygenated and will reduce motor vehicle CO pollution. This action promulgates these labeling regulations. The oxygenated gasoline program, and therefore the labeling regulations. applies to all states with carbon monoxide (CO) nonattainment areas having design values of 9.5 ppm or more based generally on data for 1988 and 1989.’ The lablelng regulations apply to those retail gasoline pumps located within the control area of the s(ate oxygenated gasoline program, and apply during the period of the year (control period) covered by the state oxygenated gasoline program. EPA’s guidance on control periods by area will be addressed in a separate Federal Register notice. EFFECTIVE DATE: These regulations are effective on November 19. 1992. ADDRESSES: Materials relevant to this rulemaking have been placed in Docket A—91-04 by EPA. The docket is located in the Air Docket Section (LE—131). US. Environmental Pro ectiôn Agency , ’401 M Street S.W.. Washington. D.C. 20460, in room M—15a0 Waterside Mall and may be inspected from 8:30 a.m. to 12 noon and from 1:30 p.m. to 3:30 p.m. Monday through Friday. A reasonable fee may be charged for copying docket material. EPA utilized the Regulatory Negotiation process developing the labeling regulations that appeared in the July 9, 1991 Federal Register. 2 A separate docket exists for the Regulatory Negotiation. Materials related to the Regulatory Negotiation have been placed in Docket A—91—17 by EPA. FOR FURThER INFORMATION CONTACT: Alfonse Manna to. (202) 260—9050. SUPPLEMENTARY INFORMATION: I. Introduction ‘Plea., refer to the “Supplemental Notice or Proposed Culdance on E ,Isblishment of Control Periods under Section 211(m) of the Clean Air Act as Amended, ’ 57 PR 440& 4409 (Februsty 5. 1992p. Finut guidance on establishment of control period, will be published shortly ‘58 FR 31151 dispense oxygenated gasoline pursuant to the requirements of section 211(m) of the Act. On July 9. 1991 EPA proposed labeling regulations in the Federal Register.’ EPA utilized the Regulatory Negotiation process in the development of those proposed regulations. This process is discussed below. The remainder of this preamble is divided into three parts. Section Ii provides background information on today’s action. Section Ill presents EPA’S final action and rationale. Section IV summarizes and addresses comments received in response to the July 9. 1991 Notice of Proposed Rulemaking (NPRMJ. II. Background Requirements of Section 211(m) Section 211(m) of the Act requires states with carbon monoxide nonauainment areas with design values of 9.5 parts per million (ppm) or more, based on data for the two year period of 1989 and 1989,’ to submit revisions to their State Implementation Plans (SIP’s) to implement an oxygenated gasoline program. The state must implement an oxygenated gasoline program In specified control areas, requiring gasoline to meet a minimum oxygen content of 2.7% by weight, subject to a testing tolerance established by the Administrator. As noted above, the control period guidance will be the subject of a separate Federal Register notice. Section 211(m)(4) aujhorizes the Administrator to promulgate labeling regulations for the sale of gasoline at retail gasoline stations in oxygenated gasoline control areas. On July 9. F.PA proposed such labeling regulations. Oti July 18. 1991. a public hearing was held. Regulatory Negotiation Process EPA utilized the Regulatory Negotiation process to aid in the development of these regulations. This process was initiated on February 8, 1991, when EPA announced its intent to form an Advisory Committee to negotiate certain guidelines and proposed regulations implementing the clean fuels provisions of Section 211 (k) and (m) of the Act. A public meeting was held on February 21—22. 1991 in Washington, D.C. and, after considering comments submitted in response to the notice and the results of that public meeting. an Advisory Committee was established on March 13. 1991.’ On ‘58 FR 31148 (Julyg. 19911 • .ce footnote I. above. • 58 FR 31148 (July 9. 1991). • Sara 5187 (February 5. 1991J. ‘SO FR 105 2 (March 13 1991) Q/() Federal Register I Vol. 57. No. 203 I Tuesday. October 20, 1992 / Rules and Regulations 47769 Th s notice promulgates EPA s labeling regulations for certain retail pumps that dispense oxygenated gasoline. Under Section 211(m)(4) of the Act the Administrator is authorized to promulgate regulations for labeling of retail fuel dispensing systems which ------- 47770 Federal Register I Vol. 57. No. 203 / Tuesday. October 20. 1992 Rules and Regulations August 16. 19 Jl. an Agreement in Principle was sigrtedby members of the Advisory Committee- That Agreement embodies the consensus on the part of the Advisory Committee members on basic elements of the oxygenated gasoline and reformulated gasoline programs. A copy of (he Agreement has been placed in the public docket for this rulemaking. The above-referenced notices contain a more detailed discussion of the issues referrecf to the Regulatory Negotiation Advisory Committee, as well as information on the requirements of the regulatory negotiation process. ill. Description of Today’s Action Under the labeling regulations issued today, the gasoline pumps at retail stations in each control area are to be labeled. durmg the applicable control period. with conspicuous labels. Persons who own, lease, operate, controL or supervise retail gasoline stations are responsible for compliance with the labeling requirements, of this section. The label must be clearly readable to the public, in. order to inform the public of what product ‘it is receiving. EPA’s labeling regulations require that each gasoline pump stand at the affected retail outlets mast- have. during the control periods, a legible and conspicuous label stating the following: The gasoline dispensed [ rain this pump is oxygenated and will reduce carbon monoxide pollution from motor vehicles. This language is proper either for a per gaflon 2.7% program or for a credit program requiring a 2.7% average oxygen content and a minimum oxygen content for each gallon of gasoline sold in the control area. lithe state oxygenated gasoline program contains a credit program with no minimum oxygen content requirement, then the label must state the following The fuel dispensed from this pump meets the requirements of the Clean Air Act as part of a program to reduce carbon monoxide pollution from motor vehicles. This second form of labeling language is r.ecessary so consumers are not misled into believing that the purchased gasoline is oxygenated, when in fact it lawfuLly may contain no oxygen at all. This could occur if a state oxygenated gasoline program contains a credit program, without requiring a minimum oxygen content for alt gasoline.’ Under such a scenario, gasoline with no oxygen content could legally be sold In the control area, during the applicable control period, if it is averaged with ‘A àepar lc Fudq,g R. 1 1ut., namice wiU sddreu Su dclinti (or averegILl 5 prvgrftn%. gasoline that has an oxygen content greater than the standard. EPA has recommended in its guidelines for credit programs tbat states adopt a 2.0% minimum oxygen content in connection with their credit program. The first form of the labeling language is to be used where the state oxygenated fuel program has a minimum oxygen content requirement or a per gallon requirement. EPA believes each form of these labels conforms with the requirements of the Act. They each inform the public of the beneficial goal of section 211(m}’s mandated oxygenated gasoline program. and of reductions in carbon monoxide emissions from motor vehides.. The consumes is provided information in a clear and understandable way, while minimizing the changes of confusing the public. - In order to ensure that this information Is. legible and made readable to the public. EPAs Labeling regulations require that the posting be in block letters of no less than 20-point bold type. In the July 9 1991 Notice of Proposed Rulemakin& EPA had proposed to require that the posting be in block letters of no less than 30-point boLd type.. However, several parties pointed out that 38-point letters would be m h too large for this labeL EPA agrees with this concern arid has adlusted the required lettering size to 20- point. The color of the letters should contrast with the background upon which they are placed. The label is to be placed on the vertical surface of the pump on each side with gallonage and dollar aznowit meters.. The label is to be placed on the upper two-thirds of the pump. By specifying the placement and size of the label, EPA seeks to ensure that it in dearly recognizable and readable for the public. EPA realizes that, In some rare cases, the specified placement of the label required by this rule may be illogical because of pump design. EPA anticipates that the placement specified here will work well in the vast majority of situations. However, the Agency is willing to wor c with parties who experience placement problems because of pump design. in order to develop equivalent placements that are readily visible to consumers.’ IV. Summary of Comments and EPA Response. A. Locolion of Lobe is Continents,- Some commenters expressed concern that gasoline pumps are already cluttered with labels. A few commentere suggested that labels should be permitted on the gas station building itself, in a window, or near the fuel dispensing area. These commenters expressedconcern that too many labels may create information “noise.” and therefore not serve the purpose of informing consumers. Response: An oxygenated gasoline labeling regulation is mandated by the Clean Air Act and requires the “fuel dispensing system” to be labeled. B. Older Pumps Comment A commenfer pointed out that older pumps may have glass covering the upper one-half of the pump. Some customers may have trouble reading pump meters if the labels are .required on the upper one-third of the pump. The commenter suggests that EPA allow labeLs to be on the upper two- thirds of the pump In situations where placing Labels on the upper one-third would interfere with • customer . ability to read the pump meters. Rerponse. EPA agrees wpth this concern and has revised the regulation accordingly. C. WotrfingofLeLirets Cozw.aenL- Some conmmeiaters expressed concern about a label stating. “The fuel dispensed from. this pump meets therequiremontaof the Clean Air Act as part of a program to reduce carbon monoxide pollution from motor vehicles. ’ The concern is that such o label may mislead consumers into believing that they are p wchmiag oxygenated gasoline when they may not be when there Is no minimum oxygen content requirement in a state credit program. It has been suggested that when a gasoline contains 0% oxygen, the label should not be used on that pump. EPA specifically requested comments on this issue in the fuly . 1901 Notice of Proposed Rulemaking. Some commenfers suggested that EPA should change the word “poLlution ’ to “emissions” in the labeling language. Some commenters felt that the control period should be added to the labeling language. They believed that ii the control period is stated on the labels, the labels can stay on the pumps all year. Labels would not have to be replaced at the start of each control period or removed at the end of the control period. Response: EPA believes that the language as originally agreed upon a ’ the Regulatory Negotiation is the most appropriate language- The Agency feels that the word “pollution” will be better understood than the word “emissions” by the general public. Also if ii is so desired, a state could add a requirement to their-oxygenated gasoline program that the relevent control period be listed ------- Federal Register I Vol. 57, No. 203 I Tuesday. October 20. 1992 1 Rules and Regulations 47771 on the label. This would be acceptable to EPA provided that the statement required by today s regulations also appears in its entirety, without alteration or addition. 0. Labeling with the Type of Oxygcnatc Cumment: Some commenters are concerned about users (e.g. civil aviation, boats) who need to know whether the oxygenated gasoline they receive contains ethanol or MTBE. These commenters ask whether EPA’s language is meant to substitute for, or be an additional requirement to. state labeling regulations. Response: EPA’s labeling regulation is not meant to restrict states from imposing additional informational requirements. However, the statement required by today’s regulations must also appear in Its entirety, without alteration or addition. £ Type Size for Labels CommenL’ Some commenters were concerned that 30-point type is too large for the required labels. The statement required by today’s regulation is somewhat lengthy and, if it were to be printed In 30-point type, would take up a good deal more space than is necessaty to serve Its purpose. Several parties suggested 20-poInt type, which Is easily readable by consumers at the pump. Response: EPA agrees with this concern and has revised the type size accordingly. The label must be printed in block letters of no less than 20-point bold type. V. Environmental Impact The sale of oxygenated gasoline reduces carbon monoxide emIssions from motor vehides and thereby helps carbon monoxide nonattainment areas in their efforts to achieve compliance with the national ambient air quality standard for carbon monoxide. Oxygenated gasoline, Is becoming a widely recognized control strategy for reducing carbon monoxide emissions from motor vehicles In a timely and cost-effective manner. These labeling regulations will promote consumer awareness about the beneficial effects of oxygenated gasoline In the reduction of carbon monoxide emissions from motor vehicles. VI. Public Partidpation EPA held a public hearing on these labeling regulations on July 10, 1991. - .tajor comments and response are ummanzed in part IV, above. All ;onimcnts have been placed in the ,ublic docket specified In the ‘Addresses” section of this notice. VII. Impact on Small Entities Pursuant to the Regulatory Flexibility Act, S U.S C. 001 through 612, whenever an agency is required to publish a general notice of rulemaking For any proposed or final rule, it must prepare and make available for public contact, a regulatory flexibility analysis which describes the Impact of the rule on small entities (i.e. small businesses, small organizations, and small governmental jurisdictions). A regulatory flexibility analysis is not required. however, if the Administrator certifies that the rule will not have a significant impact on a substantial number of small entities. Because the information required to comply with these labeling regulations will be supplied to retailers as part of the normal course of business by marketers and distributors, EPA estimates that the only cost of this regulation to retailers will be the cost of the label ltseIl. Therefore, the Administrator certifies that the rule will not have a substantial effect on small entities. VIII, Administrative Designation and Regulatory Analysis Under Executive Order 12291, the Agency must judge whether a regulation is “major” and thus subject to the requirement to prepare a regulatory impact analysis. Today’s rule Is not major. It will not result in an effect on the economy of $100 million or more, will not result In significant increased costs or prices, will not have significant adverse effects on competition, employment, investment, productivity and innovation, and will not disrupt domestic export markets. Therefore the Agency has not prepared a regulatory impact analysis under the Executive Order. These final regulations were submitted to the Office of Management and Budget (0MB) for review as required by Executive Order No. 12291. Any written comments received from 0MB and any EPA response to those comments have been placed in the public rulemaking docket. IX. Paperwork Reduction Act Under the Paperwork Reduction Act of 1980.44 U.S.C. 3501 ef seq.. and implementing regulations, 5 CFR Part 1320, EPA must obtain clearance from 0MB for any activity that will Involve collecting substantially the same information from 10 or more non-Federal respondents. This rule does not conduct or sponsor the collection of information. and is therefore not subject to the requirement of the Paperwork Reduction Act. X. Statutory Authority Authority for today’s action is granted to EPA by Sections 211 and 301 of the Clean Air Act (42 U.S.C. 7545 and 7601). List of Subjects in 40 CFR Part 00 Fuel additives. Gasoline. Labeling. Motor vehicle pollution. Dated: October 14. 1992, William K. Reilly. Administrator. Part 00 of title 40 of the Code of Federal Regulations is amended to read as follows: PART 80—REGULATION OF FUELS AND FUEL ADDITIVES 1. The authority citation for part 00 continues to read as follows: Authority’. Sees. 114, 211 and 30 1(a) of the Clean Air Act as amended, 42 U.S.C. 7414. 7545, and 7001(a). 2. Section 80.2 Is amended by adding new paragraphs (pp), (qq). and (rr) to read as follows: § 80.2 Oeflntllons. a • a a (pp) Control area means a geographic area In which only oxygenated gasoline under the oxygenated gasoline program may be sold or dispensed. with boundaries determined by Section 211(m) of the Act. (qq) Control period means the period during which oxygenated gasoline must be sold or dispensed In any control area, pursuant to Section 211(m)(2) of the Act. (ri) Oxygenated gasoline means gasoline which contains a measurable amount of oxygenate. 3. New subpart C consisting of § § 80.35 thru 60.39 is added as follows: Subpart C—Oxygenated Gasoline Sec. 80.35 LabelIng of retail gasoline pumps: oxygenated gasoline, Secs. 80.38-00.39 [ Reecrved.l § 80.35 Labeltng of retail gasotine pumps; oxygenated gasoline. (a) For oxygenated gasoline programs with a minimum oxygen content per gallon or minimum oxygen content requirement in conjunction with a credit program. the following shall apply: (1) Each gasoline pump stand from which oxygenated gasoline Is dispensed at a retail outlet In the control area shall’ be affixed during the control period with a legible and conspicuous label which contains the following statement: The gasoline dispensed from this pump Is oxygenated and will reduce carbon monoxide pollution from motor vehicles ------- 47772 Federal Register I Vol . 57. No. 203 / Tuesday, October 20, 1992 I Rules and_Regulations (2) The posting of the above statement shall be in block letters of no less than 20-point bold type; in a color r.ontrasting with the intended background The label shall be placed on the vertical surface of the pump on each side with gallonage and price meters and shall be on the upper two-thirds of the pump, clearly readable to the public. (3) The retailer shall be responsible for compliance with the labeling requirements of this section. ( 14 For oxygenated g solir.e programs with a credit program and no minimum oxygen conteni requirement, the following shall apply: (1) Each gasoline pump stand from which oxygenated gasoline is dispensed at a retail outlet in the control area shalt be affixed during the control period with a legible and conspicuous label which contains the following statement: The fuel dispensed from this pump meets the requirements of the Clean Air Act as part of a program to reduce carbon monoxide pollution from motor vehicles. (2) The posting of the above statement shall be in block letters of no less than 20-point bold type: in a color contrasting with the intended background. The label shall be placed on the vertical surface of the pump on each side with gallonage and price meters and shall be on the upper two-thirds of the pump, clearly readable to the public. (3) The retailer shall be responsible for compliance with the labeling requirements of this section. (FR Doc. 92—25399 Filed 1O-19-02 8:45 amJ BiWWG COOC Isis-SO-U 40 CFR Part 268 (FRL—4524—5J Hazardous Waste Management System: Land Disposal Restrictions AGENCY: Environmental Protection Agency (EPA). ACTION: Approval of Interim Final Hazardous Soil Case-By-Case Capacity Variance. SUMMARY: In the final rule’ establishing land disposal restrictions (LDR) for Third Third hazardous wastes, EPA granted a national capacity variance for those hazardous soils whose best demonstrated available technology (BDAT) was incineration. retorting, or vitrification, as well as for soils contaminated with radioactive mixed waste, due to a lack of treatment capacity. Approximatdly 73 percent of the wastes restricted from land disposal by the Third Third rule received the national capacity variance when they were contained in soils. The national capacity variance expired on May 8, 1992. Whde the var:ancc was in effect. CPA received information from generators of hazardous otls and trade associations indicating that there would not be sufficient treatment capacity for hazardous soils when the variance expired on May 8. 1992. In response to this information, EPA gathered data to determine whether treatment capacity is available for hazardous soils to which the national capacity variance applied. and, if not. to determine the reasons that it is not available. information obtained from various companies and trade associations indicated that a shortage of treatment capacity for hazardous soils continues to exist, for reasons beyond their control. Under 40 CFR 268.5. EPA is approving an interim final case-by-case extension of the LDR effective date, to May 8. 1993. applicable to all persons handling Third Third hazardous soils whose UDAT is either Incineration, retorting. or vitrification, or handling Third Third soils contaminated with radioactive mixed waste. No further applications will be required at this time from persons granted the extension by this action. However, EPA Is requiring such persons to do certain recordkeeping, and to meet certain other requirements to qualify for the extension. DATES: This action becomes effective on October 13, 1992 and expires on May 8, 1993. Comments on this action must be submitted on or before November 19. 1992. AOORESSE& Any person wishing to comment on this interim final variance must send an original and two copies of their comments to the EPA RCRA Docket (OS—305), room 2427, U.s. Environmental Protection Agency. 401 M Street SW., Washington. DC 20460. Place the docket number F—9Z-CDZP— Ft it on all copies of the comments. The docket is open from 9 a.m. to 4 p.m., Monday through Friday. except on Federal holidays. The public must make an appointment to review docket materials by ceiling (202) 260—9327. Tht public may copy a maximum of 100 pages from any document in the docket at no cost. Additional copies cost $0.20 per page. FOR FURTHER tNFORMATION CONTACT: For general Information contact the RCRA Hotline at (800) 424—9346 toll—free or (703)920—9810 locally. For information on specific aspects of this notice, contact Nicholas R. Vizzone, Analysis and Land Disposal Restrictions Section. Capacity Programs Branch (OS— 321W). Office of Solid Waste, U.S. Environmental Protection Agency. 401 M Street SW. Washington DC 20460. (703) 308-8477. SUPPLEMENTARY INFORMATION:. Outline I. Background - A. History Ii Revised Treatment Standards for Hazardous Soils II. Iustificati n for thu Extension A. Demonstration under 40 CFR 26R S B. Consultation With the States C Conclusion III. Requirements for this Extension I. Background A. H,story Congress enacted the Hazardous and Solid Waste Amendments (HSWA) of 1984. which amended the Resource Conservation and Recovery Act (RCRA). Among other things. HSWA required EPA to develop regulations that would impose, on a phased schedule. restrictions on the land disposal of hazardous wastes. In particular, sections 3004(d), (e). and (g) of RCRA (2 USC 6924 (0), (e), and (g)) prohibit the land disposal of all wastes identified or listed as hazardous as of November 1984, unless the wastes are treated (or meet treatment standards) In a manner that “substantiaLly diminish(es) the toxicity of the waste or substantially reduce(s) the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized.” That alternative to satisfying these treatment standards is disposal in a unit from which there will be no migration of hazardous constituents for as long as the waste remains hazardous. In developing such a broad program, Congress recognized that adequate alternative treatment. recayery, or protective disposal capacity might not be available by the applicable effective dates. Therefore, section 3004(h)(2) authorized EPA to grant a national capacity variance (based on the earliest date that such capacity would be available but not to exceed two years) that delays the effective date for new treatment standards. En addition, under section 3004(h)(3), EPA can grant an extension of the deadline on a case-by- case basis for one year (renewable for one additional year): however, variances are limited to a four year time period from the effective date. On June 1. 1990. EPA published a final rule (55 FR 2.2520) establishing prohibitions and treatment standards for wastes in the final third of scheduled prohibitions. Among other things. the ------- — UNrT’ED S ) 1 IORANDUX SVBTECT: TO: PROM; I//th i ar 0 s$ .z, ;-2-3 r s s l 70 -.2--3c g3 - r I,tl , ccrcac IVI U U J GRALcO .J S 5. Requirements for Reduced RVP in Stats Maintenance Plans William L. MacDowell , Chief Regulation Development Section Air and Radiation Division, Region 5 Michael Horowitz Office of General Counsel Air and Radiation Division I Thi . memorandum is ii response to the memorandum that you sent to Jan Tierney, Paul Argyropolous and myself regarding the• likelihood that the U. S. Environmental Protection Agency (EPA) would approve a state maintenance plan for a particular ozone nonattairuiient area where the stats requires that gasoline and alcohol related fuels sold in the area hays a lower volatility (Reid Vapor Pressure — RVP) than is required under f.d.rai Clean Air Act regulations. This issue arose becBuse the Ohio Environmental Protection Agency (OEPA) has announced its intention to request that the Dayton moderate ozone nonattainment area be redesignated a. attainment. The redseignation requ.st!s 10-year IDaintenance plan, as currently drafted, requires the use of fuels with RVP of 7.8 psi or lover. This requirement is more stringent than the 9 • 0 psi federal RVP standard that is in effect for the Dayton area. -. Stat. apd local governments are generally preempted under section 2l14j (4) of the Clean Air Act (W) from requiring a lower RVP ard for gasoline and alcohol fuels than that mandated Section 211(c) (4) forbids any state except california- adopting or enforcing any control or prohibition respecting am j characteristic or component of a fuel for purpoess of motor vehicle control if EPA has promulgated a control or prohibition applicable to such characteristic or component under C1 section 211(c) (1), unless the stats control or prohibition is identical to EPA’s regulations. As the federal RVP standa.ds were promulgated under section 211(c) (1) (as veil as section 211(h) ) , tbe general prohibition applies to state RVP controls. p, ta ànsmtttaimemO75?1 frip91 ’ . (4 ) Vl Pdrdcd .i R,cjckdPuitir TOO NOISIAIa 1TY 3 O 9U0 09i ZOZ ZO:Rt 28/U/ZO ------- However, an. exception to the general prohibition on state and local governments exists under CM section 211(c) (4) (C). A state may implement a more stringent RVP requirement if an - applicable state implementation plan (SIP) for the state provides for such fuel control. EPA may approve such a SIP provision where EPA finds that the stats control is necessary to achieve the national ambient air quality standard (NAAQS), in this case, for ozone. The EPA has approved SIP provisions for RVP controls in several instances where states have shown that such controls were necessary to achieve attainment in ozone nonattainment areas. In addition, EPA ha9, on occasion, approved plans providing for statewide RVP control in attainment and nonattainment areas where the state demonstrated that the statewide RVP control was necessary to achiev, the NAAQS in nonattainment areas within the stats and/or in neighboring states. EPA approval of Revisions to th. state implementation plans for ozone for New York (54 FR 26O3O, une 21, 1989) and New 3ersey (54 FR 25572, uns 16, 1989). All - previous SIP approvals were premised on a shoving that the RVP - reduction wai necessary to achieve the ozone WAAQS in azi reá that was currently not in attainment. In the Ohio situation, hpwever, your memorandum indicates that,. the Dayton area has already achieved attainment without the use ‘of the lower RVP standard. OEPA wishes to implement the lower standard not to achieve -the ozone NAAQS, but merely to provide an emissions growth margin to facilitate economic growth while maintaining the NAAQS in Dayton. There is considerable question as to whether EPA can approve a state maintenance plan that includes a requirement for low RVP gasoline in an area that has already reached attainment without the lower RVP standard. The language of section 211(c) (4) states that EPA cah approve SIPs containing a fuel provision different from the comparable federal provision only where the SIP • provision is necessary to j j compliance with a NAAQS. • Section 211(c) (4) doss not stat. that EPA can approve such a provision if it is necessary to intiin coapliancs with the • NMQS. The word achievement (or the synonymous word attainment) refers to the reaching of a goal that would occur at a specific - moment in time. Xaint.nance, however, is an ongoing process that begins cnc. ç 4evem.nt has occurred. The general usag, of the - two words, t •fore, indicates that achievement cannot be presumed t 1ude maintenance. • )foreov other sect ions of the Clean Air Act use pbrases like achisv. and meintainN the NAAQS or i.mpleaent and aaintain the NMQS, indicating that Congress understood that maintenance and achievement were not synonymous and that Congress specifically identified maintenanc, wher, it intended to include maintenance. For example, section 110 of the Act contains several references to “implementation, maintenance and —2 — oo NolsiAle zzv 3 O liSO 09Z gog ZO: T 56/U/ZO ------- enforcement” of the NMQS standards distinguishes bet wan contribution I interferenc, with maintenance. In of the Clean Air Act, prior to the C 1990, required any SIP to contain ar necessary to assure that national a ar. achieved and maintained.” secti Act Amendments of 1990 refers to acI WAAQS. Further, the CM, as amended that specifically deals with mainte clear that Congress was aware of thi attainment and maintenance. Congro included a reference to maintenance it wished to allow stat, fuel requi requirements are necessary for main It is. however, possible that I under section 211(c) (4) (C) was *ininl statement from Congress in the 1egi that they intSntionally precluded t such provision, were necessary to mi legislative history is silent regard language of section 211Cc) (4) (C) to addition, when section 110(a) (2) CD) was replaced by section 110(a) (2) (C were not included in the new sectie provides no indication as to vhethe making a significant revision to thi did not appear to consider the two different. (The Senate version of contained the phrase “achieved and of Representatives version containe 1 The House version of this section Wl in conference for the final bill. word “maintain” was not discussed, HOuse report or in the Conference r 1 at least some inferential evidence I the exclusion of the word “maintain on the meaning of a section of the evidence do.. not appear sufficient “necessary. to achieve,” as used in maintenance, in light of the evidan above. Section 110(a) (2) (D) (i) (I) 0 nonattaLnment and ddition, section 110(a) (2) CD) lean Air Act Amendments or enforcement plan “as bient air quality standards on 815(b) (2) of the Clean Air jevement and maintenance of contains a section 175k aries plans. Therefore, it is distinction between s could have, therefore, in section 211(c) (4) (C) had sment. where such enance of the standard. he exclusion of maintan nce entional There is nd 1ear lative history to indicate ate fuel provisions v er.- iintain compliance. The ling why Congress limited the “nec!essary to achieve”. In of the p e-1990 Clean Air Act , th. words ‘and maintained’ i, yet the legislative history Congress believed it was i section. In fact, Congress ers ions to be substantially hi. section in the amendments taintained,” while the House I only the word “achieved.” is accepted without discussion he, decision to discard the ,r even noted, in either the port.) Therefore, there is that Congress did not consider to have a substantial effect tatute • Howevsr, this to justify interpreting 211(c) (4) (C), to include a to the contrary discussed in the abstract, ould accept a state maintenance plan that required gasc me to hay, lower RVP than the RVP required under the federal tandaxd (which, -for the reasons discussed above, appears ii robable), the facts in Daytnm’a case, a. you have describi L them in your letter, would appear to preclude Dayton from succ sefully making a showing of n.cessity. Dayton has achieved attainment without the *ise of lower RVP fuel and it intends to implement several other control coo,, H0ISIAT’ IV ?O0 gesO 09Z O& . £0:QT 6/U/ O ------- measures to maintain the. standard. You state that a maintenance plan could be prepared without assuming the use of low-RVP fuel. Given these facts, EPA could not approve Dayton’s maintenance plan f it included a requirement for low-RVP fuel. Therefore, it is highly unlikely that EPA would approve Dayton’s maintenance SIP if it includes a provision to lower the standard for fuel volatility below the federal standard. This determination does not apply to a situation where a former nonattainment area has achieved NMQS compliance with the help of a preexisting (and preappreved) requirement for low RYP gasoline and includes the low RVP requirement in its maintenance plan. Where EPA approves a state implementation plan that includes a lower RVP standard to achieve compliance in’ a nonattainment area, and where such nonattainment area subsequently attains the NAAQS with the help of the lower RVP standard, EPA would not be required to rsconsid.r the lower RVP st. - ard in acting on the xedesignation request. EPA ha& 1ready ap v.d the state RVP standard as being necessary to achieve , - atta..nment and the continuation of the standard in a aatht.nanc e plan does not compromise the initial determination. In tact, the maintenance plan provision of the CAA, section 175A, requires SIP measures to be included as implemented maintenance measures or, at a iini uni, to be included in the state’s contingency plan for the ,area. In addition, vherC WI? is not a measure in the existing SIP, the state may be able to includ, the low RVP requirement as a contingency measure in its redesignation request. The maintenance plan containing such a contingency measure would need to include several things with respect to such a contingency measure. First, in th. maintenance plan, the state would need to provide that if the former noitattainment area ever fell back into nonattainment, the state would submit a request to EPA to find, under section 211 (c) (4) (C), that the RVP requirement is necessary for the area to achieve the ozone NAAQS. Second, since the implementation of a lower RVP would rely upon EPA’s determination of whether it was necessary to achieve attainment, the state would need to provide for the possibility that a lower RVP could not be implemented. To do so, the state would need to provide for a backup- measure in the maintenance plan. The maintenance plan could go include a commitment to adopt, as an alternative to the sps ft d measure, measures identified by EPA as practicab3 its denial of the state’. request for a lower RVP - requiremen the state chooses to adopt a.a ures specified by EPA and EPA ha. provided several options for acceptable measures, the state must adopt the requisite number of these measures as is necessary to again achieve the standard. The stat. would need to irciude a schedule for snbi (tta1 of the section 211(c) (4) (C) xQ. 1est to EPA and a schedule for final adoption and in d utation of a lower RVP standard, or the back-up measure, or the alternative measures. The schedule would need to be tied —4— IS O OU oZ@ eo:IT 6/U/ZO ------- to the triggering event for the contingency measure, not EPA’S action on the 211(c) (4) (C) request. The following is an example of how this process would work. t7pon the specified triggering event (e.g., a violation of the standard) the State would submit the 211(c) (4) (C) request to EPA within the specified tame frame. The request wo3ald -have to include the information required for a showing of n.ce*sity. (The request should note the reasons why the backup measure is uneasenabls or impracticable.) The EPA would determine as expeditiously as practicable whether the lover RVP standard was necessary to achieve compliance.... If EPA determines that the lover standard is necessary, thtn the lower RVP standard would need to be implemented in the Dayton area within the time from. specified in the maintenance plan However, if EPA determined that the lower RVP standard is not necás.ary because other reasonable and practicable m.ssures.sxist, then the state_would have to implement the other sea sure. identified by EPA aI practicable to achieve the standard or implement the identified backup in the time specified in the maintenance plan. 4inally , if EPA was unable to make a final section 211(c) (4) (C) determination befor. the time identified in the maintenanc, plan for implementation of a contingency measure to promptly correct the violation, the state would need to implement the back - up measur. at that time. I hape this information is helpful in providing your response to OEPA. If you have any further questions, please call me at (202) 260—8883. t OISIAIa UT 3 0 USO O9 ZOZ Z/ZO ------- ç O St 4 , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D C. 20460 4 L pç i Y 3 OFFICE OF GENERAL COUNSEL MEMORANDUM SUBJECT: Memorandum from Region IV on Lowering Gasoline RVP Standards below 7.8 psi FROM: Michael Horowitz, Attorney y’ tj Air and Radiation Division I TO: Al Mannato, Chief Field Operations & Support Division Regional/State/Local Coordination Section You have asked for my guidance regarding a memorandum sent to you by Kay Prince from Region 4. The memorandum contained six questions regarding whether and to what extent state governments can reduce (or ask the Agency to reduce) the standards for volatility (Reid Vapor Pressure - RVP) of gasoline and alcohol blend fuels in their states. The following memorandum provides responses to Ms. Prince’s questions. Question 1 : What areas can lower their RVP below 7.8 [ psi]? Response : There are two methods for the volatility standard in an area to be reduced below the current federal volatility standard. Under the first method, the U.S. Environmental Protection Agency (EPA) would revise its national regulations for volatility. Under the second method, a state would implement its own requirements for a more stringent volatility standard and then revise its State Implementation Plan (SIP) to reflect the more stringent standard. Both of these methods require that the state make significant showings regarding the need f or a more stringent standard and other critical issues. (a) Revision of National Volatility Standards . Section 211(h) of the Clean Air Act (the Act) states that EPA’s national regulations for volatility under section 211(h) cannot mandate a volatility standard below 9.0 psi in any attainment area, unless such attainment area was formerly a nonattainment area. Therefore, EPA cannot promulgate a ------- volatility standard under section 211(h) that requires gasoline volatility to be below 9.0 psi in any attainment area that has never been a nonattainment area. Moreover, EPA is not likely to tighten its volatility regulations in any area that is currently in attainment (even if it was at one time out of attainment) if the area is meeting the national ambient air quality standard (NAAQS) for ozone using more volatile fuel. EPA could require a rionattainment area to lower its RVP below 7.8 psi, but section 211(h) requires EPA to show that the lower RVP is necessary to generally achieve comparable evaporative emissions in nonattainment areas, taking into account enforceability, the need for emission control, and economic factors. EPA’s initial regulation used meteorological data to determine what the volatility standards for nonattainment areas should be to achieve comparable emissions. Revision of these standards for a single area would therefore likely be based at least partly on additional meteorological data. b. Revision Incorporated Into State Implementation Plan State governments are generally preempted under Clean Air Act section 211(c) (4) (A) from requiring that any or all areas in a state meet a more stringent volatility standard than the federal standard. 1 However, a state can require a more stringent standard in its SIP if the state can show under section 211(c) (4) (C) that the more stringent standard is necessary to achieve the NAAQS for ozone in a particular nonattainment area. 2 The state can make this showing by providing evidence that no other measures exist that would bring about timely attainment, or that such measures exist and are technically possible to implement, but are unreasonable or impracticable. If a state makes this showing, it can lower the volatility to whatever standard has been shown to be necessary in the rionattainment areas. Moreover, a state can also reduce the volatility standard in any or all attainment areas in the state; however, the state must first show that such stringent standards are necessary in the attainment area(s) for nearby nonattainment area(s) to achieve the NAAQS for ozone. While this showing may not be difficult for 1 EPA’s federal standards were promulgated under both section 211(c) and section 211(h). States are generally preempted under section 2 11(c) (4) (A) from requiring fuel standards that are more stringent than federal standards promulgated under section 211(c). 2 This memorandum does not address whether a state may also require a more stringent standard as part of a maintenance or contingency plan for a former nonattainment area. —2— ------- an attainment area that is in the same metropolitan area as a nearby nonattai nment area, it is more difficult to make such a showing for an attainment area that is a considerable distance from the nearest nonattainment area. Thus, statewide reduction in volatility levels may be difficult in states with large areas that are in attainment and are far from nonattainment areas. However, it should be noted that the EPA approved New York state’s statewide volatility regulations, which were more stringent than the federal standards for the state, because EPA found that New York was able to show that the more stringent standards were required for the whole state. The final approval noted that several counties had experienced ozone problems and that emissions in New York could affect ozone levels in western New England, which also had experienced ozone problems. Also, the approval noted that the statewide program was necessary to ensure compliance with the program in all upstate and downstate nonattainment areas. EPA also approved similar statewide regulations for New Jersey and, I believe, Connecticut. •The federal register notices approving the New York and New Jersey SIP provisions are attached to this memorandum. Question 1 asks which areas can lower their RVP below 7.8. The state may lower RVP in any area to below 7.8 psi if it can show in the state implementation plan that the standard requested is necessary to achieve the ozone NAAQS. question 2 : What is necessary to demonstrate that lowering the RVP is necessary to achieve the standard and/or other measure(s) are unreasonable and impracticable? Response : I have attached the rulemaking notices that provide EPA’s approval of New York, New Jersey and Maricopa County, Arizona SIP revisions that required more stringent volatility standards in those states or counties. These notices should be illustrative of the showing that is necessary to demonstrate necessity. Basically, the approach used in those areas was to review all possible reduction from all other reasonable control measures. If, after accounting for such reductions, RVP controls are still required to achieve the standard, then the RVP controls are necessary under section 211(c)(4)(C). EPA did not interpret section 211(c) (4) (C) to require that a state impose more drastic measures, such as driving prohibitions, before it could adopt fuel control regulations. The revision of section 211(c) (4) (C) in the Clean Air Act Amendments of 1990 (adding the language that allowed a showing of necessity if other measures exist but are unreasonable or impracticable) indicated Congress’s agreement with this approach. question 3 : Under what circumstances can attainment areas lower their RVP? Response : See the response to Question 1. —3— ------- Question 4 : Can attainment areas lower their RVP through state regulation and not make it federally enforceable? Response : The effect of preemption under section 2 11(c) (4) is that a state may only lower its RVP standard through a revision to its SIP. SIPs are, by definition, federally enforceable. Therefore, any reduction in RVP through state standards must be federally enforceable. question 5 : If a State passes a state law lowering the RVP to any level, and is submitted/approved as a SIP revision making it federally enforceable will the FOSD enforcement team enforce the lower RVP? Response : This question is most appropriately answered by FOSD. However, it is my understanding that FOSD will not take the primary role in enforcing state laws reducing RVP standards. Such enforcement will be left to the state government that passed the law. However, FOSD is not precluded from enforcing the state law and may decide to increase its enforcement efforts if state enforcement efforts are not sufficient. Question 6 : What are the prbcedures to amend (the) December 12, 1991 Federal Register notice on RVP to lower the RVP requirements from 9.0 to 7.8 (psi]. Can a State take credit for this reduction in (its) Reasonable Further Progress 15% plan? Answer : The December 12, 1991 federal register notice explains the procedure for state requests to lower the federal volatility standard in nonattainment areas. (The federal standard generally may not be reduced from 9.0 psi in attainment areas.) In summary, the state must request such a revision by a letter from the governor. The request must contain information sufficient to show that such a revision is “necessary to generally achieve comparable evaporative emissions (on a per-vehicle) basis) in nonattainment areas, taking into consideration the enforceability of such standards, the need of an area for emission control, and economic factors.” A state may not take credit for a reduction in the federal volatility standard in the state’s Reasonable Further Progress 15% reduction plan. Section 182(b) (1) (D) of the Act clearly states that regulations concerning RVP promulgated by the Administrator by the date of the enactment of the Clean Air Act Amendments of 1990 or required to be promulgated under section 211(h) are not creditable toward the 15 percent reduction. I hope this information is helpful in providing your response to Region 4. If you have any further questions, please call me at (202) 260—8883. —4— ------- 16/24/93 16:26 fliP PPO6R( MS - fliP ENFORCEMENT 1 1I ? UNITED SlATES ENVIRONMENTAL PROTECTION AGENCY e, REGION IV 345 COURTLANO STREET. N.E. ATLANTA. G OROIA 3O3G MEMORANDUM Subject: Lowering Gaaoline’s Reid Vapor Pressure below 7.8. From: Kay Prince, Section Chief Regulatory Planning and Development Section ir Programs Branch Air, Pesticide, and Toxics Management Division To: Al Mannato, Chief R/S/L Coordination Sbction Included are questions concerning the issue of lowering.RVP below what is required by the December 12, 1991 RVP rule and the Clean Air Act as amended in 1990. Some of the States in our region are evaluating new options that can be included In their attainment strategies, and a prompt answer will certainly be beneficial to them. . 1. What areas canlower their RVPbelow 7.87 2. What is necessary to demonstrate that lowering the’ RVP is necessary to achieve the standard and/or other.•m aaure are unreasonable and impractical? 3. Under what circumotances can attainment areae 1ower their RVP? - . - . .A,;,. - - I 4. Can attainment areas lowerS their RVP- through- a sta te regulation: and not make it federally enf rceabie fl ij ,i I — —.. ,u j s 5. If a State passea a state law lowering the RV n level, and is submitted/approved as a SIP revia .on making it federally enforceable will, the FOSD anforcement4 team enforce thelower RVP? , ‘ 6. What are the procedures to amend December .l2 Y ’l99l Federal Regieter Notice on RVP to lower requiremepte from 9 • 0 to 7.8. / Can a State take credit for this eduction in their Reasonable Further Progress 15% ’p1an? - OPTIONAL FORJ 4 ft — ------- 05/L4/91 L0:1$ 202ZI0&392 OCC- AR D lvi .. Federal Register / Vol. 60. l 4o. 21. I Wednesday. February 1, 1003 1 Rules and R gi1l tions 6027 rcason.ihleness of state action. The Clean Air Act forbids EPA to base its actions concerning SIP’s on such grounds. Union Electrftco.v. U.S.-EPA. 427 U.S. Z46. 255 6 (1976); 42 U.S.C. 7410(a)(2). This action has been classified as a Table 2 action for signature b the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 9214—2225), as revised by an October 4. 1993 memorandum from Michael H. Shapiro. Acting M nstanL Administrator for Air and Radiation. The 0MB has exempted this regulatory action from. CO. ] , 8U8 review. Under section 307(bXlJ of The Clean Air Act. petitions for judicial review of this action approving twenty VOC. RACT regulations for West Virgtnia must be filed in theUnfted States Court of Appeals for tIre Appropriate clcuft by April 3. 1995. Filing petition. for reconsideration by the Adminis ator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the tints within which a petition for judicial review may be filed. and shall not postpone thn effathveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See Saclion 307(bl(2).) List of Subjects in 40 CYR Part 52 Environmental protection. Air pnhiution control. Hydrocarbons. Incorporation by reference. Intergovernntcntal relations. Ozone. Reporting and recordkeeplng requirornents. Dated: November 10.1994. Stanley L. I.askswskh •icfingflcgionclAdminlslro lor. Rc Mn III. 40 CFR pan 321s amendbd aefollows PART 52—fAMENOFO] 1. The authority citation for part 32.. continues to read as follow.: AuthorIl r. 47 U.S.C 7401-7871q. Subpart XX—W ,st Virginia • 2. Section 52. 52O is amended by: adding a sentence to the beginning of. paragraph (c)(23) Introductory ext. and by adding paragraph (c)(33) to reed as follows: § 52.2520 identifIcatIon of plan. • • . • . rules contained in paragraph (‘:)(3 ) of certified low emitting vehicles iii this section.’ • • . Massachusetts be . .izg;with model • • . • . sear 1993. Furthit .ofl 14gj .;1 ..1g94,tho (33) Ro isjons to the w t . ommonwèaj fliidlb notjfled EPA State Implementation Plan submitted of its decision to si bstinit. August 12. 1993 by the West Virginia Massachusctts’,veyslon o(the California Department of Commerce. Labor & Low Emission Vehicle (MA LEV) Environmental . Program for thi CleanFliel Fleet ( F) (I ) Incorporation by reference. Program as provided for. iii section (A) Letter of August 10, 1993 from the 1Il2(C)(4)(B) Ofthä.Cle t Air Act (CAA). West Virginia Department of Commerce. DATES: This final rule is effective on Labor & Environmental Resources Apr11 3. loos unless advsrs or critical transmitting Title 45 LegislatIve Rules, commentsare racuivedby .March 3, Series 21. Regulation to Prevent and 1905. in which case tho.rule will be Control Air Pollution from Emis.cion of withdrawn. If the rule is withdrawn. Volatile Organic Compounds. timely notice wiLl bepu6lished in Lii , (B) Title 45 LegIsl tIve Rules. Series Federal Ragiutsr 21. Regulatlqn to Prevent and Control ADOflSUS Continents maY be mat1 d to Mr Pollution from Emiuion of Volatile. Linda M. Murnhy. DirV*, 1or, Air. Organic Compounds. sctiOfls 1. 2. 3.4. Pesticides and Toxict.Managament 5.6, 7 8.9.11.12,14,13.16,17,18. DIvision. U.S .EnvIronm y sl Protection .19. 21, 22. 23, 24. 25.26,27. 28, 29. 31.. Agency. Region 1. JF C Federal Building, 36. 39. 41. 42. 43. 44.45. 46.47. nd 48. Boston. MA. 02203.Coples of the and Appendix A. which wars adopted documents.relevnnt là thisaction are May 26. 1993 and effectIve July ‘. 1993. available for public Inspection during. (ii) Additional material. . normal business hoqis, by. appointment (A) Remainder of August 10. 1993 at the Air. Pesticides ahd Toxlcs State submittal pertaining to the rules Management Divisidn.U.S. referenced In paragraph (c)(33)fi) of this -Environmental Pot ctioiiAgenq . section. . .. Region E One Congri si Street. 10th.. (iii) Additional inforotation. . . floor, Boslon..MAOnOd: Air and. (Al The rules in this paragraph (i:1133) Radiation Docket and. Information supersede the rules contained In Ceiuer, U.S. Environmental Protection .. paragraph (c)(28) of this section. Agelicy. 401 M Stzut S W, (LE—13 1). Washington, DC 20450i and the DIvision. IFR Dec. .s—1 toe Piled 1-31-95; &4S smj of Air Quality ControL Department of I L COOl 5P15f Protection; One Wiiit r Street. 8th floor Boston, MA 02108. 40 CFR Part 52 Foq FURThER IIIFORMAT1ON COSITACT Dainlen I lou Iihan..(61 .7). 585—3266. (MA38—1—4fl2a A—1—FRI.-.6136—Tl : SLIP LEMSIITARY 0IFOthuT!CN: Approval and Promulgation of Air Bacb . d - Qua llty.lmp(emenfation Plans; Soction 182(cU4XA) blthe Clean Air Commonwealth of Massachusetts; Subailtutlon of the California t.ow Act requires .ceñain States. Includingi.. CmIsslán Vehicle PrOgram for the . Massachusetts. ;o submit a Stats Clean Fuel Fleet Program implemcnrntion Plan (SIP) rsvi ion that Includes measure, to implement the • AGENCY: Environmental Prutection Cleaum Fltel Fleet Program (CFFP). Under Agency (EPA). this program: a certain.spec lfled £CtIOlft Direct final . percentage of vehicles, purchased by flt operators for covered fleets must meet emission st hda1ds that are more sLrtngcnL than those thai apply to conventional vehl4eó. Covered fleets are defined ag (leets of 10 or m.or. vehIcles thataro centrally fueled or capoble of being csntrallyl aeled. The. program applies to 1998. a id later model year vehicles In thi entire. Commonweo Mas c useitswhich is compris dof wd,sepa ale nonaueipmeuc areas: Section .. 182(c )(4UB)of be Aét aflciwsitateti.us out ’of the CJöFizelFleut .. Program by submittifig tg EPA approval a SiP revision conslst(ng oil program or programs that will rdsuttin at least SUMMARY: in this action, the Environmental ProtectIon Agency is. announcing approval of the State ImpleiJeniation Plan submitted by the Commonwealth of Maomr.h.useiis for the purpose of meeting the requirement to submit tho Clean Fuel Fled I rogram or a substituts program that meets the requirements of the Clean Air Act. EPA Is approving the State s plans rot implementing a substitute program to opt out of the Clean Fuel Fleet program. On November 13, 1993. the (c i • Commortw alth of Massachusetts (25) As of July 7.1993 the rules in this rormaily submitted a revision to their paragraph (c)(25) are superseded by the SIP to require the sal of California ------- 05/24/95 10:19 20226O&392 OGC-CL4R Divis. r o2a Federal Re Ister / Vol. 60. No. 21 /_Wednosday.Fcbruary 2, 1995 / Xulcs and Regulation. ec1ui’ a1ent long term reductions tn o’.ona producing ai,d’to ic air emissio is ç :p would. In a ordance with section 1t 2fc)(4). thc Cnmrnonweafth of Massachusetts uhrnined a commitmeln to either adopt id submit a Clean Fuel Fleet Program I’r n rquivalent substitute program. was suhniued for parallel processing on November 13. 1992. nd a formal request was s bmittod on May 7. I I93 . EPA proposed conditional approval of Massachusetis ar.tlnn on June 7. 1993 ( i8 3192n). However. prior to fInal EPA action on Massachusetts commitment. the Cnu,i of Appeals for the DisIj iCt of Coumblo held thet EPA ’s conditional approval policy was contrary to law. The cowl held that a base commitment from a state was not cuffident to weirant conditional approval from EPA under section 110(k)(4) of the Act. NflDCv. EPA. 22 F.3c1 1125 (D.C. Cir. 1994). Tliwrv1 r . EPA could not take flrtal artion on Massachusetts’ commiuneni. In faahlornng a remedy for EPA; improper use of its conditional epproyal authority, the court did not want states to be penalized for their reasonable r fl cc on EPAs actions. Massachusetts submitted a commitment to adopt a ubsihuta for the CPFP by May 13. 1994. in rellence on EPA iiiJanco. and the Commonwealth fulfilled that commitment by adopting arid submitting the w Emission. Vehicle (LEV) program regulations on May 11. 1994. Therefore. EPA does not belicv that Massachuretis should lose its ability to opt-out of the FFPbocouse of EPA s improper use of Its conditional approval authority. 1’A is today taking athon on Massachusetts suhsnisidons of November 15. 1993 and May 11. 1094. whic h ate intonded to substitute MA I.EV (or the CIT program. ilie Act niqilires states to ohsen’e (.ilrlziIn procedural requirements in developing iinpkiiu.mlatlon plan revisiostS fur ulsniissIon to 1 PA. Suction; 11fl(a)(ZI and 173fr.)(7) of the Act ri quirv states to provide reasonable notice and opportunity for public c.onhunent before accuptiog the submitied measures. Sectioa 110(1) of the Act also requires stales to provide reasonable notare and hold a public hearing before . Clopting SIP provisions. EPA imist also determine whether a t.sIu s submittal is cbmplete before taking further action on the submittal. See s ection ii0(k)(i). EPA’S completeness criteria far SIP submluals are OI out in 30 CFR. pan 51. appendix V (1i193). II. State Submittal Massac:husetts submitted a SIP revision on November 15. 1993. and supplemented it on May ii. 1994. which substiuiiud a low emission vehicle (1EV) program for the Clean Fuel Fleer program. Maasar.hiisotts held public hetuings on October30 end 31. 1991 ; November 1 . 1991; February 3. 9. 10 end 12. 1991; and October 1. 5—9. 1993 to entertain public comment on its SIP rgvisions these hearings included cho Commonwealths proposal to opt out if the Clean Fuel Fleet Program with LEV. Massachusetts regulation 310 O 1R 7.40, ‘CalIfornIa Low Emission Vehicle Program” (the LEV program). was adopted by the Commonwealth on Janus y 31. 1992. EPA reviewed the Commonwealth’s submission for completeness. in accordance with the completoness criteria. md found the subnuttals to be complete on October 25. 1994. Massachusetts has limited its proposed LEV Program tq passenger vehicles and light-duty trucks at the present time. When California Air Resuwte Board finalizes Its standards for the remainder of the vehicle Nusacbusetts will awmne the potential air quality bsn.riis of adopting the emission standards for medium duty vehicles, heavy-duty ttucks. motorcycles, and off-highway equipment. By adopting the program for passenger vehicles and light-duty trucks. Massachusetts ezpecls to decrease VOC and NOz emissions far In excess of what would be achieved from a C ?? program (namely. 42 tons per summer day of ‘IQC end 35 tons per swmner day olNOx as compared tsr 1.95W VOC and 0.99 NOx from a CFF progñm, long term). The Commonwealth exorcised hi choice to substitut, enough. equivalent emission reductions credIt fromils LEV program for the C?? program so that. of the tots) reductions obtained from the LEV program. only 1.95 tons per summer day VOC and 0.90 Ions per summer day NOx will apply as a substitute for the C?? program. lfl. Anal iis oIState Submission Section!102(c)(4) of the Clears Air Act. which allows states required to Implement a Clean Fuel Fleet program to ‘opt out’ of the program by submitting a SIP revision con.cisting of a substitute program, requires that the suhstitut program results in equal or greater emission reductions then does this Clean Fuel Fleet program. Also. EPA can only approve substitute programs that consist cxr.lusively of provisions other than those required by tho Clean Air Act for die area. Massachusetts ’ LEV program satisfies both at these requirements. I. - Section 182(c)(4)fB).stotes that a zncnsurecan be substhutad.for all or a portion of the CFF program. and that sorb a substitute program will be approvable liii achieves long-term reductions equivalent to those that would have been achieved by the portion of the CT? progress for which the measure is to be substituted. Massachusetts, in exercising itS option under section 177 ’ of the Clean Air Act. has adopted a 1EV program which ffeds all new light duly vehiclcs. iiIcaIly passenger cars and 11gm duty trucks under 5750 pounds Gross Vehicle Weight Rating (CVWR) fur vehicle model ysers 1995 and later. The MA LEV program isa f r reaching. program designed to improve the emissions performance of vehicles over a long period of thee. Thi program sets forth five dillerentsetsofcmlssion standards. and ph1il . fodu er i may market any combination of vehicle, provided that the annual.averuga emissloni of each m.utafacturer’a fleet complies with a flset4ltemge limit that becomes more stringust !ach. yder. In. addition. Masear.hoaetts 1EV program requires manufocturam to begin to market a fized percentag, of zero emission vehicles (2EVs) in model year 1995. The 2EV requirement will help ensure that the LEV program will result in rductions’ofawa forming emissions ‘to a dupe. that lest least equivalent, to the Clam Fuel Pleat program. , .; u .. , Massachusetts’ EVprogram will assure rgductlons of ozon.-Iorznlng and air toxic emiulons that are at least.. equivalent to those that would have been realized, through implementation of a Clean Fuel Tleetprogrnm. The LZV, program isa statewidsLprogr sm affecting the sale of all light dut r vehIcles. A Clean Fusi Fleer pwgr n effects a rnucb smaller subset of vehicles, i.e. new covered fleet vehicles’t.hat are already included in the LEV program. The L .EV. program has Tleet’ávsragó emission standards that sin comparable to the Clean Fuel Vehicle (CFV) emission standards that apply to clean fuel I2 eL vehicles. Wkbm pect1oiong’i .Pin emission stondardslornon:methane i nic ses .(NMOG ) ’ the Clean Fuel. Fleet progrnmTequlzu1h 170% of ttew covçrcd light dutyvshicld and light ditty truck purehasis in the effected fleets in model year 2000 and later meet’ the CFV emission standard: of 0.073 gramslmile;whi le the California LEV program requires that the long term NMOG standard for 100% of all light duty vehicles be no more than 0.062 gramaper mile (modof ean2003ond’ ------- O /Z4/95 LQ ZO ezoz2.O. 3z OGC- AR D lvi i. Federal Register / Vol. 60, No. 21 F Wednesday. February i 1005 / Rules and Regulations 5O2 ‘aiur),’ Based on the above r sideratIons, M sadtuacus ’ L.EV program has the potential to achieve emission reductions f.,r in exr.esa of ‘hose expected hy the Clean Fuel Fleet p?o ram. The LEV prognim also boa on e rIter implementation date, beginning with motlel year L995. than the foot )rO ritm. .PA. auto mnnufncttn ç and stales aru cun ntly Con iderin the pus ihiUty or developing a voluntary nationoi LEV. equivalent motor vehicic cmisstnn control program. See 59 FR 4 5664 (Sept. Li. 994) end 59 FR 53396 (Oct. 24. t 104). EPA does not expect that todays npprovui will Impede the de relopment or impismenrotlon of such a program. If Massachusetts were to participate In a LEV.oqulvalortt program. it would have his opportunity to revise IL; clean funi I1 ct program substItution. EPA is publishing this nile without p.ior proposal becamte EPA views this is a noncornroversial amendment and 1inicipatos no adverse comments. This action will be effective April 3, 1993 unless, by March 3. 1995. adverse or rilual comments ate received. if such comments are received, this rub will be withdrawn berore the effective date by publishing a tubsequent document. In the Pmposed kules Section of this Federal Reisiar, CPA Jut, proposed the same approval. on which It is taking final action in thi. riuliimnldng. IIsdverse comments are rrup.iyc.d in r sponsa to this action. EPA will address them as part. ala Final rulemaking associated with that proposed action. EPA will not instflute a second comment psnod on this action. 11 no advent. eommeets ar received, the public is advised that this nile will he offe ive April 3, 1995. Maa tai;htu,dt . I ui MS cirnemly b s. . PlforcuT.bIo PJMOG atindsid aspen of l iii i , . _ . b i ti. in lb. p,ncm. .1 .dopiln 5 one. Circit the I.iu.L uf titi mt(umabls 5 1 1406 atasdird. thesis no iwurarce iliat Mauachuastis’ LEV psepiem will irhu., the urn. .mhi ion buefli. a. ill, utopled Cahifenla, F 1t406 a,ao . P. •u 4’VcflI taiion “ri ” As laslist ‘ed ’icukrna of ‘he LEt ’ pvevIis will ha .qust toe rmaItr thin th. riducdsn. $ fl. Ft.en . . -. Mt,sachus.tis do.. ha.. sZEV iii .. m n4 .iu. which rni ht by iia.If pvo’td. NducttOa$ squall. or irate ha ,, ihe CF?? Buss It Masa.chvaatls d li ‘te l hauci ZEV mandate. hi LEV peoçerna,m p ’o’.ida. stilTcast ,edudlun. to jwdlfy ua aiitvi,luie. Mi ,sa.chu,’tftp LEV . . ,. prohibits.. auto inanuficinrers from seIiiitg hi M dL.sau. ,.. aS! vthk)o in lb. reulatod eis a , that wIIfl.d I,, Cithibirni.. Manafictursn sne ,eUy do ‘ t “dottbk.cantfy ’ vehicles to Calibntli(I-m.. tiunufacturs both a LEV and ii IJLEV v al .1 the u, ,uu msi ,Jei). Auto msni. c,t have Mid that th in ’ of vohkbo sold in CalIfornia does not differ sh iflc tl r .m the 0112 sold Ia Maiuchn..ii. il thea. lacier.. Ii i ..unilksiy ibm the NMOG iaera e of vehicles sold In coinphiar.ct with Maaa.e.IiuuwItjs 1. 1W lwepIvn wnui4 1)... I,,w ibsi .th isv pnt rani wotild not reduce .mkato ,t, eu a. much as would a Fine! Action . request for revisiort to any State EPA is approvingMassachusatia uv impiementation.planitachi’,qtigst t n t program as a stibelitute for a Clean Fuel revision to the Statd inipfernontation Fleet program: as submitted by the suite plan Thell be cons lderedlepe?ateiy in on November 13, 1993 and May 11, light of specilic technical, economic, - 1994. pursuant to sectIons 177 and and environmonial factors md in 1M2(c)(4X9) of tim Clean AiT Act. relation Ia relevant s ’ a Lutory end Under the Regulatory Flexibility t, regtilalnry reqeirement,. 5 U.S.C. 600 c i seq.. EPA must prepare nder section 307(b)(1) oftho Clean a regulatory flexibility analysis Mr Act, petitions foi judicial, review of assessing the impact of any proposed or this action mu*t be filed in the United final rule on small emities . 5 U.S.C 603.. StatesCou,t of Appeals forthe and 604. Alternatively’. EPA may certify appropnatc circuit by.April 3,99 . that th. uls will not have a significant , Filing a petition foi’ reconsideration by impact on a substantial number of small. . the Administrator of this final rule does enritfes. Small amities include small not affect the finality of this rulo.for ,ihe businesses, small not-Ter.proflt purposes of judicial review-nor does it enterprises, and governunszlt entities extend th time within which a petition with Jurisdiction over populations of mr judicial review may be filed, and less than , . shall not- postpone the effectiveness of This action has been classified as a such rttle’or action. This acilon.may not - Table 2 actIon by the Regional be challenged later In proceedings io Administrator under the procedures entgrc Its requirements.(Sse .ssciion published itt the Federal Register on 301(b)(2J.) January 19, 3969(54 FR 2214—2225). as List of Subjects in 40 CFR afl5Z revised by an October 4. 1993. Eiwiron.rnental’protectlon, 4 1r’ memorandum rrom Michael H. Shapiro. pollution control. Cerbon monoxide. Acting Assistant Administrator for Mr and Radiation. A future document will Hydrocarbons. Incorporation by reference. lntergovemmentai toialions, inform the general public of these Nitrogen dioxide, Oz s, Riporting and tables. On january 6.1989. the Office of Management and Budget (0MB) waived recortikeeping reqtdrements. TabLe 2 and Table 3 revIsions (54 FR Note incorpoTation by reference of Ui. 2222) from the rt ,quirements Stoic Implumentatlon Plsd ’ió the. O inmunwcelth of Masuchusclts was 3 uf Exuculive Order 12291 fa a ’ a period approved by the Diractor ot he Fédsml of iwo years. Th. US A.has submitted ti ’ t 3 j t . July 1 . 52. a request fore permanent waiver fat Detsd; December 1*, 1994.’ - Table land Table 3 SIP revisions. The -- 0MB has agreed to tin the temporary waiver until such time as It flc iesoI Adrninisfmioc. RaèIopi ’ rules on EPA’s request. This requeu . . PUt 52 of chapiarl. title 40, of the continues in effect un sr Code of Federal Regulitian *s amended: Order 12866 which superseded , as follows: , :: : . Executive Order 12291 en September. . PART 52—4AMENDEDJ ’ 3 , 1993. - SiPapprovols under sectIon 110 and “‘ 1. The autlturñy.dtiI oitfoi art 52 - subchapter I. port of the CAA do : c0 I1ti 5 to ieedas’follqQá crl.jt any new requlpamenis ,’bui’ . Avihont>- 42. US.C.-Uo 767iq sinsply epprove niqui,emeds that the •. . . .. . . - Commonwealth is already isi Therefore, b cagse the . SUbpOIt W .—MUSICIIUS.ItS- 2. Ssclioñ 52.1120 is am nded by $1 fl ..ad4ing paragraph (c UO3. ’to rand as rvquismentsJ certify that ’lt does not’ . fo llowm . . ‘. havi rstgnlUcun Impact on any smell . ‘‘ entities aff4ed. Moreover, due to the § 5 ,1 120 IdenUffcatlan at plan.’ nature of the fodsial .slate relationship . . a a . under the CAA, preparation of a .. . • •. .regulatory.flexlhility analysis would (103) Revisions to the Staiss, constitute’federal inquhyinth the lmplem.ntat lon Plan submitted by the econertaic ieuoniablenass’nf state action. Massachusetts Dep8r,j entiof Thd CAA’ forbId; EPA to base its gctioni ..E ’viràm,ntsl Pro ocn.âft1Jov mbcr’; concerning SIPs on such grounds. ‘ iS,i993 and. May ii;’ia9 i. aubstjtuting’’ Union,R!ectric Co. V. U.S. E.P.A.. 42? -, the.Col lfornla Low Emiuios.Ye ticIe U.S. 246. 256—66 (S.CL 1976): 42 U.S.C. program for the Clean f ’tmt leet’.. 7410 (a)(2). Nothing In this’adlon should be ‘ . ! ncorpo,at(oit byieferenèivt”’ —construed as permitting or .allowing qr (A) bitterwfronn the Misi*çbusotts estuibl shing e precedent for any future -‘ De partment of EnvIrnnfe*ttaI’Piótection’ ------- 05/24/95 10:21 20226033fl OGC-CZ&R Myls. IFR Djt. flS—2101 Ellud 1—31—’M:&431m 1 In LIMO COO I!IS$O-P 40 CFR Part 80 (AMS RL-614e —4L ReguI tlan of Fuels and Fuel Additives: Standards for Reformulated and Conventional Gasolin. AGENCY: l nvircnmont Protection Agwi y. ACTON: Partial wlthdrawril of final rule. LOORESSES; Matcria)s directly relevant lullic direct final rule arc contalnc!d in Public Docket A—94 .-30. loa’tod et Room M—1500. Watorside Mall (ground floor). U.S. Environmental Protection • Agency. 401 M StrectSW. Washingi on. • D.C. 20400. Other matenals relevant to the reformulated gasoline final rule em contained in PubUc DockclrA-01-02. end A—92—12 The docket may be inspected from &oo eta, until 4:00 p.m. Monday through Friday. As provided in 40 C1’R part La reasonable few may be r.havgod by EPA for copying docket iiiiit rii*l* oaf 1. 2004. Likowiso, since the reformulated gasoline program will commence on December 1. 1004, the clan flcacions and changes contalneil In the direct finaFtule promote succcss(ul •lrnplcntentotfon oftia. reformul • gascllx c and.onai.dumping p T a Since a number of.thc chang final rule were notFnsubstezitia proi.idcd a 30.dny commcnLpcriocl hL which commotus on specific item, could ho aulpinittad or a public hearing requested. EPA also announced that It woi wjthdi’aw from the direct’flnal rule those items that were edveracly commented on. This would have (lie effect of ro.actlvsting the regulatory prorisions.for those items in the final rule for reformulated gosolinu promulgated on Decembor 25. 1003 asitl published in the Federal Rcisler on February 16.1994 (39 FR 7715). The Agsncy.has received adverse cornmicti en just low p1 the chaiigus In the di bet ru ilrule.Thc C0UUrCnI I thsolyes can iUoundJn Public Docket A—944 Each of the specific- items addre ed:In.the comments Is being withdrawn from tb. DFRM by today’s action, which is.effective irnqiediai.1y All items that were not adversely comrii n&ed on will go into effect on September 19.4991. - A copy of this action is available oa.i the EPA. Offià oF Air Quality P1aopj j end Standards (OAQPS) Tochnolog i.. Trenslcr Nctwor Bulletin oard Systei (TTNBIIS)_ The service is free nLa ri except for (ha cost of the pho Users are able to access and d TTN files on their. first call. The— TFNBDS can biacces,ed with a d l ’ (1.130 Federal Register I Vol. 60. No. 21 / Wednesday. February 1. 2095 / Rules and Regulations dated November 5. 1093 and May 12. Emission VehIcle Pro r m’ . 310 CMR 3. Table 52.1157 of § 52,11fl7 1994, submitting a revision to the 740. amended by adding new entrith. Massachusetts State Implementation” (C) Additional definitions to 320 CMR existing state citation.for 310 CMRTàO. Plan which substitutes the California 7.flfl “Delinittona” (dated and effective ‘Deflnitions”; and by adding new state Low Emission Vehicle program for (be 2131/92) to carry out the requirements citation for 310 CMR 7.40. iJ Low Cl,iui Fuel Fleet program. set forth in 310 Q.4R 7.40. EmissIon Vehicles” to read as follows: (B) A regulation dated am l affective (ii) Additional materials. p3.1157 EPA-approved Massachusetts january 31. 1992. entItled 1J Low • “ (A) Additional norwegnlatory por1inn t State regulations. eFt) e submittal. S S • TA8L 52.11 67.—EPA-APPRoVED RULES AND REGULATIONS Datesub. Suite citation TliIthub ’ecl • F I Re ta .1’20 ci: . C ommcntzlunapprov.d sections StatS Dy EPA 310 CMR 7.00 .... Definitions 11115/93 February 1.1995 flnse Fflcitatlon 1mm 103 Appro ing a ltIonI deG. 0.4111194 • p lehac dalel. ‘ • ‘moos for. 310 CMR 7.10 .. Low emiuãon v . 11115193 Fabluaiy 1, 1095 (Insert FRdtatlon.ttom 103 Substitute for CFFP, HeIe. 66/11/94 publ isMddaraj. • • SUMMARY: On July 20. 2904. EPA FOR FURThER INFORMATION CONTACT pulilished a direct final i. (DFRM) • foamr jackson Stephens. USEPA which made minor corrections, (RDSD—12). Regulation Development churl flcations. and rcvi.inn to various and Support Division. 2565 PlymOuth provIsions in the final refomtulamd Road. Ann Arbor. Ml 40105. Telephone: usoline rub, which wee published . (3131668-4276. To request copies of February 16.1994. EPA Is withdrawing ‘ this document côntaci; Debates Frank. certain portions bf thaDFRM, hfäusa ‘U.S. EPA (RDSD— 12). Regulation ;id orso or critical comments were Devclopment and Support DMsion . received by the Agency. or an • . . Pfyinouth Road. Arm Arbor’; MI opportunity to sutimil such commenteat 4d105. Telephone (313) a public hearing wax requested for thos. SUPPLEMENTARY INFORMAIION: Tho’ specific portions. EPA is only D RM piablishcd by EPA on July20. withdrawing from the DFRM those . • 1094 made a number of changes to items which have been specifically EPA’s regulations fur reformulated and arldrn.cscd In those adverse comments, conventional gasoline. EPA Issued a The porlinne of the DFRM withdrawn • direct final rule because the changes it by EPA cwicern individual baseline . contained were gerucrully minor in,’ adjustments based on production of JP ” naiijrc and were expected io.b. non’ 4 jet fuel and changes to the vslid range controversi4Lma DFRM allowed the Iliiiils for RVP under the Simple Model,. Agency to finalize such cbangu in an All oLh r changes noted in the July 20. expeditious and timely manner. For 2994 DFRM will go Into effect on instance, many of the changes clarified September19. 1994. issues relevant to th. development and EFFECTIVE DATE: This action is effective, auditing of individual baselines which January 26. 1995. . were to be submitted no later September ------- u4/u4/va - & - Q11 tO - UNETED STATES ENVIRONMENTAL PROTECTiON AGENCY I RESEARCH TRIANGLE PAR ( NC 27711 oFFIcEoF A OUAUTY PLANMNG AND STANDARDS : i4 APR 1995 SUBJECT: Potential Request from Colorado for Permanent. Change in Denver’s Raid Vapor Pressure (RVP) Standard FROM: David coie cswLCi&... Ozone Policy and Strategies Group 04D—15) TO: Jeff Bou]c, Reg. VIII Tim Russ, Rag. VIII .r This is in response to your February 22, 1995, memorandum requesting responses t9 four questions pertaining to a potential request from the State of Colorado for permanently changing the RVP gasoline standard from 7.8 to 9.0 psi. Based on discussions between the Office of General Counsel and the Office of Mobile Sources, I have responded to your questions belOw. S Ouestipn 1 : The Denver area (classified al transitional) may qualify to use the limited maintenance plan approach (Region mi has not been advised yet by the Stat, if this is indeed their intention). Does the above presumption supersede EPA’s earlier requirement for a quantitative demonstration that alternative emission reduction strategies obviate the need for lover RVP fuel? . . . - Raa nss: Onc, the redesignation request and maintenance plan are fully a svved, this docuasnatation may replace a quantitatt i onatration. Ouastiøn 2 - f EPA grants the State a RperaanentR waiver, based upon no violations of the ozone standard, would this Upermanentu waiver be revoked and 7.1 RVP imposed if the area subsequently violated the ozone standard? If yea (or no), what i. th. legal basis for this? £ : In response to the State’s request for RVP relaxation from 7.8 to 9 • 0 psi, EPA would approve a permanent change (not a waiver) in the federal standard and would rev sa the table in the federal RVP rule. The table woUld indicate that the Denver area is subject to 9.0 RVP as a federal standard. - ------- d4IU4l If the area subsequently violates the ozone NAAQS after this permanent change is made in the federal RVP standard, EPA would not require a change in the status of the federal program. The State has the option through the contingency portion of the maintenance plan to implement and enforce a State program for 7.8 psi Rh? upon a violation of the standard. In order for the State to use the lover RVP gasoline as a State program upon a violation, a finding of necessity must first be made by EPA under section 211 Cc) (4) (C) —see attached Act provision. If this finding of necessity is not provided, Colorado must commit to choose an alternative, unspecified measure as a backup that the State deems appropriate. The State would need to give EPA a schedulO for identifying and implementing -is backup measure (e.g., 12 months from notification —. at lower RVP would not be approved), as yell as a schedule for .rnplenentirtg the lower .RVP measure. This is consistent with previous Agency guidance and published’mctidñs approving ozone redesignations to attainment where the State committed to a lower RVP in their maintenance plan. Refer to (1). November 8, 1993, memorandum from Michael Horowitz, Office of General Counsel, to William )(acDowe]l, EPA Region V, URequjz.ementa for Federal RVP in Stat. Maintenance Plans and (2) final approval of ,Preble County, OR ozone redesignation (59 FR 48397, September 21, 1994). Ouestion 3 : Could EPA require 7.8 psi RVP gasoline to be a contingency measure for the maintenance plan? If yes, what would be our legal basis? B onm : No, EPA would not require the State to specify 7 • 8 psi RVP gasoline as a contingency measure for the maintenance plan. The State may exercise its option of committing to the lower RVP as a contingency measure in the maintenance plan, which would be approved into the SIP. QUMtiQn.A:. Rave other ozone nonattainment/attainaent areas made a similar est for thi, type of a “permanent waiver? Bensa: k has approved similar requests for changes in the federal 1t ItIndard from Cherokee County, SC and Knox County, TN. In the erokee County, SC redesignation (57 FR 59300, December 15, 1992), South Carolina’s maintenance plan relied on RVP of 9.0 psi, even though the lower RVP (7.8 psi) vent into effect in Cherokee Count on June 1, 1992 • EPA approved the maintenance plan because the State adequat.ly demonstrated that the ozone standard could be maintained using the less stringent RVP of 9.0 psi. Similarly, in the Knox County, TN redesignation (58 FR 50271, September 27, 1993), EPA approved the State’s maintenance plan which relied on 9.0 psi nv to demonstrate maintenance of the ------- standard. At that time, EPA finally approved the redesignation request even, though the State was operating under the iederal 7 • RVP and EPA had not taken final action approving a change to 9.0 RVP. This is because the State’s projected inventory throughout the maintenance period shoved that, even with 9 • 0 RVP, VOC and NOx emissions did not increase- above the baseyear inventory. There was no discussion in either of these final approval notices about using 7 • 8 RVP as a contingency measure in the event of a future violation of the ozone standard. If you have any question., please contact me at (919) 541— 5565 or Michael Ball, OHS at (202) 233—9005. cc: Michael Ball, OHS Michael Horowitz, OGC Kevin McLean, OGC ------- Sec.2fl .CUAN AIR ACT 21$ 249 CI.UN AIR ACT Sec. 211 (0) h. manulacturer of anY additiv, to notIl him as to the chemk I composition of such ad4itlve. (2) For the purpeis of registration of fuels end fuel additives the AdminIatr th, may also require the manufacturer of any fuel or fuel addilly.... (A) to conduct teste to determine potential public health it. fecig at s Ø fuel or additive (including, but not limited to, car. C - - - iiic, or mr snIc effect.), and - -. I techniqu vs In r such add Jve, anJ ed ne e ry to deter- of the fuel or I . vehicle motor vehicles, motor vehicle engine., fuels, or fuel additivee auI. milled within 10 day, of notice of proposed ruleniaking the AJ-. ministrator shall hold a public bearing and publish findings with respect to any matter he Is required to consider under this sub U paragrnph. Such finding, shall be publinhed at. the time of promui 1 . gation of final regulations. . (Ci No fuel or fuel additive may be prohibited by the Administra- tot under paragraph (1) unless he rinds, and publishes such floding, that In his Judgment such prohibition wlfl not cause the use of any other fuel or fuel additive which will produce emloslons which will endanger the public health or Welfare to 11* usine or greater degree than the use of the fuel or fuel additive proposed to be pro, ‘ (31A) For the purpose of obtaining evidence and data to carr.j out paragraph (2), the Administrator may require the manufactur 7 , a er of any motor vehicle or motor vehicle engsne to furnish any ln P formation which baa been developed concerning the emissions rromV motor vehicles resulting from the use of any fuel or fuel additlvs J or th. effect of such use on the performanc, of any emiivdnn co ’ trol ds cius or system. (B) In obtaining Information under subparagraph (A), section 80? . (a) (relating to .ubpenas) shall be applicable. (4XA) Except as otherwise provided I subparagraph (B) or (Ci, no Stat. (or political subdivision thereofl may prescribe or attempt t enforce, for the purpoes. of motor vehicle emission control, any . control or prohibition respecting any characteristic or component; of. fuel or (heel additive In a motor vehicle or motor vehIc the Administrator has found that no control or proliIhI . tion of the characteristic or component of a fuel or fuel addi- tive under paragraph (1) is necessary and has published his finding In the Federal Register, or (11) It the Administrator ha. prescribed under paragraph (1) a control or preldblticu appllcabl. to such characteristic or com 4 patient of a fuel or fuel additive, unless State prohibition or. control s Identical to the prohibition or control prescribed by i the Administrator. (B) Any Stat. foe which application of section 209(a) has at any been waived aectkon 209(b) may at any time p crihe. the purpose of motor vehicle emission control, a,. any lust or fuel additive. enforce, for purposes of motor ye- a control or prohibition respecting the use of in a motor vehicle or motor vehicle engine if plan for such St.t. under sectIon 110 approve such provision in an an implementation plan con- such a finds that the State control or ion is atlonal primary or second. . ambient th. plan lmpioni bia. Tb. mlnistrak a blat. control or prohibiti - rv tq achiev , that standard If no other iii urea 1I 1 ‘ bI1n about timely attainment exist, or If other m ‘:- to - thaleanbsu.odtc fuel, the racomInsIu and the such ethic caine the live eo tali on th. em engine. nonroad which such ernie ....r su1 Lprecs result. toted in conformity the Adecinistre- sred c,nfldentlel. ‘ subsctlon, in. I register such (U i ( -- Information Information i manufacture. Ii of any fuel or or r or pro - eofsc led or prohibited by ph (1) except sentic data, In- ituol devices •:r. the pro’ iviemorays- r a manu ._.. Urer at ------- Establishment of Control Periods under Section 211(m) of the Clean Air Act as Amended U.S. ENVIRONMENTAL PROTECTION AGENCY Office of Mobile Sources Field Operations and Support Division ------- Guidance on EstablLshment of Control Periods under Section 21l( ) of the Clean Air Act as Amended SU1’ 4ARY: Section l1(m) of the Clean Air Act as amended by the Clean Air Act Amendments of 1990 (“the Act”) requires that various states submit revisions to their State Implementation Plans (SIPs) and implement an oxygenated gasoline program. This requirement applies to all states with carbon monoxide (CO) nonattajrtment areas with design values of 9.5 parts per million or more, generally based on data for 1988 and 1989. The oxygenated gasoline program must require gasoline in the specified control areas to contain no less than 2.7% oxygen by weight during that portion of the year in which the areas are prone to high ambient concentrations of carbon monoxide, except that a state is strongly encouraged to adopt an averaging program employing marketable oxygen credits. Section 211(m) (2) requires that the Administrator specify the portion of the year in which the area is prone to high ambient concentrations of carbon monoxide. This portion of the year (“control period”) is to be not less than four months in length, unless the state can demonstrate that based on meteorological conditions, a reduced period will not result in exceedances outside of such reduced period. This document provides EPA guidance on control periods by area. This document also discusses the geographic scope of the control areas- The primary determinants of the control periods are the statutory minimum of four months and data on exceedances of the carbon monoxide standard at the design value monitor in the design value year. FOR FURTHER INFORMATION CONTACT Alfonse Mannato, (202) 260-9040 SUPPLEMENTARY INFORMATION: I. Introduction This document provides EPA’s guidance on establishment of control periods for oxygenated gasoline programs under section 211(m) of the Act. Section II provides the background for this guidance, with respect to chronology and the broad issues involved. Section III presents EPA’s guidance on control periods and rationale. Comments received and EPA responses to those comments are also contained in Section III. 2 ------- II. Background Section 211(m) of the Act requires states with carbon monoxide (CO) nonattain ent areas with design values of 9.5 parts per million or more, based on data for the two-year period of 1988 and 1989, to submit reVisions to their State tmplementation Plans (SEPS) . Such states must individually implement an oxygenated gasoline program in the specified control areas requiring gasoline to meet a minimum oxygen content of 2.7 percent by weight, subject to a testing tolerance established by the Administrator. This oxygen content requirement applies during the portion of the year, referred to as the “control period,” in which the areas are prone to high ambient concentrations of CO. The length of the control period, as required by section 211(m) of the Act, is to be determined by the Administrator and shall not be less than four months in length. EPA may reduce the control period if a State can demonstrate that because of meteorological conditions, a reduced period will assure that there will be no carbon monoxide exceedances outside of such reduced period. The oxygen content requirement is to cover all gasoline sold or dispensed in the larger of the Consolidated Metropolitan Statistical Area (CMSA) or the Metropolitan Statistical Area (MSA) in which the nonattainment area is located. This document provides EPA’s guidance to states regarding the establishment of control periods for oxygenated gasoline programs, under section 211(m) of the Act. This guidance is a general statement of policy. It does not establish a binding norm and is not finally determinative of the issues addressed. Agency decisions in any particular case will be made applying the law, applicable regulations and guidelines on the basis of specific facts and actual action. The proper control period will also be an issue during the notice and comment rulemaking undertaken by EPA to review individual state submissions of oxygenated gasoline programs as SIP revisions as required by section 211(m). To expedite Agency decisions in particular cases, a state submitting a SIP revision which includes an oxygenated gasoline program with a different proposed control period than the applicable control period as specified in these guidelines should provide as detailed an explanation as possible for the differences. The Agency has determined that the 1988 and 1989 data from several areas is inadequate to properly characterize the ambient concentrations of CO. Therefore, for these areas - Boston, Cleveland and Washington D.C. - older, more representative data has been used. 3 ------- Regulatory Negotiation EPA used a Regulatory Negotiation Advisory Committee (Advisory Committee) to aid in the development of the proposed 2 and supplemental 3 guidelines published on July 9, 1991 and February .5, 1992. For a discussion of the Regulatory Negotiation process as it relates to development of these guidelines, please refer to the February 5, 1992 Supplemental Notice. III. Guidance and Rationale Control Periods In establishing an oxygenated gasoline program, the Act specifies that oxygenated gasoline will be required during the portion of the year in which the areas are prone to high ambient concentrations of carbon monoxide. The control period shall not be less than four months. These control periods are to be determined by the Administrator. EPA may reduce the control period if a state can demonstrate, based on meteorological conditions, that a reduced period will assure that there will be no carbon monoxide exceedances outside of such reduced period. Under section 211(m) (1) (B) of the Act, areas with carbon monoxide design values of 9.5 parts per million (ppm) or greater for any two-year period after 1989 shall submit SIP revisions establishing an oxygenated gasoline program within 18 months of such two-year exceedance period. EPA will address control period issues for such areas as necessary. In analyzing the control period issue, the Agency has focused primarily on the ambient monitoring data from 1988 and 1989. The Agency chose this time period because it is the time period specified in § 211(m) of the Act for determining inclusion in the program. For areas where the Agency believes that 1988-89 ambient monitoring data is inadequate, the Agency has focused on the ambient monitoring data that was used to determine that area’s attainment status. EPA has also considered more recent data in response to comments from state officials requesting modified control periods. EPA considered various approaches to calculating the period “prone to high ambient concentrations of carbon monoxide,” a phrase which the Act does not define. The first approach taken by EPA analyzed the ambient monitoring data by looking at the average carbon monoxide concentrations which occurred in 8-hour overlapping periods (Approach I). 256 FR 31151 (July 9, 1991). 57 FR 4406 (February 5, 1992). 4 ------- For each of the covered Co nor.att r..ent areas, the five h gnest days in each month were calculated and pl3tted for 1988 and 1989. Bar graphs reflecting this information for the origin al!y-proposed 39 oxygenated gasoline areas have been placed in the docket. Preliminary control periods under Approach I were identified by noting those months where any of the five highest days exceeded the National Ambient Air Quality Standard (NAAQS) for Co. Examination of the data resu] ,ting from the Approach I analysis revealed considerable heterogeneity in the length and temporal placement of a number of areas that share fuel distribution facilities. As a result, it was suggested that there is•a need to constrain this heterogeneity to facilitate transportation logistics. That is, where possible, areas that share pipeline distribution systems should be’ given the same control period. In evaluating this suggestion, EPA considered a second way of analyzing the monitoring data. This second approach used the exceedances of the carbon monoxide standard at the design value monitor in the design value year (the year in which the design value was established), to identify the months the individual areas were prone to high ambient concentrations of carbon monoxide. The outer boundaries of the season in which these exceedances at the design value monitor occurred was considered along with the larger body of monitoring data mentioned before. Determination of the control periods in this manner results in a significant degree of consistency among the control periods of areas which share oxygenate sources and transportation facilities. In many cases, using both approaches, the 4-month statutory minimum length for the control period was the controlling factor, along with the requirement that, in general, these programs begin no later than November 1, 1992. The result of the second analysis, called Approach II, has been used by the Agency as the basis for most of the control periods established in today’s guidance. Several modifications, noted below, were made to Approach II. EPA’s guidance on control periods by area is set forth in Table 1. “ In the July 9, 1991 Federal Register Notice, this number was 41, not 39. As of the current date, neither Steubenville, OH nor Winnebago, WI has been designated as a CO nonattainment area. Therefore the number of CO nonattainmertt areas covered by these guidelines is currently 39. Both of these areas have been deleted from Table 1. These bar graphs appear in a document titled, “Bar graphs of carbon monoxide in Non—Attainment Areas - Rev...sed,” June 7, 1991, which is contained in the public docket. 5 ------- By usLr.g :r. a a . ‘: -:- :• s value year ar d : ‘ c-i.’ E-’: .r a-era eS ppr acn tles the :or trc_ ge ’:: :e:—. ’- :::- ::‘e : :se,’ methodology used to define a .ze t. : t..:- :f e -r c. r standar I occurs wher. the seccr es .e ::r. .‘e: qe in a year exceeds the AAQS fc Appr 3C & .SO provides :ore logica ::r.stsze z 2 . ‘ e ;3sce szr:o . . Using this second approach, the easterfl seaboard, with the exception of the New York City area, converges on a co on core 4-month period from November through Febjuary. This sa:e core period prevails in Petroleum Adminis ration for Defense D str_cts (PADDs) 3 and 4 and in a su.bstantial portion of PADD 5. Five areas were assigned control periods in excess of four months using thIs approach. One area which merits a separate analysis is the New York City CMSA. Data from 1988—89 suggested that a control period extending ntC the summer might be warranted in the New York City area. Based on this data, EPA initially proposed a 12-month control period. However, consideration of the area’s 1990 and 1991 data supports a shorter control period. The New York State Deputy Commissioner previously proposed that the New York City CMSA program require 2.7% oxygen by weight in gasoline from November 1 to March 31, and 2.0% oxygen by weight from April 1. to October 31. In response to the February 5, 199 supplemental notice, comments were received from the New York State Department of Environmental Conservation, the New Jersey Department of Environmental Protection and Energy, the Connecticut Department of Environmental Protection and New York City Department of Environmenta] Protection officials requesting a 7-month control period based upon tL- 1990 and 1991 data. EPA has had extensive discussions with New York, New Jersey and Connecticut state ofticialé, to attempt to coordinate their input regarding this issue for their common control area. As a result of these discussions, the requests from the local officials, and 6 The definition of PADD is contained in the Petroleum SuDP1v Monthly (DOE/EIA-0109), prepared by the Energy Information Administration, Office of Oil, and Gas, U.S. Department of Energy (May 1991). The definition, which appears on page 143, is as follows: Petroleum Administration for Defense (PAD Districts . Geographic aggregations of the 50 States and the Dist .ict of Colu.mbia into five districts by the Petroleum Administration for Defense in 1950. These districts were originally instituted for economic and geographic reasons as Petroleum Administration for War (PAW) Districts, which was, established in 1942. A map showing PADDs by State appears on page 110 of the above referenced publication. 6 ------- the fact that all carbon monoxide exceedances frcn 1990 and 1991 occurred between October and April, EPA’s guidance indicates a 7-month control period for the New York City control area, for the period of October 1 through April 30. Based on discussions during the regulatory negotiation process, and in accordance with the “Agreement in Principle,” EPA had proposed to modify the control periods for Grant’s Pass, Medford and Kiamath, in the state of Oregon to the four months from October 1 through January )1. This was a modification of the control period originally proposed in the July 9, 1991 Notice. 7 The ambient air data from southern Oregon indicates high ambient concentrations for these counties in the months of December and January. The Agency considered additional months given the four—month statutory minimum. For one county, February had somewhat lower concentrations than October, and for the other two counties the February and October concentrations were approximately the same. EPA has received additional comments on this modification in response to the February 5, 1992 supplemental notice. The State of Oregon has requested that the control period for southern Oregon be returned to the original November through February period. The State believes that this control period will more accurately match the time when these areas are prone to high ambient concentrations of Co. Based on EPA’s analysis of the data alone, these counties are not prone to high ambient concentrations of Co in either October or February. Nevertheless, the Act requires a minimum control period of four months. While the statute specifies that the control period is to constitute that time of year in which the area is prone to high ambient Co concentrations, this criterion is insufficient for selecting whether October or February should be included to meet the statutory minimum in this case. In such a case, the Agenôy believes it may reasonably consider other factors, including the state’s preference, where the environmental data does not provide a substantial basis for distinction.. The commenters were split on their choice of control periods whether to include October of February. Therefore, the Agency has decided to concur with the State of Oregon’s request to set the control period from November through February. EPA has decided to adopt Approach II primarily because it is more consistent with the methodology used to determine attainment. This is consistent with the statute’s emphasis on attainment status and design value, both of which are based on design monitor values. This approach will also aid in the implementation of these state programs by helping to integrate control periods for areas which share oxygenate sources and transportation facilities. EPA is fully confident that Approach II reasonably reflects the period “prone to high ambient concentrations of carbon monoxide” for the applicable areas. 56 FR 51151 (July 9, 1991). 7 ------- several commenters have raised a concern regarding Litchfield County, Connecticut. Section 211(m) f the Act provides that the oxygenated gasoline program should apply in the entire Metropolitan Statistical Area (MSA) or Consolidated Metropolitan Statistical Area (CMSA) during that area’s control period. Separate parts of Litchfield County are included in both the Hartford and New york City CMSAS. This problem is compounded by the fact that these two control areas are proposed to have different control periods. EPA believes that the Connecticut SIP revisions should provide that each part of Litchfield County be subject to the control period applicable to the MSA or CMSA of which it is a part. The state has indicated that this decision will be a ceptable to them. Minnesota has requested a control period of October 15 through February 14. Many gasoline marketers opposed starting or ending a control period in the middle of the month. Their opposition was based upon the recordkeeping and logistical problems that a mid-month date would create. Given that one of the highest ambient readings in Minneapolis occL’rred on October 15, EPA does not believe that the October control period hould be shortened to exclude the first two weeks of October. Also, there were no exceedences in February in the Minnesota ambient data. Therefore, EPA reaffirms its control period as published on February 5, 1992 — October through January. If the State believes that February should be included, the State can consider including it as part of the control period which will be included in its SIP revision. Several commenters including the Massachusetts Department of Environmental Protection suggested that Boston should not be required to implement an oxygenated gasoline program. These commenters did not believe that the ambient monitoring data warranted implementation of an oxygenated gasoline program in the Boston CMSA. EPA does not agree with these commenters and thus strongly believes that the Boston CNSA is an area which is required to implement an oxygenated’gasoline program by November 1, 1992. EPA believes that the monitoring data collected in Boston in 1988 and 1989 was inadequate to properly characterize Boston’s CO problem. The CO microscale site in Boston was discontinued in June 1988 due to a lost lease. The site was eventually moved to a new location and resumed operation in january 1990. The new site has shown no exceedences from January 1990 through January 1992. However, rerouting of traffic patterns past this site for a major 10-year construction project is scheduled to begin in May 1992, and concentrations are expected to increase. Since a microscale CO monitor did not operate for 6 of the 8 calendar quarters during 1988 and 1989 and the previous site had recorded CO exceedences in 1986, the Agency believes it is reasonable to consider alternative data. The alternative data that the agency has chosen to use is the calendar year data from 1986 and 1987. Use of this data is consistent with current Agency policy and the Agency’s calaaification decision for Boston under Title I of the Act. 8 ------- Specific response to the co: .ze-.ts concerning the accuracy and validity of the 1986 and 1987 Boston onitor ng data will be Contained in the Technical Support Document to the Title I Designation/Classification Corrections Notice. Using the 1986 and 1987 data, EPA concludes that the Boston CMSA has a design value of 9.8 pp— Co and, hence, is required to implement an oxygenated gasoline program. The County of Sacramento has submitted a letter in response to the Supplemental Notice of Proposed Guidance. The letter states that the County would like to petition the EPA Administrator under section 211(m) (3) of the Act that the Agency alter the control period as proposed for Sacramento from October through January to November through February. EPA does not believe that the ambient data warrant such a change. There were Co exceedances in Sacramento in October and none in February during the 1989-1990 period. EPA will address the issues raised more fully at such time as a petition is actually received. A comment from the Califoinia Air Resources Board (CARB) points out that EPA, in the proposed guidelines, stated that it will consider recent ambient air quality data in issuing final guidelines or in reviewing individual SIPs. CARB recommends that the Los Angeles control period should not include the month of September. The reason given is that there were no Co exceedances in September for the years 1989 to 1991. This would result in a control period of October 1 through February 29. EPA agrees that it would be appropriate to eliminate the month of September from Los Angeles’ control period and has adjusted Table 1 accordingly. Effective Date In the Notice of Proposed Guidance on Establishment of Control Periods published on July 9, 1992 EPA proposed that gasoline programs with control periods beginning in September, October, and November would have effective dates of September 1, 1992, October 1, 1992, and November 1, 1992, respectively. In addition, EPA proposed that for areas with a control period of twelve months, the effective date will be September 1, 1992.° Based on comments, however, EPA proposed in the February 5, 1992 Supplemental Notice that the effective date, for all areas with control periods beginning on or before November 1, 1992 will be no later than November 1, 1992. After considering the public comments, EPA is recommending a November 1, 1992 start date for all programs. EPA is concerned that an effective date prior to November 1, 1992 would afford industry and the states insufficient time to implement the oxygenated gasoline programs. EPA recognizes that a November 1 start date could deprive areas of air quality benefits from the oxygenated gasoline program during that portion of control periods prior to November 1, 1992. In addition, EPA recognizes that certain areas may have an effective control period in 8 56 FR 31148, 31153 (July 9, 1991). 9 ------- / the winter of 1992-93 of less than four months. Nevertheless, EPA believes that the time necessary to successfully i pleme t this program this first year justifies the November 1. start date. In any case, states will control periods comn encing prior to November 1 are not precluded from starting their programs prior to the November 1. deadline. EPA also believes that the November 1, 1992 start date is consistent with the Act, which provides that the oxygenated gasoline requirement “shall take effect no later than November 1, 1992 (or at such other date during 1992 as the Administrator establishes under the preceding provisions of this paragraph).” For additional information and discussion of the issues related to start date, the February 5, 1992 Supplemental Notice should be consulted. GeoaraDhjc ScoDe According to Section 211(m) of the Act, SIP revisions must be submitted by each State in which there is located all or part of an area which is designated under Title I as a nonattainment area for carbon monoxide and which has a carbon monoxide design value of 9.5 parts per million (ppm) or aboye based on data for the two-year period of 1988 and 1989 and calculated according to the most recent interpretation methodology issued by the Administrator prior to enactment of the 1991 amendments to the Act. These control areas are as follows: .1. Boston-Lawrence-Salem, MA-NH CMSA 2. Hartford-New Britain-Middletown, CT CMSA 3. New York-Northern New Jersey-Long Island, NY-NJ-CT CMSA 4. Syracuse, NY MSA 5. Baltimore, MD MSA 6. Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD CMSA 7. Washington, DC-MD-VA MSA 8. Greensboro-Winston-Salem-High Point, NC MSA 9. Memphis, TN-AR-MS MSA 10. Raleigh-Durham, NC MSA 11. Cleveland-Akron-Lorain, OH CXSA 12. Duluth, MN-WI MSA 13. Minneapolis-St. Paul, MN—WI MSA 14. Albuquerque, NM NSA l5. El Paso, TX NSA 16. Colorado Springs, CO NSA 17. Denver-Boulder, CO CMSA The Agency has determined that the 1988 and 1989 data from several areas is inadequate to properly characterize the ambient concentrations of CO. Therefore, for these areas - Boston, Cleveland and Washington, D.C. - older, more representative data has been used. 10 ------- 18. Fort Collins-Loveland, CO MSA 19. Missoula, MT 20. Provo-Orem, UT MSA 21. Chico, CA MSA 22. Las Vegas, NV MSA 23. Fresno, CA MSA 24.’Los Angeles-Anaheim-Riverside, CA CMSA 25. Modesto, CA NSA 26. Phoenix, AZ NSA 27. Reno, NV NSA 28. Sacramento, CA NSA 29. San Diego, CA MSA 30. San Francisco-Oakland-San Jose, CA CMSA 31. Stockton, CA NSA 32. Anchorage, AK NSA 33. Fairbanks, AX 34. Grant’s Pass, OR 35. Kiamath County, OR 36. Medford, OR NSA 37. Portland—Vancouver, OR-WA CMSA 38. Seattle-Tacoma, WA CMSA 39. Spokane, WA NSA Section 211(m) (2) of the Act requires that the oxygenated gasoline program apply to all gasoline sold or dispensed in the larger of the CMSA or NSA in which the nonattajnment area is located. For nonattajnment areas not in a CMSA or NSA, the control area is the nonattainment area. The requirements of the program shall apply to every county, or partial county which is located in the CMSA, MSA, or nonattainment areas. Table 2, compiled based on information from the U.S. Census Bureau, contains a list of the counties that are covered by these programs. States may rely on the list of covered areas by CMSA, NSA, or nonattainment area that appear in Table 2 for implementing oxygenated gasoline programs in 1992. This requirement has caused some concern. State officials in Minnesota have expressed concern over the designation of the entire Duluth NSA as requiring an oxygenated gasoline program. Most of northeastern Minnesota is included in the Duluth MSA. According to state officials, much of this area is national wilderness area, and therefore very rural and sparsely populated. The state believes that compliance with the oxygenated gasoline provisions as proposed may prove an ‘nerous burden for the few gasoline marketers and retailers in the area. Congress specifically mandated in the Act that these programs be implemented in “the larger of the Consolidated Metropolitan Statistical Area (CMSA) in which the. (CO nonattainment] area is located, or if the area is not located in a CMSA, the Metropolitan Statistical Area in which the area is located.” Moreover, EPA does not agree that compliance in northeastern Minnesota will be onerous since that area already receives its gasoline from the Duluth area. Therefore, as 11 ------- stated above, Table 3. includes the entire CMSA or MSA, hichever is larger. For certain multi-state MSAs and CMSAS, the portions of one or more of the states in the MSA or CMSA are not actually designated as being in Co nonattairtment. For example, the Memphis CMSA extends to areas of Arkansas and Louisiana which are designated as attainment for CO. This problem arises in a number of additional states. The Agency notes that section 211(m) (1) obligates “(e]ach State in which there is located all or part of an area which is designated under title I as a nonattajnment area for carbon ;onoxide. . . (to] submit to the administrator a State implementation plan... for such area...” Section 211(m) (2) provides further that SIP revisions require that the oxygenated gasoline program apply to fuel refiners or marketers in the larger of the CMSA or MSA in which the CO nonattainment area is located. The Agency does not believe that states containing only an attainment portion of the MSA or CMSA are obligated to submit SIP revisions. In the case of such states, the attainment portions of the MSA or CMSA located within their boundaries are not themselves designated under title I as a nonattainment area for CO. These states therefore are not required to submit SIPs for such areas. Therefore, for the Memphis CMSA, Tennessee is required to implement an oxygenated gasoline program in Shelby and Tipton Counties. The Agency does not believe that Congress intended States containing nonattainment portions of the MSA or CMSA to establish oxygenated gasoline programs requiring that gasoline sold or dispensec for use outside its borders be oxygenated. An interpretation that section 211(m) requires such states to establish oxygenated gasoline programs applicable in this manner to the portions of the MSA or CMSA outside their borders raises serious constitutional issues regarding the principle of a State’s sovereignty vis a vis other States and about the constitutionality of Congress’s delegation of power to regulate interstate commerce. For areas that have carbon monoxide design values of 9.5 parts per million (ppm) for any two year period after 1989, the Act requires that a revision to the SIP shall be submitted within 1.8 months after such two year period. The statute does not specify.whether two-year periods after 1989 are to be overlapping or mutually exclusive. EPA believes the two—year period was specified to ensure that a sufficient amount of data is considered, and therefore an overlapping approach is more appropriate. EPA will address the geographic scope issues for these areas as such action becomes necessary. One such area is Ogden, Utah which has been classified as nonattainment with a design value of 9.9 ppm based on 1989 and 1990 data. Ogden will be required to implement an oxygenated gasoline program beginning in 1993. 12 ------- TABLE 1 - Guidance on C x tro1 ?er od y Nor attair.r ent Area Novenber I - February 29 Hartford-New Brjtajn-Mjdd letown, CT CMSA Boston-Lawrence-Salem, MA-NM CMSA Syracuse, NY MSA Baltimore, MD MSA Philadelphia-wilmington-Trenton, PA-NJ-DE-MD CMSA Washington, DC-MD-VA MSA Greensboro-winston-sa lei-Hjgh Point, NC NSA Memphis, TN-AR-MS MSA Raleigh-Durham, NC NSA Cleveland-Akron-Lorain, OH CMSA Albuquerque, NM NSA El Paso, TX MSA Colorado Springs, CO NSA Denver-Boulder, CO CMSA Fort Collins-Loveland, CO NSA Missoula, MT Provo-Orem, UT NSA San Diego, CA NSA Anchorage, AX MSA Fairbanks, AX Portland-Vancouver, OR-WA CMSA Seattle-Tacoma, WA CMSA Grant’s Pass, OR Kiamath County, OR Medford, OR NSA October 1- April 30 New York-Northern New Jersey-Long Island, NY-NJ-CT CMSA 13 ------- October 1 - January 31 Duluth, MN-WI MSA Minneapolis-St. Paul, MN-WI MSA ChLco, CA MSA Fresno, CA MSA Modesto, CA MSA Reno, NV MSA Sacramento, CA MSA San Francisco-Oakland-San Jose, CA CMSA Stockton, CA MSA October 1 - February 29 Las Vegas, NV MSA Phoenix, AZ MSA Los Angeles-Anaheim-Riverside, CA CMSA September 1 - FebruarY 29 Spokane, WA MSA 14 ------- TABLE 2 - C ’.SA an “SA 3 COU 1T’1 Boston-Lawrence-Sa] .en. MA- 4H C SA Boston, MA PMSA: Bristol County (pt) Mansfield Town Norton Town Rayrtham Town Essex County (pt) Lynn City Lynnfield Town Nahant Town Saugus Town Middlesex County (pt) Acton Town Arlington Town Ashland Town Ayer Town Bedford Town Belmont Town Boxborough Town Burlington Town Cambridge Town Carlisle Town Concord Town Everett City Framingham Town Framingham (CDP) Groton Town Holliston Town Hopkinton Town Hudson Town Lexington- Town Lincoln Town Littleton Town Maiden City Marlborough City Maynard Town Medford City Meirose City Nat ick Town Newtown City North Reading Town Reading Town A partial county is indicated by (pt)” following the county name. The cities and towns that appear below the county name are those that are included in the program area. 15 ------- Sherborn Town Shirley Town Somerville City Stoneham Town Stow Town Sudbury Town Townsend Town Wakefield Town Waltham City Watertown Town Wayland Town Weston Town Wilmington Town Winchester Town Woburn City Norfolk County (pt) Be].lingham Town Bra intree Town Brookline To n Canton Town Cohasset Town Dedham Town Dover Town Foxborough Town Franklin Town Holbrook Town Medfield Town Medway Town Millis Town Milton Town Needham Town Norfolk Town Norwood Town Quincy City Randolph Town Sharon Town Stoughton Town Walpole Town Wellesley Town Westwood Town Weymouth Town Wrentham Town Plymouth County (pt) Carver Town Duxbury Town Hanover Town Hanson Town Hingham Town Hull Town Kingston .Town Lakevi]le Town Marshfield Town 16 ------- Middleborough Town. Not-well Town Pembroke Town Plymouth Town Plympton Town Rockland Town Scituate Town Suffolk County Boston City Chelsea City Revere, City Winthrop Town Worcester County (pt) Berlin Town Bolton Town Harvard Town Hopedale Town Lancaster Town Mendon Town Milford Town Southborough Town Upton Town Brockton, MA PMSA: Bristol County (pt) Easton Town Norfolk County (pt) Avon Town Plymouth County (pt) Abingdon Town Bridgewater Town Brockton City East Bridgewater Town Halifax Town West Bridgewater Town Whitman Town Lawrence-Haverhill, MA-NH PMSA: Essex County, MA (pt) An esbury Town Andover Town Boxford Town Georgetown Town Grove]and Town Haverhi]l City Lawrence City Merrimac Town Methuen Town Newbury Town Newburyport City 17 ------- North Andover Town Salisbury Town West Newbury Town Lowell, MA-NH PMSA: Middlesex County, MA (pt) Billerica Town Chelmsford Town Dracut Town Dunstable Town Lowell City Pepperell Town Tewksbury Town Tyngsborough Town Westford Town Salem—Gloucester, MA PMSA: Essex County (pt) Beverly City Danvers Town Essex Town Gloucester City Hamilton Town Ipswich Town Manchester Town Marblehead Town Middleton Town Peabody City Rockport Town Rowley Town Salem City Swampscott Town Topsfield Town Wenham Town Cleveland-Akron-Lorain. OH CMSA Akron, OH PMSA: Portage County Kent city Summit County Akron City Barberton City Cleveland, OH PMSA: Cuyahoga County Cleveland City Geauga County Lake County 18 ------- Medina County Loraln—ElyrLa, OH PMSA: Lorain County El ’ria C Ity Lorain City Denver-Boulder. CO CMSA Boulder-Longmont, CO PMSA: Boulder County Boulder City r ongmont City Denver, CO PMSA: Adams County Arapahoe County Denver County Denver City Douglas County Jefferson County HArtford-New Britain-Middletown CT CMSA Bristol, CT PMSA: Hartford County (pt) Bristol Town Bristol City Burlington Town Litchfield County (pt) Plymouth Town Hartford, CT PMSA: Hartford County (pt) Avon Town Bloomfield Town Canton Town East Granby Town East Hartford Town East Windsor Town Enfield Town Farmington Town Glastonbury Town Granby Town Hartford Town 19 ------- Hartford City Manchester Town Marlborough Town Newington Town Rocky Hill Town Simsbury Town South Windsor Town - Suffield Town West Hartford Town Wethersfield Town Windsor Town Windsor Locks Town Litchfield County (pt) Barkhamsted Town New Hartford Town Middlesex County (pt) East Haddam Town New London County (pt) Colchester Town Tolland County (pt) Andover Town Bolton Town Columbia Town Coventry Town Ellington Town Hebron Town Somers Town Stafford Town Tolland Town Vernon Town Willington Town Middletown, CT PMSA: Middlesex County (pt) Cromwell Town Durham Town East Hampton Town Haddam Town Middlefield Town Middletown Town Middletown City Portland Town New Britain,CT PMSA: Hartford County (pt) Berlin Town New Britain Town New Britain City Plainville Town South ington Town 20 ------- Los Ange1es-Anahe -R1yersLde. CA CMSA Anaheim-Santa Ana, CA PMSA: Orange County Anaheim City Santa Ana City Los Angeles-Lang Beach,CA PMSA: Los Angeles County Burbank City Long Beach City Los Angeles City Pasadena City Pomona City Oxnard-Ventura, CA PMSA: Ventura County Oxnard City San Buertaventura (Ventura) City Riverside-San Bernardino, CA PMSA: Riverside County Palm Springs City Riverside City San Bernardino County San Bernadino City New York - Northern New Jersey- Lana Island NY-NJ-CT CMSA Bergen—Passaic, NJ PMSA: Bergen County Passaic County Paterson City Bridgeport-Milford, CT PMSA: Fairfield County (pt) Bridgeport Town Bridgeport City Easton Town Fairfield Town Monroe Town Shelton Towh Stratford Town Trumbull Town 21 ------- New Haven County (pt) Artsonia Town Beacon Falls Town Derby Town Milford Town Milford City Oxford Town Seymour Town Danbury, CT PMSA: Fairfield County (pt) Bethel Town Brookfield Town Danbury Town Danbury City New Fairfield Town Newtown Town Redding Town Ridgefield Town Sherman Town Litchfield County (pt) Bridgewater Town New Milford Town Jersey City, NJ PMSA: Hudson County Hoboken City Jersey City Middlesex-Somerset-Hunterdon, NJ PMSA: Hunterdon County Middlesex County New Brunswick City Perth Amboy City Somerset County Monmouth-Ocean City, NJ PMSA: - Monmouth County Ocean County Nassau-Suffolk County, NY PMSA: Nassau County Suffolk County 22 ------- New York, NY PMSA: Bronx County New York City (pt) Kings Counts New York City (pt) New York County New York City (pt) Putnam County Queens County New York City (pt) Richmond County New York City (pt) Rockland County Westchester County White Plains City Newark, NJ PMSA: Essex County Newark City Morris County Sussex County Union County Elizabeth City Norwalk, CT PMSA: Fairfield County (pt) Norwalk Town Norwalk City Weston Town Westport Town Wilton Town Orange County, NY PMSA: Orange County Stamford, CT PMSA: Fairfield County (pt) Darien Town Greenwich Town New Canaan Town Stamford Town Stamford City 23 ------- Phlade1ph1a-Wil ington—Trenton, PA-DE- U- PMSA : Philadelphia, PA-NJ PMSA: Bucks County, PA Chester County, PA Delaware County, PA Montgomery County, PA Norristown Borough Philadelphia County, PA Philadelphia City Burlington County, NJ Camden County, NJ Camden City Gloucester County, NJ Trenton, NJ PMSA: Mercer County Trenton City Vineland-Miliville—Bridgeton, NJ PMSA: cumberland County Bridgeton City Millville City Vineland City Wilmington, DE-NJ-MD PMSA: Salem County, NJ Portland-Vancouver OR-WA CMSA Portland, OR PMSA: Clackamas County Portland City (pt) Multnomah County Portland City (pt) Washington County Portland City (pt) Yamhill County Vancouver, WA PMSA: Clark County Vancouver City 24 ------- San Francisco-Oakland-San Jose. CA D SA Oakland, CA PMSA: Alameda County Berkeley City Livermore City Oakland City Contra Costa County San Francisco, CA PMSA: Mann County San Francisco County San Francisco City San Mateo County San Jose, CA PMSA: Santa Clara County Palo Alto City San Jose City Santa Cruz, CA PMSA: • Santa Cruz County Santa Cruz City Santa Rosa-Petaluma, CA PMSA: Sonoma County Petaluma City Santa Rosa City Va].lejo—Fairfield-Napa, CA PMSA: Napa County Napa City Solano County Fairfield City Vallejo City Seattle-Tacoma, WA CMSA: Seattle, WA PMSA: King County Auburn City Seattle City Snohomish County Everett City 25 ------- Tacoma, WA PMSA: Pierce County Tacoma C1.ty Albuaueraue. NM MSA Bernalillo County Albuquerque City Anchorage. AK MSA Anchorage Borough Anchorage City Baltimore. MD NSA Anne Arundel County Annapolis City Baltimore County Baltimore City Carroll County Harford County Howard County Queen Annes County Baltimore City Chico. CA NSA Butte County Chico City Colorado S rinps. CO MSA El Paso County Colorado Springs City Duluth. 104-WI NSA St. Louis County, MN Duluth City El Paso. TX NSA El Paso County El Paso City 26 ------- Fort Collins, Lcvelar.d, Co MSA Lari ar County Fort Collins City Loveland City Fresno. CA MSA Fresno County Fresno City Greensboro-Winston-Salem-High Point. NC MSA Davidson County High Point City (pt) Davie County Forsyth County Winston-Salem City Guilford County Greensboro City High Point City (pt) Randolph County High Point City (pt) Stokes County Yadkiri County Las Vegas. NV NSA Clark County Las Vegas City Medford. OR NSA Jackson County Medford City Memohis. TN-AR-MS MSA Shelby County, TN Memphis City Tipton County, TN Minneaoolis-St. PauL MN-WI MSA Anoka, County, MN Carver County, MN Chisago County, MN Dakota County, MN Hennepin County, MN Bloomington City Minneapolis City Isanti County, MN 27 ------- Ramsey County, MN St. Paul. City Scott County, MN Washington County, MN Wright County, MN Modesto. CA MSA Stanislaus County Modesto City Turlock City Phoenix. AZ MSA Maricopa County Mesa City Phoenix City Scottsdale City Tempe City Provo-Orea. UT NSA Utah County Orem City Provo City Raleigh-Durham. NC MSA Durham County Chapel Hill Town (pt) Durham City Franklin County Orange County Chapel Hill Town (Pt) Wake County Raleigh City Reno. NV NSA Wa shoe County Reno City Sacramento. CA MSA El Dorado County Placer County Sacramento County Sacramento City lob County Davis City Woodland City 28 ------- San DieQo . CA MSA San Diego County Escondido City San Diego City SDokane. WA MSA Spokane County Spokane City Stockton. CA MSA San Joaquin County Lodi City Stockton City Syracuse. NY NSA Madison County Onondaga County Syracuse City Oswego County Washjngton. DC-MD-VA MSA District of Columbia Washington City Calvert County, MD Charles County, MD Frederick County, MD Frederick City Montgomery County, MD Prince Georges County, MD Arlington County, VA Arlington (CDP) Fairfax County, VA Loudon County, VA Prince William County, VA Staf ford County, VA Alexandria city, VA Fairfax City, VA Falls Church City, VA .1anassas City, VA Manassas Park City, VA 29 ------- Other CO Nonattair ent Areas Re ’uired to :- er.ert Ox’,’Qenated Gaso1 ne Progra ms 2 : Missoula, MT Fairbanks, AK Grant’s Pass, OR Kiamath Co., OR 2 Please see the November 6, 1991 Federal Register Notice on Air Quality Designations (56 FR 56694 November 6, 1991) for a more detailed definition of the boundaries for these CO nonauainment areas. This notice is scheduled to be updated shortly. 30 ------- Guidelines for Oxygenated Gasoline Credit Programs under Section 211(m) of the Clean Air Act as Amended U.S. ENVIRONMENTAL PROTECTiON AGENCY Office of Mobile Sources Field Operations and Support Division ------- Guidelines for Oxygenated Gasoline Credit Programs under Section 211(m) of the Clean Air Act as Amended SUMMARY: Section 211(m) of the Clean Air Act as Amended by the Clean Air Act Amendments of 1990 (The Act ) requires that various states subm revisions to their State Implementation Plans (SIPs), and implement oxygenated gasoline programs. This requirement applies to all states with carbon monoxide (GO) nonattainment areas with design values of 9.5 parts per million or more based generally on 1988 and 1989 data. The oxygenated gasoline program must require gasoline in the specified control areas to contain at least 2.7% oxygen by weight during that portion of the year in which the areas are prone to high ambient concentrations of carbon monoxide. Section 211 (m)(5) of the Act requires that EPA promulgate guidelines for state credit programs, allowing the use of marketable oxygen credits for gasolines with a higher oxygen content than required to offset the sale or use of gasolines with a lower oxygen content than required. These guideknes are for such oxygenated gasoline credit programs. ADDRESSES: Materials relevant to these guidelines have been placed in Docket A-91-04 by EPA. In addition, EPA has engaged in the Regulatory Negotiation process to assist in developing these guidelines. A separate docket has been set up for the Regulatory Negotiation, Docket A-91-17. These dockets are located in the Air Docket Section (LE-131), U.S. Environmental Protection Agency, 401 M Street, SW., Washington, D.C. 20460, in room M-1500 of Waterside Mall, and may be inspected from 8:30 am. to 12:00 noon and from 1:30 p.m. to 3:30 p.m., Monday through Friday. A reasonable fee may be charged for copying docket material. FOR FURTHER INFORMATION CONTACT: Alfonse Mannato, (202) 260-9050 SUPPLEMENTARY INFORMATiON: I. Introduction These guidelines are for oxygenated gasoline credit programs required under section 211 (m)(5) of the Act. The remainder of this preamble is dMded into three parts. Section II provides the background for this action, with respect to chronology and the broad issues involved. Section Ill presents EPA ’s action and rationale. Section IV summarizes and addresses comments received in response to the Notice of Proposed Guidance’ published on July 9, 1991 and the Supplemental Notice of ‘56 FR 31148 (July 9, 1992). ------- Proposed Guidance 2 published on February 5, 1992. II. Background Motor vehicles are significant contributors of carbon monoxide emissions. An important measure to reduce these emissions is the use of ocygenates in motor vehicles gasoline. By adding oxygenates to gasoline, exhaust emissions of carbon monoxide are reduced. Section 211(m) of the Act requires that states with carbon monoxide nonattainment areas with design values of 9.5 parts per million or more, based on data for the two year period of 1988 and i989, 3 submit revisions to their State Implementation Plans (SIPs). Although the Act does not specify a due date for these SIP revisions, the Agency is interested in setting such a date in order to encourage consistency across the nation in implementing the oxygenated gasoline programs. Out of three possible due dates proposed by the Agency in its February 5, 1992 Supplemental Notice of Proposed Guidelines, 4 today’s guidelines specify November 15, 1992 as the due date for the submittal of section 211(m) oxygenated gasoline SIP revisions. Many comments received by the Agency on this issue expressed the view that the states would have difficulty complying with an earlier submittal target date because of the complexities involved and the tight timellnes associated with implementing an oxygenated gasoline program. In addition, this date is consistent with other CO SIP call provisions which are specified in section 187 of the Act. Also, a date earlier than November, 1992 would likely require notice and comment rulemaking. The SIP revisions for the required CO nonattainment areas must establish oxygenated gasoline programs requiring at least 2.7% oxygen by weight, except that states may adopt credit programs such that gasoline with a higher oxygen content than required can offset the sale or use of gasoline with a lower oxygen content than required. The oxygen content requirement is subject to a testing tolerance to be established by the Administrator. The oxygen content requirement applies during the •portion of the year in which the areas are prone to high ambient concentrations of carbon monoxide. 2 57 FR 4414 (February 5, 1992). The Agency has determined that the 1988 and 1989 data from several areas is inadequate to property characterize the ambient concentrations of CO. Therefore, for these areas- Boston, Cleveland and Washington, D.C. - the older, more representative data has been used. 57 FR 4414 (February 5, 1992). 3 ------- Under the Act, the length of these control periods is to be established by the Administrator and shall not be less than four months in length unless a State can’ demonstrate, based on meteorological conditions, that a reduced period for any individual control area will assure that there will be no carbon monoxide exceedances outside of such period. These requirements are to cover all gasoline sold or dispensed in the larger of the Consolidated Metropolitan Statistical Area (CMSA) or the Metropolitan Statistical Area (MSA) in which the nonattainment area is located. Guidance on the establishment of control periods appears in additional guidelines published separately. 5 Section 211 (m)(5) of the Act requires that the Administrator promulgate guidelines allowing for the use of marketable oxygen credits from gasolines with a higher oxygen content than required to offset the sale or use of gasolines with a lower oxygen content than required. Under that subsection, oxygen credits may not be transferred between control areas but instead may be used only in the area in which they were created. These guidelines are for state oxygenated gasoline credit programs. The guidelines include an enforcement scheme with responsibilities and liabilities of various parties involved in the oxygenated gasoline industry. This document presents EPA’s guidance to states regarding credit programs to be employed in oxygenated gasoline programs under section 211(m) of the Act. This guidance is a general statement of policy. It does not establish a binding norm and is not finally determinative of the issues addressed. Agency decisions in any particular case will be made applying the law, applicable regulations and guidelines on the basis of specific facts and actual action. To expedite Agency decisions in particular cases, a state submitting a SIP revision which includes an oxygenated gasoline credit program should identify all areas where the state program differs from these guidelines and provide as detailed an explanation as possible for these differences. For example, this explanation could include, but need not be limited to, an explanation of any circumstances unique to the state or localities involved and a demonstration of whether the state’s proposed program would be at least as effective as the program presented in this guidance.’ EPA is aware that the gasoline production and distribution industry extends to all areas of the country, crossing state borders in an intricate, nationwide web of EPA is publishing final guidelines for the three oxygenated fuels-related notices which were published at 56 FR 31148, 31151 and 31154 on July 9, 1991. Two of these notices were published as supplemental notices at 57 FR 4408 and 4413 on February 5, 1992. 4 ------- — r commerce. At the same time, the oxygenated gasoline programs required by the Act are centered around a limited number of carbon monoxide nonattainment areas and their surrounding CMSAs or MSAs. State-based oxygenated gasoline credit programs should be structured in a way that assures their successful implementation, to the greatest extent possible, wahin the limits of state authority over a nationwide production and marketing structure. Coordinauon among states is specifically addressed in sections 102 and 187(e)(1) of the Act. EPA believes that these provisions reflect Congress’s concern that state programs applicable to multi-state nonattainment areas be coordinated, with the Agency’s help. EPA will attempt to minimize problems associated with multi-state MSAs and CMSAs. The Agency is committed to providing technical support to the states in implementing these oxygenated gasoline guidelines. These guidelines should help ensure program consistency in multi-state program areas. The Agency plans to provide technical support such as standardized training materials, audit forms, industry report forms, and database software to state officials. Also, the Agency will encourage cooperative activities by the states in an attempt to coordinate the implementation of these multi-state programs. Regulatory Negotiation EPA used the Regulatory Negotiation process to aid in the development of these guidelines. This process was initiated on February 8, 1991 when EPA announced its intent to form an Advisory Committee to negotiate certain guidelines and proposed regulations implementing the clean fuels provisions of Section 211(k) and (m) of the Act. 6 A public meeting was held on February 21-22, 1991 in Washington, D.C. and after considering comments submitted in response to the notice and the results of that public meeting, an Advisory Committee was established on March 13, 1991. On August 16, 1991 an Agreement in Principle was signed by members of the Advisory Committee. That Agreement embodies the consensus on the part of the Advisory Committee members on basic elements of the oxygenated gasoline and reformulated gasoline programs. A copy of the Agreement has been placed in the public docket. The above-referenced notices contain a more detailed discussion of the issues referred to the Advisory Committee, as well as information on the requirements of the regulatory negotiation process. Summary of the Guidelines These guidelines are to be employed in state oxygenated gasoline programs in which gasoline containing more oxygen than the minimum 2.7% by weight than is required would generate marketable credits. 6 56 FR 5167 (February 8, 1991). 56 FR 10522 (March 13, 1991). 5 ------- The credit program guidelines here presented by EPA are designed to ensure that all gasoline sold or dispensed in the control area, on the average, meets or exceeds the minimum oxygen content required under Section 211(m). Gasoline is typically sold or dispensed from gasoline terminals into trucks for shipment to retail stations, or transferred in bulk to other terminals. Under the Agency’s averaging program guidelines, averaging at the terminal level is required. In addition, oxygenate or gasoline blending conducted in trucks at the terminal or at remote locations is to be included in such averaging. This scenario should encompass all retail gasoline in a control area and should thus result in all such gasoline meeting the required oxygen content on the average. Taking advantage of the terminals’ central position in the gasoline distribution system should maximize the credit program’s success while minimizing its burdens, both on the regulated community and the governmental bodies involved. The party responsible for complying with the minimum 2.7% oxygen by weight standard on the average, over the designated averaging period, must be specifically identified. This party will be designated the Control Area Responsible Party (CAR). The responsibilities of the CAR are discussed more fully below. At the terminals the CAR would be the person who owns the gasoline sold or dispensed from a control area terminal into a truck. 8 Selling or dispensing gasoline from a terminal into trucks is commonly referred to as “breaking bulk.” Parties who own or operate terminals but who do not own or sell gasoline are not CARs. Also, persons downstream from a control area terminal who blend oxygenates into gasoline or who otherwise change the oxygen content of gasoline intended for use in any control area are also CARs, but are called Blender CARs. Blender CARS and CARs are hereinafter collectively referred to as CARs. Terminal owners, whether or not they are CARs, must provide CARs using the terminal with the volume and oxygen content of the gasoline delivered to or received from each CAR. The volume and oxygen content of all gasoline entering into a terminal must be provided to the CAR. Based on this and other information the CAR must keep a running weighted average of the gasoline it transfers into each control area.° Gasoline that is transferred in bulk becomes the responsibility of the CAR to whom it is transferred. Gasoline transferred by a CAR to another CAR is therefore removed from • Control area terminals would be those terminals at which gasoline intended for use in any control area is sold or dispensed into trucks. The terminal itself need not be physically located in the control area. Section 211 (m)(5) of the Act requires that an averaging program be conducted separately for each control area. 6 ------- the averaging calculations of the CAR who transferred the gasoline. At the end of the averaging period, the average oxygen content of all gasoline the CAR distriouted to trucks destined for each separate control area is calculated separately. In each control area, if the average oxygen content is greater than or equal to the required minimum, then compliance has been demonstrated. Credits are created if the average is greater than the required minimum. If the average oxygen content is less than the required 2.7% by weight minimum then credits are needed to meet the compliance average. The averaging program presented in these guidelines is similar to the type of program used by EPA in the lead phasedown gasoline program. To comply with the oxygenated gasoline program CARs must, at a minimum, achieve the sales-weighted average oxygen content over a specified time period, called the averaging period. This can be done either by always selling each gallon of fuel w h an oxygen content at or above the requisite oxygen content, or by adjusting the quantities and types of fuel sold over the averaging period either directly or by obtaining credits from another regulated party within the control period to attain at least the requisite oxygen content on an averaged basis. There is no intended prohibition or limitation on the ability of third party brokers to facilitate the purchase and sale of credits. However, while persons other than CARs may act as brokers, only CARs may own credits. Since brokers may not be as established in the industry as CARs, they may have a reduced sense of responsibility for the program requirements. Also, credits may be transferred to the extent such a transfer would not result in any transferor having a negative credit balance at the conclusion of any averaging period. Any credits transferred i violation of this limitation are improperly created credits which may not be used regardless of the transferee’s good faith. Where any credit transferor has in its balance both credits which were properly created and those which are improperly created, the properly created credits should be applied first to the transfers before the transferor may apply any credits to achieve its own compliance. Although not strictly necessary to achieve the desired air quality results or to comply with the requirement of Section 211(m), an averaging program has a number of benefits. The principal advantage of this program design is that it entails less regulatory intrusion into the marketplace than traditional command and control approaches. It thus retains a high degree of marketing flexibility and competition among blending agents. The advantageous aspects of this approach can be further enhanced by allowing suppliers to trade oxygen credits among themselves, with suppliers of relatively low-oxygen fuels able to purchase such credits from suppliers of relatively high-oxygen fuel within a control area. Furthermore, when compared to an oxygenated gasoline program requiring oxygen content compliance on a per-gallon basis, a program incorporating an oxygen 7 ------- averaging provision should prove to be less costly to implement in 1992. This is due to the fact that averaging programs will allow the supply of oxygenates, which some parties have suggested to be limited for the first control season beginning in 1992, to be used in a flexible and hence more efficient manner. Therefore, EPA strongly recommends that states adopt averaging programs consistent with these guidelines. EPA and various parties have raised concerns about the possibility that in the context of an averaging program, gasoline which does not conform to the requirements for oxygenated gasoline may be sold or dispensed within a control area without being detected since there would be no per-gallon standard against which to test the gasoline. Two options were considered to address this potential problem. The first option would have required the use of a marker. Under that option, gasoline which was not destined for use in a control area would contain a marker and it would be a prohibited act for parties downstream of the terminal in the distribution system to sell or dispense such marked gasoline in a control area. The second option was to establish a minimum oxygen content requirement for all gasoline sold or dispensed within the control area. EPA’s guidelines specify a minimum of 2.0% oxygen by weight in all gasoline offered for sale, sold or dispensed by a CAR for use in the control areas during the control period. This requirement would also apply to all parties downstream of the CAR. The same minimum requirement would apply for all gasoline sold or dispensed to the uftimate consumer in the control area during the applicable control periods. The only exception to this requirement would be for gasoline sold or dispensed from one CAR directly to another CAR. Also, this requirement does not prevent the storage of nonoxygenated gasoline which is either intended for use in blending with ethanol or intended for use outside of control areas. EPA requests that states monitor the availability of and demand for a variety of oxygenates, and should take appropriate steps necessary to reasonably assure the availability of these various oxygenates in the marketplace. In these guidelines, CARs are required to register with the state, and to provide reports on each averaging period. Under the guidelines, each CAR which has registered to engage in credit averaging and trading shall, as an additional part of the reporting requirements, submit an attestation engagement to the state. The attestation engagement may be conducted by either an internal auditor employed by the CAR or a certified public accountant (CPA). The attestation engagement shall be based upon the agreed-upon procedures contained in these guidelines, and shall focus on the underlying documentation that forms the basis of the reporting and recordkeeping requirements under these guidelines. This attestation report will be made at the conclusion of each annual control period. An illustrative CPA report is included as Appendix 0. These credit program guidelines provide that credits are created on the basis of 8 ------- the oxygen content of the oxygenated gasoline sold or dispensed in a particular control area, that credits are to be used to demonstrate compliance only within the same control area tn which they were earned, and that credits may only be used during the averaging period in which they were created. Ill. Action Sale of Only Oxygenated Gasoline in a Control Area The guidelines specify that each state establish a minimum 2.0% oxygen requirement by weight in all gasoline sold or dispensed by a CAR for use in the control areas during the control period. This requirement would also apply to all parties downstream of the CAR. The same minimum requirement would apply for all gasoline sold or dispensed to the ultimate consumer in the control area during the control period. The only exception to this requirement would be for gasoline sold or dispensed from one CAR directly to another CAR. This requirement would apply in addition to the other requirements for averaging programs. There are several reasons for using a minimum content requirement as an adjunct to an averaging program. First, in each control area there will be less potential variation in the effect of the program on the ambient air quality level on any given day, because of the 2.0% oxygen by weight minimum. Second, enforcement of the program will be somewhat simplified in that state enforcement personnel could readily take samples for comparison to the required minimum. 10 Finally, there will be less potential for consumer confusion concerning the amount of oxygen being marketed. EPA recommends that the states implement a five-day leadtime requirement. The data suggests that a leadtime of five days will ensure that most, if not all, retail stations will be able to dispense gasoline on the first day of every control period that contains the 2.0% oxygen by weight minimum content requirement. A longer period is not necessarily supported by the data and may cause a significant reduction in the supply of oxygenates available for the oxygenated gaso ne programs during the control periods throughout the country, especialty in the fIrst year of the program. EPA recommends that each state become familiar with the logistics associated with their respective CMSAs and MSAs in order to ensure that a five-day leadtime is adequate. Length of Averaging Period The following averaging periods shall apply to all control areas: For any area with a control period of five months or less, the averaging period shall be equal to the 10 Sampling for the minimum will not obviate the need for states to audit CARs to ensure the averaged standard of 2.7% is being met. Guidelines for state audits will be covered in a separate implementation document to be issued later this year. 9 ------- control period, and for areas with control periods of SIX months or longer, the averaging period shall be three months in length. In addition to these averaging periods, EPA recommends use of a 30-day reconciliation period following each averaging period, during which time CARs may purchase or sell credits for use in connection with the averaging period which has just concluded. Because credits may not be “banked, or carried from one control period to another, this reconciliation period will allow maximum use of credits by each CAR during each control period. Banking Credits Some parties have suggested that the banking of credits from one averaging period to another should be allowed as a means of permitting further flexibility to the industry. In light of the averaging periods that have been established, the minimum requirement of 2.0% oxygen in every gallon of gasoline and the 30-day reconciliation period at the end of each averaging period, the Agency believes sufficient flexibility is available, is concerned that carryover of credits could potentially present air quality problems, and therefore is not including a banking provision in these guidelines. Blendstock/Export/Storage Issues The sale or distribution of nonoxygenated gasoline by any person for use in any control area is prohibited under these guidelines unless (a) such gasoline is segregated from oxygenated gasoline, (b) the documents which accompany such gasoline are clearly marked as ‘nonoxygenated gasoline, not for sale to ultimate consumer in a control area,’ and (C) the nonoxygenated gasoline is in fact not sold or dispensed to ultimate consumers, during the control period, in the control area. Gasoline intended for sale to the ultimate consumer in a control area during the control period must contain the required 2.0% minimum oxygen content to avoid enforcement action at any point from the CAR to the retailer or the wholesale purchaser-consumer. In classifying product, however, some concern has been expressed about blendstock, gasoline which is destined for export, and gasoline in storage. These are petroleum products that are not standard oxygenated gasoline and would not contain the required 2.0% oxygen content, but which might have a legitimate presence within a control area. As a matter of enforcement policy, EPA expects that a state would not hold a party liable for the possession or transfer of nonoxygenated product downstream of the refiner or importer facility which may arguably meet the regulatory definition of gasoline if the following requirements are met: 1. The product is dearly labeled as ‘blendstock/export/storage ’ and the evidence supports this classification; 2. The accompanying documents clearly state that the product does not comply with the oxygenated gasoline requirements; 10 ------- 3. Some aspect of the product’s quality supports the party’s claim that the product was intended to be further blended before being sold, supplied, etc. as finished product; 4. The seller, supplier, or transporter of the product has obtained a written certification or notice on shipping documents from the buyer/recipient of the product that the buyer/recipient understands that the product is not intended for sale or distribution as finished gasoline in a control area unless or until (a) it is blended to meet the oxygenated gasoline regulatory requirements; (b) the buyer/recipient receives equivalent certification from a subsequent buyer or obtains a written certification that the gasoline will not be sold or dispensed for use within a control area; and 5. The party has no knowledge or reason to believe that the product will not be further blended to comply with the regulatory standards before being sold, supplied or transported as finished product, or that it would be sold or dispensed without further blending within a control area. Registration At least 30 days before the beginning of any control period, any person who sells or dispenses gasoline obtained from a control area terminal, known as a CAR, would be required to register with the state. At the time of registration, every CAR would be required to declare its intention to comply with these guidelines through oxygen credit unit averaging or per-gallon minimum standards. My party which decides it would like to participate in a control area as an averaging CAR, either prior to or after the start of the control period, may do so after submitting a registration application to the state, and recevng the state’s approval. States are encouraged to process the applications, especially those received in mid-season as quickly or possible. When registered by a state, every CAR would receive a CAR identification number, with averaging CARs authorized to conduct oxygen credit unit trades. This registration would be on a form provided by the state, and would contain basic information provided by the owner/operator on the day-to-day operation of the terminal or blending facility from which the CAR operates. The state would have the flexibility to request additional information that it deems appropriate. A valid registration would be a pre-condition for operating as a CAR. From the time any such information becomes inaccurate, the CAR would have 30 days in which to provide an update. The 30-day time period would allow the states sufficient time for the review of applications, while still allowing the CARs the flexibility to join state averaging programs during a control season. Soeciflc Resoonsibilities/Liabilities of Regulated Parties The oxygenated gasoline credit program guidelines impose responsibilities on parties in the gasoline industry which fall generally into four categories: Persons who produce or import gasoline (refiners and importers) are responsible for assuring that gasoline is tested and that the documentation that accompanies the 9asoline accurately reflects the 11 ------- oxygen content. Liability for violations of tnese requirements is for the refiner or importer only. Persons who transport, store or sell gasoline (refiners, importers, bIenders , distributors, resellers, retailers, wholesale purchaser-consumers and) have various responsibilities associated with assuring that only oxygenated gasoline is sold or. dispensed for use in control areas. Persons who transport, store, or sell gasoline downstream from the CAR are responsible for assuring that gasoline intended for sale to retailers or wholesale-purchaser consumers within a control area meets the 2.0% required minimum oxygen specification. Persons who transport, store, or sell gasoline at the terminal or upstream from the terminal are responsible for assuring that the oxygenate content of all gasoline intended for use in a control area, as stated on the accompanying paperwork, is accurate. These persons are also responsible for assuring that all nonoxygenated gasoline sold into a control area for use as a blendstock is sold only to CARs duly registered with the state. Liability for violations of these requirements is for the facility where the violation is found, and for all persons upstream from that facility, except in the case of violations associated with the minimum requirement, which stop at the terminal. Terminal owners and operators are responsible for assuring that the oxygen content of the gasoline they receive, handle or dispense is accurate. CARs are responsible for assuring that gasoline intended for use within a control area, during the control period, meets the 2.0% required minimum oxygen specification; for obtaining the information necessary to assure, if possible, that oxygenated gasoline once accounted for is in fact sold or dispensed in the proper control area; for properly accounting for credits generated, transferred or received; for assuring that the oxygenated gasoline standard is met on the average for each averaging period in each relevant control area; and for submitting reports evidencing compliance. Retailers and wholesale purchaser-consumers are responsible for assuring that gasoline intended for sale during the control period contain at least 2.0% oxygen, by weight. The term responsible for assuring as used above is not meant to imply that a party guarantee compliance at a point downstream from it in the gasoline distribution netwo, k. In fact, elements of various defenses that would be available to regulated parties are discussed below. With respect to those regulatory responsibilities where potential liability exists for parties upstream from the facility found in violation, the guidelines include liability for the operator of the facility in violation and presumptive liability for upstream parties. Under this approach, defenses would be available for each party with presumptive 12 ------- I liability. This is the scheme which is followed under the federal gasoline lead contamination, volatility, and diesel fuel sulfur content regulations.” EPA believes that the principal advantage of the presumptive iiability approach is that it allows identification of the person who caused the violation. EPA is concerned that nonoxygeriated gasoline could be mixed with oxygenated gasoline by any person in the gasoline distribution network, and that it would be difficult or impossible for the state to identity the person responsible for causing this violation. In order to address this difficulty, those persons who actually handle the gasoline, who are in the best position to identify the cause of any violation, must have an incentive to be forthcoming in providing accurate compliance information. EPA believes that a presumptive liability scheme is the most appropriate method of addressing this concern. This is a scheme which is familiar both to EPA and to industry, arid makes the most efficient use of state resources. Under a scheme of presumptive liability there are a number of defenses available to all parties in the oxygenated gasoline distnbution network. In any case in which a refiner, importer, CAR or blender CAR, distributor, reseller or carrier would be liable for a violation detected downstream of its own facility, any party can construct a defense by demonstrating three things: 1) That the violation was not caused by the regulated party or its employees or agents; 2) That the proper documentation accompanied the product and that the documents contain accurate information regarding the oxygen content of the product in question; and 3) In the case of a refiner, importer, CAR or blender CAR, distributor, or reseller, that the regulated party conducts an acceptable sampling and testing program to assure the quality of the product being handled on a regular basis. The idea of a quality assurance program is not unique to these oxygenated gasoline guidelines; the Agency has employed such defense schemes in other fuel programs such as lead phasedown. The Agency feels that the easiest way for a regulated party to prove that it is not liable for violations is through a random sampling and testing program; however, this type of testing is not required for all parties in the gasoline distribution network. Because by definition they never take ownership of the gasoline they handle, carriers will be held to a different standard for liability defense. For refiners, importers, CARs and blender CARs, distributors and resellers, for a quality assurance program to be acceptable to the Agency, the regulated party would See 40 CFR 80.23, 80.27 and 80.29. 13 ------- need to demonstrate that it either conducts the program itself, or commissions an independent testing service to conduct systematic periodic testing of a percentage of the total product handled by that regulated party. The program should be designed to provide an accurate representation of a sample of products handled by the regulated party. The design of these quality assurance programs would be flexible, a matter to be considered by each individual regulated party and the state enforcing its compliance. For the forgoing reasons, EPA has designed a liability scheme for the oxygenated gasoline credit program guidance based upon presumptive liability. EPA believes such an approach will be the most effective and equitable method of placing liability upon the party or parties responsible for causing a violation. The Control Area Resoonsible Party - The Control Area Responsible Parties (CARs) are those parties subject to the average oxygen content standard. To account for oxygenated gasoline credits units, the CAR must know the specific oxygen content of each batch of oxygenated gasoline it has delivered to a control area to be offered for sale or dispensed by a retailer or a wholesale purchaser-consumer dunng the control period. The guidelines direct that there be two potential responsible parties. The first would be the person who owns gasoline which is sold or dispensed over the rack from a control area terminal, or the CAR. A control area terminal is a facility which is capable of receiving gasoline in bulk, i.e. by pipeline or barge, and/or at which gasoline is altered either in quantity or quality. Gasoline which is intended for use in any control area is sold or dispensed into trucks at these control area terminals. The• second potential responsible party would be the person who owns oxygenated gasoline which is sold or dispensed from a control area oxygenate blending facility, or the Blender CAR. A control area oxygenate blending facility is any facility or truck at Which the oxygen content by weight of gasoline intended for use in any control area is altered in any manner other than combining two or more fuels complying with the 2.0% oxygen by weight minimum requirement. The quality or quantity of gasoline is not altered in any other manner, except through the addition of deposit-control additives. All CARS and Blender CARs will be required to register with the state before being allowed to buy or sell oxygenated gasoline or oxygen credit units. Questions have been raised as to the regulatory status of various parties such as a truck blender who blends raffinates or who adds gasoline to an oxygenate blend. The definitions have been expanded to indude these various scenarios. Such blenders would be considered a CAR he sells or dispenses blended gasoline in a control area during a control period since he is altering both the quantity and the quality of gasoline. 14 ------- At gasoline terminals which sell or dispense gasoline for use in a control area, the owner of the gasoline which is sold or dispensed is the CAR. The CAR must know the oxygen content of the gasoline it is dispensing or selling in order to account for the credits or debits generated by that gasoline and to ensure that every gallon complies with the minimum oxygenate requirement of 2.0% oxygen content by weight The CAR would know this inform ticn through receipt of transfer documents from upstream parties, through its own testing as part of a quality assurance program, or by receipt of information on the mathematically calculated oxygen content from the terminal operator in charge of the terminal from which a CARs gasoline was sold. It is the CAR ’s responsibility, at the close of every averaging period, to demonstrate compliance with the average 2.7% oxygen content by weight for the total volume of all gasoline sold or dispensed into any one control area over the course of the entire averaging period. CARs which have chosen to comply with these guidelines through a per-gallon standard would have less of a burden to prove compliance with an oxygenated gasoline program. When any blending of oxygenates occurs at the terminal, or at another location downstream from the terminal, the responsible party is the Blender CAR. Owners of gasoline who are not registered CARs are permitted to sell gasoline only outside of control areas, or to sell to registered CARs and Blender CARs. Once a Blender CAR has obtained the gasoline, it may add oxygenates to it in order to comply with the average oxygen content standard and the minimum per-gallon oxygenate requirement of 2.0% oxygen by weight. It is the Blender CAR’s responsibility, at the close of every averaging period, to demonstrate compliance with the average 2.7% oxygen content by weight for the total volume of all gasoline it sold or dispensed into any one control area over the course of the entire averaging period. CARs and Blender CARs have the same responsibilities and liabilities. Their responsibilities consist generally of accounting for all oxygen content associated with the oxygenated gasoline which is dispensed into trucks for delivery into any control area during a control period, to ensure that every gallon sold or dispensed for use in the control area meets the 2.0% minimum oxygen requirement, and for submitting reports to the state at the conclusion of each averaging period showing average oxygen gasoline standards were achieved. EPA’s guidelines provide that CARs shall, as part of the reporting requirements, engage either an, internal auditor or an independent certified public accountant (CPA) or firm of CPAS to perform an agreed-upon procedures attestation engagement of the underlying documentation that forms the basis of the reports which are submitted to the state in accordance with the requirements of the guidelines at the conclusion of each annual control period. This requirement is discussed more fully below. 15 ------- The averaging responsibility is located at the gasoline terminals and at blender facilities because, as previously described, they represent the last centralized point in the gasoline distribution network before gasoline is transported by truck to a wide variety of retail locations in the control area. EPA expects that compliance with the averaging requirement at terminals and blending facilities will lead to compliance, on average, by all gasoline dispensed to ultimate consumers in the control area. The centralized nature of the CAR facilities will also allow the averaging requirement to apply to a manageable number of identifiable parties, facilitating implementation and enforcement. Because the 2.7% oxygen by weight requirement is an average to be applied over an entire control area, if a CAR supplies a single control area from more than one terminal, the CAR may combine volumes sold from the respective terminals to satisfy the average oxygen requirement. ft is EPA’s opinion that the owner of the gasoline is in the best position to exercise control over the oxygen content of the gasoline. However, EPA acknowledges that there are various situations where the responsibilities of a CAR may be shifted to another CAR which is in a better position to assume such responsibilities. A CAR would be able to contractually assign its responsibilities under these guidelines to another party who is also a registered CAR by contractually transferring ownership of the gasoline. Thus, a party which owns gasoline but which wishes to reassign its CAR responsibilities (i.e. recordkeeping, reporting, averaging, etc.) to another party better-suited to act as the CAR for the gasoline in question (such as a parther in an exchange agreement) could do so. The assigning CAR would have a zero volume of gasoline to report. In addition, these guidelines allow terminal owners and operators to act on behalf of a CAR by accepting gasoline into the terminal, but not to allow its introduction into commerce unless the proper documentation accompanies it containing information such as oxygen content and volume, or until testing using approved methods has been done to establish the oxygen content. This is designed to assure that the information needed to conduct averaging is available to the CAR. .The terminal owner or operator would also be responsible for conducting a quality assurance program to verify the accuracy of such information. Compliance in the oxygenated gasoline program for CARs is based upon the oxygenated gasoline dispensed into trucks or barges for transport into control areas, plus or minus any credit transfers, and excluding the oxygenated gasoline transferred outside the control area in bulk or to another registered CAR in any control area. Separate compliance determinations must be calculated for every control area served by a CAR, regardless of the number of terminal facilities owned by that CAR which serve the same area. The following is an example of a compliance calculation for a CAR. 16 ------- On day one of the compliance period the CAR received 100,000 gallons of oxygenated gasoline, containing 3.0 percent by weight oxygen. The credit status of this batch of gasoline is calculated as follows: Actual Oxygen Content Units = weight percent X gallons 3.0 X 100,000 = 300,000 actual oxygen content units The CAR received a total of three other shipments of oxygenated gasoline during the compliance period, which had the following oxygen contents: Batch Gallons % Oxygen Oxygen Content Units 2 100,000 2.0% 200,000 3 100,000 2.3% 230,000 4 100,000 2.9% 290,000 In this example, the CAR had no bulk transfers of gasoline to another control area, or to any non-control areas. Also, it is assumed that all the gasoline associated with these four batches was sold or dispensed in this same control area during the same control period. Therefore, the four batches of gasoline received constituted the total gasoline which was relevant to the oxygenated fuel compliance determination. To determine compliance, the CAR compares the required total oxygen credit units to the actual oxygen credit units which resulted from the gasoline sold or dispensed into the control area. The required oxygen credit units are calculated by multiplying the averaging standard times the total volume in gallons. The averaging standard is 2.7 weight percent oxygen, meaning that in this example, the resulting required total content of oxygen is: 2.7 X 400,000 gallons = 1,080,000 oxygen credit units The actual oxygen credit unit total is compared to this required total. In this example the actual total is 1,020,000 oxygen credit units, which is 60,000 oxygen credit units less than the required total. As a result, the CAR must obtain 60,000 oxygen credit units generated by another CAR in the same control area and averaging period in order to achieve compliance. For each control area served by a CAR, calculations such as these must be computed. 17 ------- The next sample calculation demonstrates how a CAR or terminal operator will compute the running weighted average oxygen content of a single bulk tank out of which oxygenated fuel is sold or dispensed into any control area. These calculations shall be used by a CAR or terminal operator who receives oxygenated gasolines of varying oxygen content during the compliance period, and stores them all in the same tank. This example is unlike the one above which would require that each shipment of oxygenated fuel be handled separately. On day one of the control period, the CAR has 400,000 gallons of oxygenated gasoline in a tank, which contains 2.0% oxygen by weight. No gasoline is sold or dispensed out of this tank on day one, and on day two, the CAR receives another 100,000 gallon shipment of oxygenated gasoline, this time containing 2.4% oxygen by weight. The running weighted average oxygen content of this tank, now containing 500,000 gallons of oxygenated gasoline, would be calculated as follows: 2.0 X 400,000 = 800,000 oxygen credit units 2.4 X 100,000 = 240,000 oxygen credit units The average running weighted average oxygen content is found by dividing the total oxygen credit units in the tank by the number of gallons of oxygenated gasoline in the tank: 1040,000 divided by 500 000 = 2.08 Therefore, the running weighted average oxygen content of this tank is 2.08% oxygen by weight. This calculation is a simplification. It assumes that the amounts of gasoline entering and leaving a tank can be easily accounted for, and that the different oxygenate-containing gasolines will mix uniformly in the tanks. In reality, some tanks are capable of recevving and dispensing gasoline at the same time. Also, there may be some stratification of the oxygenate levels within a tank. But because the Agency feels that there will be few instances of terminal storage tanks receiving gasolines of different oxygenate and oxygen contents, the RWOC system is the most appropriate method. To continue the example, on day three the CAR dispenses 5 separate batches of 10,000 gallons of oxygenated gasoline each from this tank into 5 separate trucks, for a total of 50,000 gallons dispensed into the control area. The gasoline in these trucks has an oxygen content of 2.08% by weight, based on the calculation above. These withdrawals leave 450,000 gallons of oxygenated fuel in the tank. After dispensing this gasoline, the tank receives a shipment of 200,000 gallons of oxygenated gasdine containing 2.7% oxygen by weight, bringing the total gallonage 18 ------- in the tank up to 650,000 gallons. The running weighted average oxygen content of the tank after this addition would be calculated as follows: 2.08 X 450,000 = 936,000 oxygen credit units 2.70 X 200,000 = 540,000 oxygen credit un s 1,476,000 divided by 650,000 = 2.27 Therefore, the running weighted average oxygen content of the tank after both the dispensing of the 50,000 gallons and the addition of the 200.000 gallons of 2.7% gasoline is 2.27% oxygen by weight. Any gasoline subsequently dispensed into trucks would have an oxygen content of 2.27% by weight. The next example is a compliance calculation which would be used by a blender CAR. On day one of the compliance period the blender CAR received 900 gallons of gasoline containing 0.0% oxygenate by volume. The blender CAR then added 100 gallons of ethanol, bringing the total volume of gasoline to 1000 gallons, the oxygenate volume percentage up to 10.0% and the oxygen content by weight up to 3.5%. The credit status of batch 1 of gasoline is calculated as follows: Actual Oxygen Credit units = weight percent X gallons 3.5 X 1,000 = 3,500 oxygen credit units The blender CAR had a total of three other shipments of oxygenated gasoline during the compliance period, which had the following volumes and oxygen contents after the blender added oxygenate to the products: % Oxygen Batch Gallons when dispensed Oxygen Credit Units 2 1,000 3.5% 3,500 3 1,000 2.2% 2,200 4 1,000 2.7% 2,700 In this example, the blender CAR had no transfers of gasoline to another control area or to any non-control areas. Jso, it is assumed that all the gasoline associated with these four batches was sold or dispensed in the same control area during the same control period. Therefore, the four batches of gasoline received constituted the total gasoline which was relevant to the oxygenated fuel compliance determination. To determine compliance, the blender CAR compares the required oxygen credit unit total to the actual oxygen credit unit total which resulted from the addition of ethanol to the gasoline which was sold or dispensed into the control area. 19 ------- The required oxygen credit unit total is calculated by multiplying the averaging standard times the total volume in gallons The averaging standard is 2.7 weight percent oxygen, meaning that in this example, the resulting required oxygen credit unit total is: 2 7 X 4,000 gallons = 10,800 oxygen credit units The actual oxygen credit units total is compared to this required total. In this example, the actual total is 11,900 units, which is 1,100 units more than the required total. As a result, the blender CAR may transfer 1,100 oxygen credit to another CAR or blender CAR in the same control area and averaging period. Attestation Engagements EPA’s guidelines provide that each CAR which engages in credit averaging shall, as part of the reporting requirements, engage a certified public accountant (CPA) or firm of certified public accountants to perform an agreed-upon procedures attestation engagement of the underlying documentation that forms the basis of the reports, in accordance with the requirements of the guidelines, at the conclusion of each annual control period. These guidelines permit the use of two different types of auditors: 1) Internal auditors may be used in certain situations. Many large companies may have internal auditors on staff who may perform the attestation engagements required under these guidelines. Internal auditors may perform these duties provided they are either Certified Internal Auditors (CIAs) or members in good standing of the Institute of Internal Auditors, Inc. (IIA). As such, the internal auditors will be bound by the hA’s Standards for the Professional Practice of Internal Auditing. This requirement is intended to guarantee a number of things: That the internal auditor is independent of the activities being audited under these guidelines; that the internal auditor is objective and proficient is his or her profession; and that the internal auditor is bound by a code of professional ethics. 2) When internal auditors meeting the criteria discussed above are not available within the CAR’s organization, an independent CPA or firm of independent CPAs must be used to perform the attestation engagement required under these guidelines. Regardless of whether an internal auditor or a CPA is used by a CAR, attestation engagements would be conducted in accordance with the applicable professional standards following agreed upon procedure contained in these guidelines. These guidelines cover a wider range of services than the audit of historical financial statements. EPA has worked closely with the AICPA and industry in establishing these procedures which will accurately and efficiently provide the intended compliance information in the most cost-effective manner. The llA is supportive of 20 ------- these procedures as well. These attestation engagements are not intended as substitutes for enforcement audits conducted by the state, but are intended to serve as a means of improving compliance with the oxygenated gasoline program by identifying problem areas to the regulated parties. Such attestation engagements will assure regulated parties that their records will be reviewed and cross-checked for accuracy by a third party. They will lead te the correction of simple arithmetic errors and will help to clarify the regulatory requirements. And importantly, they will deter the submission of false reports. EPA’s guidelines provide that annual attestation engagements be conducted by an internal auditor or a CPA with the report submitted by the CAR to the state no later than 120 days following the end of the control period. Submission of the auditors or CPA’s report by the CAR to the state is required, and failure to meet this requirement would constitute a reporting violation by the CAR. EPA intends to develop standardized CAR-reporting forms for the state to adopt as a means of enhancing uniformity and consistency in the attestation engagement and agreed-upon procedures. Drafts of these CAR-reporting forms have been sent to those states that have expressed an interest in establishing an averaging program and have been placed in Docket A-91 -04. EPA believes that the objectivity of the attestation engagement, whether performed by internal auditors or independent CPAs, is important for the effective enforcement of the oxygenated gasoline program. This obiectivity will help to ensure accurate accounting of oxygen content and gasoline volumes. In response to comments, EPA has made several changes that should significantly reduce the costs of these attestation engagements. These changes are: a) the use of specific ‘agreed- upon procedures; b) the use of internal audit staff, as appropriate and consistent with both the VA Standards for the Professional Practice of Internal Auditing and the AICPA Statement on Standards for Attestation Engagements; c) the use of audit sampling; and d) requiring the report to be submitted in 120 days instead of 60 days after the end of the control period. In order to maintain consistency within the process EPA specifies the following credentials for the CPAs to be chosen by the regulated parties, and provides the following minimum guidelines to be followed in each attestation engagement. (1) Credentials of internal auditors or CPAs. The guidelines 21 ------- require that the attestation engagements be conducted by either internal auditors or independent CPAs and that attestation engagements are to be conducted in accordance with either the Codification of Standards for the Professional Practice of Internal Auditing or the Statement on Standards for Attestation Engagements, respectively. In general, the attestation standards deal with the need for technical competence, independence in mental attitude, due professional care, adequate planning and supervision, sufficient evidence, and appropriate reporting. EPA’s guidelines, in stating that the attestation engagements be performed in conformity with the above-referenced standards, anticipate that the internal auditors and CPAs will perform all of the required engagement procedures. EPA also expects that the internal auditors and CPAs will document the procedures and findings with working papers, consistent with’the applicable standards. (2) Attestation Guidelines in General. The guidelines contain a listing of the general types of standard industry records which are required to be included in the CPA’s attestation engagement procedures. The CAR shall, as part of the reporting requirements, conduct an attestation engagement. This engagement shall be performed by either an internal auditor or a CPA or a firm of CPAs. This attestation engagement will study the underlying documentation that forms the basis of the reports, in accordance with the requirements of the guidelines, at the conclusion of each annual control period. In performing the attestation engagement, the CPA should determine the sample size for each population to which agreed-upon procedures will be applied in such a manner that a sample size is equal to that which would result by using the following sampling parameters: Number in Population (N) Sample Size 66 or larger 59 41-65 41 26-40 31 0 - 25 N or 24, whichever is smaller The number of populations from which samples should be drawn will vary depending on the circumstances. Sample items should be selected in such a way that the sample can be expected to be representative of the population. If the internal auditor or CPA agrees to use some other form of sample selection and some other method to determine the sample size, that agreement should be summarized in the internal auditor’s or CPA’s report. 22 ------- In the case of an independent CPA, while an CPA should be required to issue the attestation engagement reports called for by the guidelines, nothing shall preclude the CPA from requesting assistance from the CAR’s internal auditors in accordance with the Statement on Standards for Attestation Engagements. (3) Attestation Engagement Guidelines for Control Area Responsible Parties. It is EPA’s belief that many CARs will also be terminal operators. However, not all CARs will be terminal operators and therefore all CARs may not have access to some of the records referenced below. For example, a non-terminal operator CAR will likely not possess records showing the oxygen content of gasoline entering the terminal. The requirements applicable to non-terminal operator CARs and blender CARs would therefore be less exhaustive than those listed below. These parties would have to demonstrate the basis of their compliance calculation. Following is a listing of the records each CAR should maintain: 1. Records which show the quantity and oxygen content of oxygenated gasolineentering the terminal and leaving the terminal in bulk; 2. Records which show the destination, quantity and oxygen content of truckloads of oxygenated gasoline going to specific control areas; 3. Records which show the oxygen content of gasotine in storage tanks from which trucks are loaded, and the calculations which formed the basis for claimed oxygen content; 4. Testing results for storage tanks when additional gasoline is added; 5. Records showing the oxygenate type and amount which was blended; and 6. Records which show the beginning and ending inventories and oxygen contents of all gasoline and oxygenate storage tanks involved in the oxygenated gasoline program. Terminal operators normally prepare daily operations summaries for the volumes of each tank’s inventory balances (beginning and ending), transfers in and transfers out. Daily reports are supported by pipeline meter tickets, truck tickets, and tank gauging reports. These daily reports are then summarized by month or quarter. The chemical characteristics of the product stored or moved into or out of each tank are based on periodic laboratory analysis or certificates of analysis from the supplier. In order to comply with the guidelines, laboratory reports (or summaries thereof) currently in use must be revised to document more fully the oxygen content of the oxygenated gasoline, and to provide a method of averaging these characteristics. Compliance with the minimum 2.0% oxygen by weight requirement must be strictly monitored. The exact form of the detailed or summary reports has not yet been determined, but the prudent terminal operator will likely perform computer analysis and summarization of the data. These reports will also be the basis for calculating 23 ------- compliance with the oxygen standard, and determining the amount of credits generated or required. Special circumstances for terminals will likely require special data to be collected in order for the CAR to demonstrate compliance, credit generation, or debit generation. Each CAR is responsible for assuring that such data is available. (4) CAR Reporting Forms. The guidelines provide that the internal auditor’s or CPA’s agreed-upon procedures be applied to standardized forms provided by the state. Refiners and Imoorters Refiners and importers are responsible for determining the oxygen content of all gasoline produced or imported. This determination must be made separately for each batch of gasoline. The importance of correctly determining the oxygenate content of each batch of gasoline is that this parameter must be known when the gasoline arrives at the control area where it will be dispensed. The shipping documents which accompany each batch of gasoline down the distribution chain must specify the oxygenate and oxygen contents associated with each shipment of gasoline. In this manner, the person who brings the gasoline into the control area where it is intended to be used knows the oxygenate and oxygen contents for which an accounting must be made. An effective state oxygenated gasoline program would include state inspections and audits of gasoline refiners and importers. The purpose of these inspections and audits is to collect and analyze samples of gasoline stored at the refinery or import facility to determine if the gasoline has been properly tested and classified. In addition, the states shall audit testing records for oxygenated gasoline previously produced or imported for proper classification and oxygen content. To facilitate these audits EPA’s guidelines provide that refiners and importers be required to retain copies of documents which demonstrate that appropriate sampling and testing was conducted to support the oxygen contents claimed. The guidelines also provide that refiners and importers retain copies of documents which describe the purchase or production of oxygenated gasoline as additional support for oxygen content. These records are to be retained at the refinery or import facility if practicable, or at the business office of the refiner or importer. EPA recommends that states establish a record retention requirement which coincides with their relevant statutes of limitations for enforcement of their oxygenated gasoline programs. Where a violation is found at a refinery or an import facility the refiner or importer would be solely liable. The refiner or importer would have no specified 24 ------- defense where the violation is discovered at that facility other than to contest the existence of the violation. EPA’s guidelines provide that in cases where gasoline produced or imported by a refiner or importer is found downstream from that party for which the oxygen content of the gasoline is improperly stated, the refiner or importer will be presumptively liable for these violations. The rationale for this presumption is discussed above. The refiner or importer will be able to avoid liability W it could demonstrate that it did not cause the violation and that the results of tests performed by the refiner, importer or blender on the gasoline show that the proper classification and oxygen content of the gasoline was recorded when it left the control of the refiner or importer. In cases where gasoline which is identified by the corporate, trade or brand name of a gasoline refiner is improperty classified or for which the oxygen content is improperly stated, the guidelines provide that the named refiner be presumptively liable. This liability would attach regardless of who actUally produced or imported the gasoline (e.g., the named refiner would be presumptively liable even though the gasoline was obtained by the named refiner from another refiner through an exchange agreement). In order to avoid liability in this situation, these guidelines specify that the named refiner must show the following: (1) Records of test results for the gasoline when it was produced or imported showing the oxygen content; and (2) The violation was caused by action(s) of someone other than the refiner or its employees or agents; and (3) The violation was caused by an act in violation of law, or an act of sabotage or vandalism; or (4) The violation was caused by an act which was in violation of a contractual obligation designed to prevent such violations which was imposed by the refiner on the party operating under the refiner’s brand name, and despite periodic sampling and testing by the refiner to assure compliance with the contractual obligations; or (5) The violation was caused by the act of a carrier or other distributor engaged by the refiner for transportation of gasoline but with whom the refiner did not have a contractual relationship, despite efforts by the refiner (such as a periodic sampling and testing) designed to assure that violations do not occur. This refiner’s defense for violations found at branded facilities is closely modeled upon the enforcement schemes followed in the federal gasoline lead contamination, volatility, and diesel fuel sulfur content regulations. 25 ------- Distributors EPA believes that gasoline distributors should be responsible for ensuring that gasoline sold, dispensed, transported or stored by a distributor downstream of the terminal is properly characterized as either oxygenated gasoline or nonoxygenated gasoline. Distnbutors would be prohibited from selling, storing or transporting gasoline intended for use in a control area during the control period which does not meet the 2.0% minimum oxygen content requirement. Distributors would not be prohib ed from storing nonoxygenated gasoline within the control area as long as it is intended for sale in a non-control area or is intended for sale outside of the control period or is to be used for blending with ethanol and is properly segregated and labeled. If the fuel is intended for use in the control area and is to be sold or dispensed after the end of the control period in the control area then the storage tank should remain segregated until that time. EPA’s guidelines provide that a distributor downstream of the terminal should be liable for violations of the above requirements found at the distributor’s facility. In addition, the guidelines specify that distributors should be liable for such violations found at facilities downstream from the distributor, which could include facilities operated by other distributors, downstream carriers, retailers and/or wholesale purchaser-consumers. In the case of oxygenated gasoline which is sold, transported, or stored between the refinery or import facility and a control area terminal, these guidelines provide that distributors have the additional responsibility of ensuring that their gasoline conforms to the oxygen content which is stated in the paperwork which accompanies the gasoline. In EPA’s guidelines, distributors would be liable for violations of this requirement found at the distributor’s facility, and for violations found between the distributor and the control area terminal or oxygenate blending facility. Under EPA’s guidelines, the distributor upstream of a control area terminal or oxygenate blending facility could avoid liability for the above requirements if it could show: (1) that it or its employees or agents did not cause the violation (e.g., by showing causation elsewhere); (2) possession of documents required to accompany the gasoline, such as invoices or bills of lading, which contain the information required by paragraph (h) of the guidelines; and (3) evidence of a quality assurance sampling and testing program carried out by the distributor to monftor, when appropriate, the oxygen content. EPA believes that when gasoline found at a distributor’s facility is improperly classified or the oxygen content is not properly stated in the accompanying paperwork, persons upstream from the distributor should be presumptively liable for these violations. The upstream parties would include refiners, importers, blenders, carriers and distributors, with the exception that liability associated with the minimum oxygen content requirement would not apply upstream of the control area terminal. 26 ------- Carriers Carriers are distinguished from other distributors in that carriers do not take title to the product they store or transport. As a result of this distinction, carriers traditionally have had liability presumptions and defenses which are different from other distributors under federal fuels enforcement schemes (e.g., volatility, leaded contamination, and diesel sulfur). There are at least two options for ensuring that oxygenated gasoline transported or stored by upstream carriers and downstream carriers conforms to the oxygenated gasoline requirements. One option is to make carriers liable only for violations detected at the carrier’s facility, unless the carrier is able t show that it did not cause the violation. Under this option, carriers would not be presumptively liable for violations found downstream from the carrier’s facility, unless it can be shown that the carrier in fact caused the violation. This is the traditional approach used for carriers. The second option is to make carriers presumptively liable for violations detected downstream from the carrier. The Agency feels that it is possible for carriers to after the quantity or quality of the product they handle, thereby necessitating some form of quality assurance. A carrier could cause a violation under these guidelines, for example, if its holding tanks were not properly emptied and cleaned between shipments, or if it inadvertently mixed oxygenated gasolines with nonoxygenated gasolines. Carriers would be able to avoid liability by showing that they did not cause the violation, and by showing that the gasoline they transport or store conforms to the accompanying shipping documents. The rationale for the first liability scheme is that carriers normally do not alter the quality of the gasoline they transport or store - in fact, the EPA’s definition of carrier in 40 CFR Part 80 requires that they not after the quality of the gasoline. Under this argument, carriers only transport or store what they are given, and have no control over the product. This approach was found to be most appropriate in the gasoline volatility program because EPA is able to sample and test gasoline at any point downstream from the carrier to determine if the gasoline conforms to the standard. When violations of the applicable volatility standard are found, EPA normally is able to gather enough facts to establish who caused the violation, thus deterring future violations. Because carriers by definition do not alter the quality or quantity of the gasoline, and because an extensive testing requirement would be an undue burden on the industry, EPA believes that applying presumptive liability to carriers is not appropriate. Retailers and Wholesale Purchaser-Consumers 27 ------- The guidelines provide that during the control period, retailers and wholesale purchaser-consumers in CO nonattainment areas are prohibited from selling or dispensing gasoline that has less than the required 2.0% minimum oxygen for use in a control area. Retailers and wholesale purchaser-consumers would be liable for violations of the above requirements found at their facilities. Under various federal fuels enforcement schemes, retailers and wholesale purchaser-consumers have been able to avoid liability by showing they did not cause the violation. The same shall hold true for these guidelines, so long as the facility also has retained all documents which accompanied the gasoline in question. Product Transfer Documentation Under these guidelines, on each occasion physical custody or title of gasoline transfers from one party to another (other than when gasoline is sold or dispensed for use by the ultimate consumer at a retail outlet or wholesale purchaser-consumer facility), certain information shall be exchanged to facilitate administration and enforcement. This information should be recorded either on a separate transfer document or through the addition of the required information to paperwork which already accompanies the shipment of gasoline. This information should include the following: - a. The date of the transfer; b. The name and address of the transferor; c. The name and address of the transferee; d. The volume of gasoline which is being transferred; e. The proper identification of the gasoline as nonoxygenated or oxygenated; f. The location of the gasoline at the time of the transfer; g. The type of oxygenate; and h. The oxygen content of the gasoline, and for transfers upstream of the control area terminal and for transfers between CARs, also the oxygenate volume of the gasoline. Recordkeeping and Reporting All CARs should be required to maintain reports containing compliance information. Parties which have selected the option of meeting the standard on a per-gallon basis would be required to maintain a basic set of information. The records kept by these parties would be much simpler than those the guidelines require of averaging parties. Information to be recorded would include data on product received by the party (for example, the date the product was received, the source of the shipment, the type of product received, the total volume of the shipment), and data on the product sold or supplied by the party (for example, the date the product was sold or supplied, the type of product sold or supplied, the total volume of the shipment, the name of the person to whom the product was sold or supplied, the oxygenate content, and the oxygen 28 ------- content of the product). Parties which have selected the option of meeting the standard on an average basis would be required to maintain more detailed information because of the greater complexities of demonstrating compliance when averaging and credit trading are involved. Information to be recorded would include data on product received by the party (for example, the date the product was received, the source of the shipment, the type of product received, the total volume of the shipment, and the results of any tests performed), data on the product sold or supplied by the party (for example, the date the product was sold or supplied, the type of product sold or supplied, the total volume of the shipment, the name of the person to whom the product was sold or supplied, the oxygenate content, and the oxygen content of the product). In addition, the party would also be required to calculate the average oxygen content of its product based on such information and according to the procedure outlined above. In addition to the information detailed above, CARS engaging in trading oxygen credits during a control period would be required to supply additional information in their reports. Such information should include the name, CAR identification number and address of the other party in each trade and the quantity of oxygen credits (volume and oxygen content of gasoline) traded. The party selling or otherwise transferring oxygen credits shall demonstrate how the credits.in question were calculated. The party buying or otherwise receMng oxygen credits would be required to calculate its compliance with the regulatory standard through the use of these credits. Both parties to an oxygen credit trade would submit documentation to the state which is adequate to demonstrate their mutual agreement to the trade and to transfer the credits no later than 30 working days after the close of the averaging period for which the trade is reported. A contract signed by both parties no later than 30 days after the close of the relevant averaging period would be sufficient for this purpose. A purported trade would not be recognized as valid unless both parties have reported and adequately documented it. Persons who own control area terminals but who do not own the gasoline which is dispensed from those terminals are not subject to the averaging standard. These terminal operators would be required to maintain records. These records would have to include information on the ownership, volume, and oxygen content of gasoline sold, dispensed or transported during each averaging period, and the location to which it was transported and whether it was within a control area or not. Such records would provide a partial cross-check on reports submitted by persons subject to the regulatory standard. All parties subject to these recordkeeping requirements should be required to retain these records for the period of time established by the state. The records should be available for appropriate state review, even if the party is not required to submit information to the state. For all records, the state would have the authority to 29 ------- determine whether any record should be recognized as meeting regulatory requirements or not. The only parties which would be required to send in compliance reports to the state are the CARs. No later than 30 days after the close of the averaging period, each CAR should submit a report to the state evidencing compliance and detailing its purchases, shipments, sales, and credit accounting for the averaging period in question. Aiso, no later than 120 days after the close of the averaging period, each CAR should submit an internal auditors or CPA ’s attestation engagement report in accordance with these guidelines. SamDlino and Testing Methodologies The sampling methodologies recommended for oxygenated fuels programs are, in part, the same as those set forth at 40 CFR Part 80, Appendix D relating to sampling procedures for fuel volatility. In these guidelines, the Agency is identifying two separate testing methods for eventual use with these oxygenated gasoline guidelines. The American Society for Testing and Materials (ASTM) standard test method, Designation D 4815-89, is presently the most widely-used method for the determination of alcohols and MTBE in gasoline by gas chromatography. This test method covers a procedure for determination of methanol, ethanol, isopropanol, n-propanol, isobutanol, sec-butanol, tert-butanol, n-butanol, and methyl tertiary butyl ether (MTBE) in gasoline by gas chromatography. However, it does not currently have the capability to detect the presence of some of the heavier oxygenates in gasoline, one example being TAME, although ASTM is planning to extend the scope to include up to 15% MTBE by volume and 17% TAME by volume. Adaptation of the method 4815 for ETBE analysis is straightforward and merely requires a change of internal standards. An additional shortcoming of ASTM D481 5-89 is that many states which have already implemented oxygenated gasoline programs have found the ASTM precision standards to be inadequate because of large variations in accepted oxygen level measurements. ASTM is currently focusing on both of these issues, and although a revised test method is not yet available for industry use, the ASTM committee has allowed EPA to. publish a working final draft of the revised test method, ASTM D-4815-9X. This method has an expanded range of oxygenates which ft can test and it will yield results in terms of mass percent oxygen. This draft is induded in these guidelines as Appendix B. This draft has not yet been finalized by the ASTM committee, and there are sure to be some minor changes, but is included as part of this notice in order to give advance EPA approval for the soon-to-be finalized method. Until this method is finalized, ASTM D4815-89 is still in effect. ¶2 12 For ASTM D—4815—89, 57 FR 4437 (February 5, 1992). 30 ------- Also in reaction to the shortcomings of ASTM D481 5-89, EPAs laboratory in Ann Arbor, Michigan has developed an alternative testing methodology. This method is a single column, direct injection gas chromatographic procedure for quantifying the oxygenate content of gasoline. Unlike the current ASTM method this method can be used to detect all types of oxygenates in gasoline. This method is included in these guidelines as Appendix C. The Agency believes that the EPA test (OFID) has various advantages over the ASTM method, and is therefore preferable. The Agency anticipates it to be more accurate and easier to conduct. Like the new ASTM method, the OFID method will be calibrated to yield its results in terms of the mass percent oxygen contained in the fuel blend being analyzed, which is simpler to convert into the unit of measurement of the statutorily mandated standard than volume percent oxygenate is. This fact will eliminate the need for the detailed conversions described in the section below, Oxygen Content Conversions. However, at this point in time the EPA OFID test is new, and industry is understandably apprehensive about adopting a relatively new test. These guidelines therefore specify that either the ASTM test method or the OFID method may be used. This will allow the regulated parties to use equipment they may already possess, and a test method with which they are already familiar. Nevertheless, the Agency would like to strongly recommend use of the Ann Arbor method. In addition to the approval of these two testing methods, EPA would like to establish a procedure whereby additional testing methods may be approved by the Agency. EPA recognizes that there are many potential tests for use in the detection of oxygenates to gasoline, and would like to encourage the development of even newer and more efficient methods. The Ann Arbor lab has already begun evaluating some alternative laboratory methods, as well as some oxygenate screening devices which may be useful in the field. Therefore, the Agency shall work on creating a procedure for the evalua on and approval of other oxygenate tests. The ASTM method contains precision information for the volume percent of various oxygenates that varies as a function of the volume of oxygenate being measured. The Agency plans to use a single testing tolerance for ethers and alcohols that represents the predominant volume of these oxygenates that is expected to be used to comply with the oxygen content requirements. The use of a single testing tolerance for each oxygenate will simplify enforcement. This tolerance, as mandated by the Act, section 211 (m)(2)(B), will be established by the Administrator. Oxygen Content Conversions An issue has been raised concerning the ability to accurately determine the oxygen content c i gasoline when oxygenates are added by volume (usually downstream of the refinery). This is a concern because as the specific gravity (or 31 ------- density) of the base gasoline varies, the weight fraction of oxygenate (and oxygen) varies for any specific oxygenated gasoline blended. Hence, two blends of oxygenate could result in differing oxygen weight fractions if the specific gravity of the base gasolines for the two blends differ. Typically, oxygenates are blended with gasoline volumetrically. For example, a len percent ethanol blend typically refers to a volume percent. The standards of an oxygenate program as delineated in the Clean Air Act Amendments are in terms of weight percent oxygen. Technically, in order to calculate the weight percent oxygen in the oxygenate blend, several factors must be taken into consideration. These are: temperature and specific gravity of the oxygenate and the gasoline, and, for ethanol, the amount of denaturant, which is some fraction of the volume ethanol added to the gasoline. Elsewhere in these guidelines, it is stated that standard temperature will be 60 degrees Fahrenheit. In order to calculate the weight percent oxygen in the blend, the weight percent oxygenate must be calculated. Accordingly, to calculate the weight percent oxygenate from volume percent oxygenate, specific gravities of the oxygenate and the blend must be taken into consideration. (Specific gravities (or densities) as well as weight percent oxygen in the oxygenate may be found in Table 1 for common fuel oxygenates.) Table 1. Specific Gravity and Weight Percent Oxygen of Common Oxygenates Oxygenate Weight fraction oxygen Specific Gravity at 60 deg F methyl alcohol 0.4993 0.7963 ethyl alcohol 0.3473 0.7939 normal propyl alcohol 0.2662 0.8080 isopropyl alcohol 0.2662 0.7899 normal butyl alcohol 0.2158 0.8137 isobutyl alcohol 0.2158 0.8058 secondary butyl alcohol 0.2158 0.81 14 tertiary butyl alcohot .0.2158 0.7922 methyl tertiary butyl ether (MTBE) 0.1815 0.7460 tertiary amyl methyl ether AME) 0.1566 0.7752 diiso propyl ether (DIPE) 0.1566 0.7300 ethyl tertiary butyl ether (ETBE) 0.1566 0.7452 32 ------- The following equation describes the conversion from volume percent oxygenate to weight percent oxygenate: w oxyg.nac . 11 xygenace oxygenate d bi Where W = weight fraction (for percent, multiply by 100) oxygenate = oxygenate in the blend bi = blend V = volume fraction d = specific gravity. The specific gravity of the oxygenate is known (see Table 1) and, the specific gravity of the blend has been measured and is, therefore, known, the calculation is straightforward. If, however, the specific gravity of the blend is unknown, it can be estimated as the volume weighted contribution of the specific gravities of the gasoline to which the oxygenate is added and the oxygenate itself: d ( VgasXdga.) + ( Vg .Xd yg.nice) (2) Where gas = gasoline to which oxygenate is added. The weight fraction of oxygen in the blend is simply the product of the weight fraction of oxygen in the oxygenate (from Table 1) and the weight fraction of oxygenate in the blend. Therefore, the weight fraction of oxygen in the blend is: WQJgyg•fl = W 0 j(yg•fl •X W0 yg• 0jyg• . (3) Where oxygen/oxygenate = oxygen in the oxygenate. Substituting equations (1) and (2) in equation (3), results in: 33 ------- w = (4) oxygen (V xd ) • ( V xd gas gas oxygenace or,’genace For blends with more than one oxygenate, the equation becomes: w E(_Vo yg. cexd,gena exW ygeniaxygenate) (5) oxygen (V xd ) +1( V xd gas gae oxygenac. oxyg.naCe The following examples demonstrate use of the equation: Question 1: Suppose nine gallons of neat ethanol are blended with 91 gallons of gasoline to make 100 gallons of ethanol blend gasoline. The specific gravity of the gasoline is 0.74. What is be the weight percent oxygen in this blend? Answer 1: In this case, the volume fraction of ethanol is 0.09 and the volume fraction of gasoline is 0.91. The specific gravity of neat ethanol (from Table 1) is 0.7939 and the specific gravity of the gasoline is stated to be 0.74. Hence, the weight fraction of oxygen can be calculated using equation (4) as follows: w = O.09x0.7939x0.3473 (6) ° ‘ (O.91x0.74)+(O.09x0.7939) W ,,=O.O333 (7) Therefore the weight fraction of oxygen in such a blend is 0.0333 or 3.33 percent: Question 2: Suppose 1000 gallons of MTBE are blended with 6000 gallons of gasoline to make 7000 gallons of MTBE blend gasoline. The specific gravity of the gasoline is 0.75. What is be the wei ht percent oxygen in this blend? Answer 2: In this case, the volume fraction of MTBE is 1000/7000 or 0.1429 and the volume fraction of gasoline is 6000/7000 or 0.8571. The specific gravity of neat MTBE (from Table 1) is 0.7460 and the specific gravity of the gasoline is stated to be 0.75. Hence, the weight fraction of oxygen can be calculated using equation (4) as follows: 34 ------- upper bound (assuming the vast majority of samples lie within this range), a range of oxygen weight percents can be calculated for an upper end, lower end, and average gasoline specific gravity using equation (4). Table 2 shows the results of such an analysis and includes an analysis if one assumes the volume fraction of ethanol and the weight fraction of ethanol to be equal. Table 2: Oxygen Weight Percents Based Upon Gasoline Specific gravity Ethanol: 10 volume %/No denaturant Description Gasoline Specific gravity Weight % Oxygen W % eth = V % eth 0.7939 3.47 High End Specific gravity 0.7686 3.58 Average Specific gravity 0.7420 . 3.69 Low End Specific gravity 0.7155 3.81 If the assumption is made that 5 percent by volume of the ethanol is denaturant (i.e., 0.5 percent by volume of the final blend is denaturant) and therefore the ethanol volume contribution to the final blend is 9.5 percent, the following results apply: Descnption Gasoline Specific gravity Weight % Oxygen W% eth = V % eth 0.7939 3.30 High End Specific gravity 0.7686 3.40 Average Specific gravity 0.7420 3.51 Low End Specific gravity 0.7155 3.62 Although the Agency believes that little blending of oxygenates other than ethanol is performed at the terminal, a similar analysis could apply for MTBE and/or other oxygenates. However, for oxygenates other than ethanol, the denaturant consideration is not applicable. Table 4 shows such an approach for a 15% MTBE blend. Table 3: Oxygen Weight Percents Based Upon Gasoline Specific gravity Ethanol: 9.5 volume %/Denaturant: 0.5 volume % 36 ------- Table 4: Oxygen Weight Percents Based Upon Gasoline Specific gravity MTBE: 15 volume percent Description Gasoline Specific gravity Weight % Oxygen W% MTBE = V% MTBE 0.7460 2.72 High End Specific gravity 0.7686 2.65 Average Specific gravity 0.7420 2.73 Low End Specific gravity 0.7155 2.81 Since the Agency believes that oxygenates blended at the terminal are blended volumetrically and that most gasolines should be near the average specific gravity listed above and most ethanol blends do contain 0.5 percent by volume denaturant, Table 3 is most appropriate for 10 percent ethanol blends. Therefore, utilizing the average gasoline row from Table 3, the appropriate level of oxygen associated with a 10 percent (by volume) ethanol blend is best estimated to be 3.51 weight percent. Thus, the Agency proposes that one alternative for determining the oxygen content for terminal-blended ethanol-gasoline blends is to simply assume a 3.51 weight percent oxygen based on the above analysis. Likewise, for a terminally blended 15 percent (by volume) MTBE blend, the appropriate oxygen content would be 2.73 weight percent. For other volumes of these or other oxygenates, a terminal blender may simply substitute the appropriate values above for average gasoline specific gravity and the values in Table 1 in equation 4 to calculate the appropriate oxygenate level. As mentioned previously, for refinery blended oxygenates, the actual measured specific gravities should be utilized. The second alternative available to the terminal blender would be to actually measuring the appropriate specific gravities. This option would benefit any blender who feels that he is using a base gasoline which will result in a higher oxygen content by weight when tested than would be found through use of the above calculations. Although there has been some comment on the possibility that some blenders may manipulate this choice in order to always obtain the most favorable oxygen levels, the Agency believes that the time and money associated with the performance of these tests should discourage any party from testing every batch of gasoline, then using the more favorable number in its records. The Agency feels that most parties will opt to rely on the calculations presented here. Purity and Oxygen Content Because many parties in the gasoline distribution network will be relying on the written records they receive from other parties in the network in order to determine the amount of oxygenate contained in the fuel they offer for sale, sell, store, or dispense, the issue of purity is an important one. Fuels must not be represented as containing more oxygenate than they actually do. The calculations provided above assume that 37 ------- on the average, 0.5% of any 10% ethanol by volume blend is denaturant, making the ethanol volume contribution to the final blend 9.5%. Therefore, based on the Table 3 calculations, for terminal-blended ethanol gasolines one option is to simply assume a 3.51% oxygen by weight. The terminal operator or Blender CAR would always have the second option available, which is to actually measure the appropriate specific gravities. In either case, the purity should be noted on any records and transfer documents created by the CAR. Blending Allowance In order to allow for the dilution of oxygenates during transport and storage and for the varying nature of the density of gasoline, the Agency is recommending the use of a blending allowance for the measurement of all oxygenates which fall under the •Substantially Similar (‘sub sim’) Interpretive Rule.’ 3 The allowance will permit the blending of gasoline at levels 0.2% percent oxygen by weight higher than allowable under the ‘sub sim’ interpretive rule. This allowance is desirable from a practical standpoint since the requirement for program areas and the legal maximum under ‘sub sim’ are the same (2.7% oxygen by weight). It will compensate for the dilution of some oxygenates during transport and storage, providing some flexibility to gasoline producers who are likely to blend gasoline at points upstream from terminals and transport it to the terminal and to gasoline blenders at the terminal level. It is important to note that this allowance applies only to oxygenates blended under ‘sub sim.’ The allowance would not apply to oxygenates waived to oxygen levels above 2.7 weight percent oxygen. (Hence, an ethanol blend could not be blended to levels higher than that allowed under the ‘gasohol waiver.’) In order to compensate for the problems associated with dilution and density. EPA will exercise discretion in enforcing the maximum ‘sub sim’ limit by permitting a blending allowance of +0.2 percent oxygen by weight for all ‘sub sim’ gasolines. For example, MTBE or TAME blends containing up to 2.9% oxygen by weight will be considered acceptable when detected at any point in the gasoline distribution network. This will allow producers and upstream blenders to blend slightly higher volumes of oxygenate into their gasoline, thereby anticipating and avoiding the potential loss of oxygen in the gasoline intended for sale in an oxygenated gasoline program. A similar blending allowance was announced by EPA in its Federal Implementation Plan for the Maricopa and Pima carbon monoxide nonattainment areas.’ It is important to note that this blending allowance is an enforcement discretion only. CARs may neither factor ‘sub sim’ gasolines containing more than 2.7% oxygen ‘ 56 FR 5352 (February 11, 1991). 14 56 FR 5458 (February 11, 1991). 38 ------- by weight into control period averages, nor generate credits based on “sub sim’ blend gasolines containing more than 2.7% oxygen by weight. This blending allowance will be considered separately from the testing tolerance which is to be established at a later date by the Administrator. Aoproved Oxygenates An oxygenate is any substance which, when added to gasoline, increases the amount of oxygen in that gasoline blend. It is unlawful to introduce oxygenated gasoline into commerce unless it is either substantially similar’ to certification fuel in accordance with 2 1 1(f)(1) of the Act, or permitted under a waiver granted by the Administrator under the authority of § 2 1 1(fl(4) of the Act. The following oxygenates are currently approved. Others may be approved by the Agency in the future, at which time they may be automatically recognized as approved under these guidelines. Through a series of waivers and interpretive rules, the Agency has determined the allowable limits for oxygenates in unleaded gasoline. The ‘Subs Oy Similar’ Interpretive Rule allows blends of aliphatic alcohols other than methanol and aliphatic ethers, provided the oxygen content does not exceed 2.7% by weight. An oxygenated blend may contain any mix of alcohols or ethers (other than methanol) at levels up to 2.7% by weight. It also provides for blends of methanol up to 0.3 percent by volume exclusive of other oxygenates, and up to 2.75% by volume methanol with an equal volume of butanol or alcohols of a higher molecular weight. The following indMdual waivers pertaining to the use of oxygenates in unleaded gasoline have been issued by the Agency under the authority of § 211(0(4), and are available for use by all parties. 1. Blends of up to 10% by volume anhydrous ethanol (200 proof) (commonly referred to as the ‘gasohor waiver).’ 5 2. Blends of methanol and gasoline-grade tertiary butyl alcohol (GTBA) such that the total oxygen content does not exceed 3.5% by weight and the ratio of methanol to GTBA is less than or equal to one. It is also specified that this blended fuel must meet ASTM volatility specifications (commonly referred to as the MARCO waiver).” 3. Blends of up to 5.0% by volume methanol with a minimum of 2.5% by vobsne cosolvent alcohols having a carbon number of 4 or less (i.e. ethanol, “44 FR 20777 (April 6, 1979). “44 FR 10530 (February 21, 1979). 39 ------- propanol, butanol, and/or GTBA). The total oxygen must not exceed 3.7% by weight, and the blend must meet ASTM volatility specifications as well as phase separation and alcohol pur;ty and inhibitor specifications (commonly referred to as the °DuPont ’ waiver).” 4. Blends of up to 5.0% by volume methanol with a minimum of 2.5% by volume cosolvent alcohols having a carbon number of 8 or less. The total oxygen must not exceed 3.7% by weight, and the blend must meet ASTM volatility specifications as well as phase separation and alcohol purity and inhibitor specifications (commonly referred to as the Octarnix’ waiver).’ 8 5. Blends of up to 15.0% by volume methyl tertiary butyl ether (MTBE), which must meet the ASTM D4814 specifications. Blenders must take precautions that the blends are not used as base gasolines for other oxygenated blends (commonly referred to as the Sun waiver).’ 9 It is the intent of these guidelines that oxygen content be calculated based upon the actual content of oxygen of a blend. That is, the actual content of oxygen in a gasoline blend is determined based upon the volume of the oxygenate, excluding denaturants or other non-oxygen-containing compounds. Inability to Produce Conforming Gasoline Due to Extraordinary Circumstances . Some parties suggested during the Regulatory Negotiation process that EPA address the situation where extraordinary circumstances do not permit a regulated party to comply with the requirements of a state oxygenated gasoline program under Section 211(m). In appropriate extreme and unusual circumstances (e.g., natural disaster or Act of God) which are clearly outside the control of the refiner and which could not have been avoided by the exercise of prudence, diligence and due care, states should consider allowing a refiner, for a brief period, to distribute fuel which does not meet the requirement for oxygenated gasoline if: 1) It is in the public interest to do so (e.g., distribution of the nonconforming fuel is necessary to meet projected shortfalls which cannot otherwise be compensated for); 2) The refiner exercised prudent planning and was not able to avoid the violation and has taken all reasonable steps to minimize the extent of the nonconformity; 3) The refiner can show how the requirements for oxygenated gasoline will be expeditiously achieved; 4) The refiner agrees to make up the air quality detriment associated with the nonconforming gasoline, where practicable; and 5) The refiner agrees to pay the state an amount “See 50 FR 2615 (January 17, 1985), 51 FR 15064 (April 22, 1986), 51 FR 39800 (October31, 1986), and 52 FR 18736 (May 19, 1987). 53 FR 3636 (February 8, 1988). 53 FR 33846 (September 1, 1988). 40 ------- equal to the economic benefit of the nonconformity minus the amount expended, pursuant to number 4 above, in making up the air quality detriment. IV. Comment Summary and Response A. Attestation Engagements Comments: Several parties submitted comments on the issue of attestation engagements to be performed by independent CPAs. Some parties felt that outside CPAs are not necessary and that the attestation requirements may be overly burdensome, time consuming, and expensive. Some parties suggested random enforcement audits of selected facilities, it an audit requirement of this type is necessary. Some parties expressed support for attestation engagements by independent CPAs as a justified enforcement tool. It was suggested that the cost of attestation engagements can be reduced if EPA lets the independent CPA rely on internal work consistent with the American Institute of Certified Public Accountants’ (AICPA) guidelines. Response: Due to cost considerations, EPA has revised these guidelines to allow some flexibility to some regulated parties. EPA has made several changes to these guidelines in response to comments: a) These guidelines establish specific agreed-upon procedures; b) the use of internal audit staff will be allowed as appropriate; C) the guidelines establish a method of audit sampling; and d) the guidelines now require the attestation report to be submitted in 120 days instead of 60 days after the end of the control period. B. State Jurisdictional Issues Comments: Several parties expressed concern about the issue of state enforcement action against out-of-state parties. These commenters tended to prefer that EPA take the enforcement iead. Some commenters felt that states should be permitted to delegate enforcement responsibilities for multi-state CMSAs and MSAS to EPA. Response: This issue is not relevant to the scope of these guidelines, and is therefore not addressed in these guidelines. C. Inability to Produce Conforming Gasoline Due to Extraordinary Circumstances Comments: Most commenters support allowing marketers to distribute fuel which does not meet the requirements for oxygenated gasoline in appropriate extreme and unusual circumstances. One commenter noted that relatively small shortfalls in gasoline supply have historically lead to consumer panic and price increases. Others pointed out that some companies could be forced out of the market if there were no provisions for relief. One commenter pointed out that any unfair economic advantage could be mitigated if fines and fees are applied. A few parties, responding to the July 41 ------- 9, 1991 notice, did not support the “variance provisions and noted that, if variances are available, they should be greatly restricted. Another commenter suggested that the variance should be limited to 30 days. Response: EPA agrees that ‘variances’ are an appropriate response to extraordinary circumstances. These “variances’ should be severely restricted in scope. D. Recordkeeoina Comments: Some commenters expressed concern on the issue of how a CAR can “assure that oxygenated gasoline is delivered to the intended destination. Also, several commenters expressed concern about the extent of the recordkeeping requirements. Most commenters recommended a record retention period of 2 or 3 years. Response: EPA has attempted to clarify the CAR’s responsibility by stating that they can rely on the purchaser’s representation provided that they put the required information on the bill of lading. Moreover, a recordkeeping requirement equivalent to each state’s statute of limitations will allow the state to effectively pursue violators. This is especially important for a program where compliance is in large part based on records kept by the CARs and other regulated parties. E. The State’s responsibility to monitor and assure the availability of oxygenates Comments: Some commenters stated that it is not the state’s responsibility to monitor and assure the availability of various oxygenates. These commenters felt that this function should be fulfilled by EPA. Response: EPA agrees with the position stated in the Regulatory Negotiation Agreement in Principal that the state should fulfill this function since these are state- implemented programs and oxygenate-availability problems are likely to be localized. F. Leadtime Comments: Several parties commented on the issue of whether EPA should include an oxygenated gasoline availability leadtime at the terminals of 0, 5, or 30 days in these guidelines. Comments were received advocating all three time periods. Commenters who d not support any leadtime at all tended to believe that EPA should rely on the workings of the market to ensure compliance at the beginning of the control period. One commenter, who supported a 30-day leadtime, doubted that a 5-day leadtime would lead to conforming gasoline being sold at the start of the control period. Response: EPA believes that data collected to support the federal volatility regulations supports a 5-day leadtime which should ensure that most retail stations will 42 ------- be in compliance at the beginning of the control period. The Agency notes that none of the currently operating oxygenated gasoline programs utilize a leadtime. Also, the amount of oxygenates that would be needed to comply with a 30-day leadtime could adversely impact the availability of oxygenates, especially in 1992. Finally, states could decide to implement a longer leadtime should they deem that necessary. G. Blending Allowance Comments: One commenter suggested that the blending allowance should be extended to terminals. Some commenters want the 0.2% allowance to be extended to all ethers and alcohols limited by the 2.7% substantially similar (sub sim 1 ) rule. Some commenters note that EPA should clearly distinguish between enforcement tolerance and blending allowance. Response: EPA agrees that the blending allowance should be available at all points in the distribution system. EPA also agrees that the blending allowance should be extended to all sub sim’ ethers and alcohols. EPA will address the issue of enforcement tolerance in a subsequent action. H. Availability of Nonoxvgenated Gasoline Comments: Some parties expressed the opinion that there is not an availability problem for nonoxygenated gasoline to be blended with oxygenate. downstream from the refinery. These parties tended to believe that EPA should leave the availability issue to market forces. Some parties urge EPA to provide specific guidance to states ensuring adequate levels of clear gasoline at terminals. Response: EPA believes that the combination of market forces and state oversight will ensure the availability of nonoxygenated gasoline. I. Registration Requirements Comments: Commenters suggested various processing periods for CAR registration. One commenter suggested that the processing period should be 60 days, but CARs should be allowed to register at a time later than the pre-control period as long as those CARs refrain from sales until their registrations are processed. Commenters supported processing periods ranging from one to three months. One commenter suggested that individual States should determine how long a processing period they need before the control period in order to process CAR registrations. Response: EPA has recommended a 30-day processing period. Mid-season registrations are permitted under the guidelines. EPA encourages states to process regist tion as quickly as possible, and would not oppose a shorter processing period. J. Reconciliation Period at the End of Averaging Period Comments: Several parties suggested that the reconciliation period at the end of the averaging period for balancing the books on the averaging standard should be 43 ------- increased to 30 days. Response: EPA has revised these guidelines to allow trading of credits to occur for 30 days following the close of the averaging penod. K. Testing Comments: Several commenters expressed support for ASTM 0-4815 as a wid&y used, dependable method. However, some commenters were concerned that the ASTM method includes inadequate precision data. According to some commenters, the method which has been developed by EPA, the OFID method, has weaknesses including lack of evaluation, limited availability, and a poor service record. Some commenters expressed concern over having to switch from one method to another beginning in 1994 and suggested that both methods be allowed. One commenter also expressed concern over the proposed quality control provisions. Response: EPA believes that the ASTM D4815 method currently has the shortcoming of poor precision (the ranges are too broad for enforcement purposes) and lacks the ability to quantify certain components expected to be allowed as oxygenated blending agents, most notably ETBE and TAME. However, ASTM is currently working on a revision to this method, and it is a procedure that many labs currently have the capability to perform. Therefore, although the Agency prefers its OFID method over the ASTM method at this time, the Agency agrees with the commenters that it would be unreasonable to exclude ASTM 04815. EPA’s OFID method does not have any of the limitations associated with the ASTM method at this time, and EPA feels the OFID to be more accurate and easier to use than the ASTM method. When the OFID method detects a peak, it must be an oxygenated compound and can therefore be incorporated in the total oxygen calculation directly. This is possible since the OFID responds only to the percent oxygen equivalent The ASTM method would simply record an uncalibrated peak as an unknown, with no additional information as to the oxygen content of the gasoline blend. Another major reason for the Agency’s preference for the OFID over the ASTM D4815 is that the OFID test method will be calibrated to yield its results in terms of the mass percent oxygenate contained in the fuel blend being analyzed, which is the unit of measurement required by the statutory requirement. This feature will obviate the need fnr the rather complex calculations described above, necessary when converting measurements from volume percent oxygenate to weight percent oxygen. EPA has knowledge of both methods. Experience with the OFID method had demonstrated it to be an extremely reliable instrument, requiring no service by the distributor during the two years it has been operational in the EPA laboratory in Ann Arbor, Michigan (NVFEL). At this point, EPA has no reason to believe that the 44 ------- instrument will require excessive maintenance. ASTM is also in the process of certifying an OFID method, arid it is EPA’s intention to work with them in minimizing the differences between these procedures. The Agency believes that the industry’s concerns surrounding the OFID will be reduced as exposure to the technique increases through the parallel efforts of ASTM. EPA has the task of minimizing the burden to all parties. To this effect, the Agency believes the least burden would be imposed by currently allowing both methods as legal enforcement techniques. At a later time, the Agency intends to establish a federal testing tolerance for all oxygenate tests as mandated by the Act. This tolerance will most likely be tied to the new OFID method, but the Agency will continue to work with ASTM in order to allow industry the greatest flexibility in purchasing and using oxygenate laboratory testing equipment. This route to enforcement will also allow those industries wishing to acquire an OFID in several years to plan for and capitalize the expense. The use of both methods will pose no regulatory problems right now, since no bias exists between thetwo methods. It is the Agency’s intention to provide the regulated parties with a description of the quality control provisions that would be employed if the method were being performed by EPA personnel within the enforcement laboratory at NVFEL These quality control provisions have been described as recommended practices. L CARs and Blender CARs Comments: One commenter requested that EPA-identify who the CAR is when ethanol blending occurs at the terminal. The commenter notes that there seems to be a contradiction in the definitions that suggests that a terminal which conducts blending cannot be considered a CAR but could be a blender CAR. This commenter suggests that eliminating the distinction between CAR and blender CAR would darify the guidelines. Also, the commenter notes that EPA should prohibit downstream parties who are not registered CARs from changing the oxygen content of the gasoline. Response: EPA has clarified the definitions and the responsibilities of the. CARs. In particular, blending which results in a change in the oxygen content has been prohibited by any party downstream of the terminal unless that party is registered as a CAR. Comments: Some terminals do not take ownership of product. Many commenters agreed that the CAR should be the gasoline owner. Non-owners who simply transfer product to trucks should be able to rely on CAR, purchaser, or carrier documentation. Some commenters thought that the requirement on CARs to assure that oxygenated gasoline, once accounted for, is sold or dispensed in the proper control area may be unreasonable. One commenter suggested that CARs should be allowed to fulfill the requirements by clearly indicating the control area for which the 45 ------- gasoline was intended on the bill of lading. Another cornmenter suggested that the purchaser should be required to provide the CAR and terminal owner with a certification of the destination of the gasoline. The terminal owner should be allowed to rely on that certification. Response: EPA agrees that a terminal operator or CAR should be able to rely on the representations of a purchaser as to the ultimate destination of the gasoline. The terminal operator or CAR is required to indicate the destination, that is, control area or non-control area, on the bill of lading. The terminal operator or CAR would not be able to rely on this representation, however, if he had information indicating that the representation was false. Comments: Some commenters thought that owners of gasoline at terminals should be allowed to assign CAR responsibility to other parties through contractual agreements. Response: EPA agrees with this comment and has made the appropriate changes to the guidelines. A party which owns gasoline (for example, through an exchange agreement) but wishes to reassign its CAR responsibilities (i.e. recordkeeping, reporting, averaging, etc.) to another party better-suited to act as the CAR for the gasoline in question could contractually transfer the gasoline to the assigned CAR under these guidelines. Thus the assigning CAR would have a zero volume of gasoline to report. Comments: Some commenters thought that terminals operators should have the option of using alternative methods, including LIFO (last in - first out) and FIFO (first in - first out), to the running weighted average which appears in the guidelines. Response: EPA believes that with the use of a running weighted average the information associated with each batch of gasoline will be more accurate than it would be with the use of the alternative suggested methods. Also, the alternative methods would make auditing by the states, internal auditors and independent CPAs more Øifficult and costly. M. SIP Submittal Dates Comments: A few commenters felt that EPA should set a date before November 1, 1992 for submission of SIP revisions. They supported the use of June 1, 1992. One perty suggested that SIP revisions should be due on November 15, 1992, when other CO submittals are due. Response: EPA has indicated that due date is November 15, 1992. An earlier due date would not likely result in more assurance that states would implement the oxygenated gasoline program in a timely manner since few states would be able to comply with the earlier date because of the time their regulatory processes take. Also, 46 ------- in order to set a due date prior to November 1992, EPA would likely be required to use notice and comment rulemaking. N. Oxygen Content Comments: In response to the Agency’s approach to oxygen content conversions, commenters indicated no objections to the basic approach. However, commenters did suggest some slight changes. Commenters indicated that, in Table 1 ETBE and TAME should have the same oxygen content. It was also pointed out that the table indicated ‘weight percent oxygen’ when, in fact, the values listed are ‘weight fractions.’ Some commenters pointed out that the specific gravities in Table I should be consistent with those being used by the American Society of Testing and Materials (ASTM). Response: The typographical error has been corrected so that both ETBE and TAME now show an oxygen weight or mass concentration of 0.1566. EPA agrees that Table 1 should be consistent with the values used by ASTM. Comments: One commenter suggested that the Agency continue its policy of allowing up to two percent of unintentionally added MTBE in base gasoline used for ethanol blending.Z The commenter further suggested that this policy be applied to other oxygenates as well. Response: The Agency has previously indicated that its policy allowing the unintentional existence of no more than two percent MTBE in base gasoline also does apply to waivered methanol blends (such as the DuPont waiver and the Texas Methanol waiver 21 ). Other oxygenates, blended at levels up to 2.7 percent oxygen under the Agency’s ‘substantially similar de1%nition, may contain any mix of alcohols or ethers (other than methanol). Hence, an allowance for inadvertent ‘contamination’ of one oxygenate blend with other ethers or alcohols is not needed. Comments: The Agency proposed that terminal blenders be given the option to either use average specific gravities or to use actual measured specific gravities when calculating oxygen content. One commenter suggested that a terminal blender be EPA has previously indicated through the ‘sub sim’ interpretive rule that it would not consider it to be a violation of the gasohol waiver if up to 10 percent (by volume) ethanol were added to unleaded gasoline containing no more than two percent (by volume) MTBE. However, the MTBE in the base fuel must be present only as a result of commingling during storage and transport and not purposefully added as an additional component to the ethanol blend. 21 See 51 FR 15064 (April 22, 1986) and 53 FR 3636 (February 2, 1988). See 58 FR 5352 (February 11, 1991). 47 ------- required to use the same method throughoi.it a single averaging period. Response: EPA sees no reasons why such a requirement is needed. 0. Quality Assurance for Carriers Comments: Many commenters opposed the requirement that carriers perform quality assurance programs in order to provide a defense in the presumptive liability scheme included in these guidelines. According to the commenters, carriers are solely concerned with the shipping and handling of oxygenated gasoline; because they do not own the products the handle, they have little or no incentive to alter the quantity or quality of individual batches of gasoline. The commenters believe that a quality assurance program conducted by carriers would increase the costs of an oxygenated gasoline program dramatically. Response: EPA agrees with the commenters, and has eliminated the requirement that carriers perform quality assurance programs as part of a liability defense. Because carriers have no ownership interest in the products they handle, it is the Agency’s belief that carriers have little or no incentive to alter the quantity or quality of the gasoline that they handle. Additionally, the Agency feels that current industry practice will involve a number of tests and cross-checks on carriers. The parties that own the gasoline normally will perform their own quality assurance programs; in many instances this will occur both before and after the product is handled by the carrier. Therefore, in today’s notice EPA has relieved carriers of the need to prove defense through a quality assurance program. However, it is important to remember that if it is believed that a carrier has caused a violation under these guidelines, it is the carrier’s responsibility to prove its defense in order to avoid prosecution. The standards of presumptive liability shall remain in place throuQhout the gasoline distribution network. P. Presumotive Liability Comments: Several commenters were opposed to the presumptive liability proposal. Mother commenter was concerned because a large proportion of their customers are independents. Response: EPA’s experience with presumptive liability in the lead contamination and volatility programs indicates that it is an effective enforcement tool and that greater quality assurance takes place as a result. 0. Averaging Programs Comments: Some commenters stated that EPA should strongly encourage states to adopt averaging programs. One commenter expressed the view that averaging programs help to neutralize the competitive advantage of large refiners, who possess MTBE production capacity. Response: EPA has strongly encouraged states to adopt averaging programs 48 ------- and will continue to do so. R. Product Transfer Documentation Comments: Some commenters fe that a requirement to identify the type of oxygenate ‘s unnecessary and interferes with gasoline furigibilit’y. One commenter suggested that the documentation show either the oxygen content of the gasoline in weight percent or the type and volume of the oxygenate in the gasoline. Response: EPA believes that the transfer document requirements, as written, are necessary to allow purchasers to ensure that the gasoline they are purchasing complies with the program requirements. These requirements will also allow regulators to trace gasoline which is found to be in violation of state requirements. S. Oxygenated Gasoline ‘Caos ’ Comments: Some commenters stated that caps on oxygen content are discriminatory and do not allow for competition between oxygenates. Two states are considering imposing maximum oxygen content limits which would preclude the use of 10% ethanol blends. One commenter notes that unless EPA forcefully rejects caps, the determination of the ethanol industry to produce and supply fuel ethanol in amounts previously committed to will be undermined and impeded. Response: In a separate notice, the Agency addresses these comments and proposes a finding under section 211 (C)(4)(A)(i) that rio contror on the maximum oxygen content of gasoline as a component of a winter oxygenated gasoline program “is necessary.’ T. Oxygenate Purity Comments: A number of commenters opposed the inclusion of oxygenate purity in the recordkeeping and reporting sections. The commenters feel that the purity has little relevance to the program and should not be required. Response: The Agency disagrees with these commenters. It is be’ieved that the inclusion of information on oxygenate purity will provide a valuable cross-check to the states as they evaluate the compliance data submitted by regulated parties at the dose of every control penod. By knowing the purity of the oxygenate used in each blend of averaged gasoline, the states will be able to verify the accuracy of the calculations within the reports submitted by the CARs and blender CARs. 49. ------- Appendix Oxygenated Gasoline Credit Programs (a) Scope. This Appendix applies to credit programs employed in state oxygenated gasoline programs under § 211(m) of the Clean Air Act, as amended (the Act). (b) Definitions. (1) Averaging period - The period of time over which all gasoline sold or dispensed for use in a control area by any control area responsible party must comply with the average oxygen content standard. (2) Blender control area responsible party (Blender CAR) - A person who owns oxygenated gasoline which is sold or dispensed from a control area oxygenate blending facility. (3) Carrier- Any person who transports, stores or causes the transportation or storage of gasoline at any point in the gasoline distribution network, without taking title to or otherwise having ownership of the gasoline and without altering the quality or quantity of the gasoline. (4) Control area - A geographic area in which only gasoline under the oxygenated gasoline program may be sold or dispensed, with boundaries determined in accordance with § 211(m) of the Act.’ (5) Control area oxygenate blending facility - Any facility or truck at which the oxygen content by weight of gasoline intended for use in any control area is altered in any manner other than combining two or more fuels complying with the 2.0% oxygen by weight minimum requirement. The quality or quantity of gasoline may not be otherwise altered, except through the addition of deposit-control additives. (6) Control area responsible party (CAR) - A person who owns oxygenated gasoline which is sold or dispensed from a control area terminal. (7) Control area terminal - A terminal which is capable of receiving gasoline in bulk, i.e., by pipeline, marine vessel or barge, and/or at which gasoline is altered either in quantity or quality, excluding the addition of deposit control additives. Gasoline which is intended for use in any control area is sold or dispensed into trucks at these control area terminals. (8) Control period - The period during which oxygenated gasoline must be sold and dispensed in any control area, pursuant to § 211 (m)(2) of the Act. 2 (9) Distributor - Any person who transports or stores or causes the transportation or storage of gasoline at any point between any gasoline refinery or importer’s facility and any retail outlet or wholesale purchaser-consumer’s facility. ‘The boundaries of the control areas are noted in a separate Federal Register notice published today. 2 EPA is required to determine the control periods, set by §211 (m)(2) of the Act, as that portion of the year in which the area is uprone to high an bient concentrations of carbon monoxide. In another Federal Register notice published today, EPA is establishing lengths of the control periods for the different areas covered by §211(m). 50 ------- (10) Gasoline. Any fuel sold for use in motor vehicles and motor vehicle engines and commonly or commercially known or sold as gasoline., (11) Nonoxygenated gasoline- Any gasoline which does not meet the definition of oxygenated gasoline. (12) Oxygen content of gasoline blends - Percentage of oxygen by weight contained in a gasoline blend, based upon its percentage oxygenate by volume, excluding denaturants and other non-oxygen-containing components. All measurements shall be adjusted to 60 degrees Fahrenheit. (13) Oxygenate - Any substance which, when added to ga line, increases the amount of oxygen in that gasoline blend. Lawful use of any combination of these substances requires that they be Substantially Similar under 211(0(1) of the Clean Air Act 3 or be permitted under a waiver granted by the Administrator under the authority of § 211 (f)(4) of the Clean Air Act. (14) Oxygenate blender - A person who owns, leases, operates, controls or supervises a control area oxygenate blending facility. (15) Oxygenated gasoline - Any gasoline which contains at least 2.0% oxygen by weight and has been included in the oxygenated gasoline program accounting by a control area responsible party and which is intended to be sold or dispensed for use in any control area. (16) Refiner - Any person who owns, leases, operates, controls, or supervises a refinery which produces gasoline for use in a control area. (17) Refinery - A plant at which gasoline is produced. - (18) Reseller - Any person who purchases gasoline and resells or transfers it to a retailer or a wholesale purchaser-consumer. (19) Retail outlet - Any establishment at which gasoline is sold or offered for sale to the ultimate consumer for use in motor vehicles. (20) Retailer - Any person who owns, leases, operates, controls or supervises a retail outlet. (21) Terminal - A facility at which gasoline is sold, or dispensed into trucks for transportation to retail outlets or wholesale purchaser-consumer facilities. (22) Wholesale purchaser-consumer - Any organization that is an ultimate consumer of gasoline and which purchases or obtains gasoline from a supplier for use in motor vehicles and receives delivery of that product into a storage tank of at least 550-gallon capacity substantially under the control of that organization. (C) Average oxygen content standard. (1) All gasoline sold or dispensed during the control period for use in each control area by each CAR or blender CAR as defined in paragraph (b) of this Appendix, shall be blended during each averaging period to contain an average oxygen content of not less than 2.7% by weight. Oxygen content calculations shall be performed in accordance with paragraph (d). (2) The averaging period over which all gasoline sold or dispensed in the control area is to be averaged shall be equal to the length of the control period as 56 FR 5352 (February 11, 1991). 51 ------- established by the Administrator, except that programs with control periods of six months or longer shall have averaging periods of three months. 4 (d) Sampling, testing and oxygen content calculations. (1) For the purpose of determining compliance with the requirements of this Appendix, the oxygen content of gasoline shall be determined by: (i) Sampling. Use of the sampling methodologies specified in Appendix A of this Appendix to obtain a representative sample of the gasoline to be tested; (ii) Testing. (A) Use of one of the test methods specified in Appendices B and C of this Appendix. These methods are used to determine the mass concentration of each oxy9enate in the gasoline sampled; or (B) Use of any alternative test method which has been successfully evaluated and approved by the Agency; and (iii) Oxygen Content Calculations. (A) Calculation of the oxygen content of the gasoline sampled by multiplying the mass concentration of each oxygenate in the gasoline sampled by the oxygen molecular weight contribution of the oxygenate set forth in paragraph (d)(2) of this Appendix; and (B) All volume measurements shall be adjusted to 60 degrees Fahrenheit. (2) For purposes of this Appendix, the oxygen molecular weight contributions of oxygenates currently approved for use in the United States are the following: ‘ EPA shall determine the length of the control period during the State Implementation Plan review and approval process. 52 ------- Table 1. Specific Gravity and Weight Percent Oxygen of Common Oxygenates Oxygenate Weight fraction oxygen Specific Gravity at 60 deg F methyl alcohol 0.4993 0.7963 ethyl alcohol 0.3473 0.7939 normal propyl alcohol 0.2662 0.8080 isopropyl alcohol 0.2662 0.7899 normal butyl alcohol 0.2158 0.8137 isobutyl alcohol 0.2158 0.8058 secondary butyl alcohol - 0.2158 0.8114 tertiary butyl alcohol 0.2158 0.7922 methyl tertiary butyl ether (MTBE) 0.1815 0.7460 tertiary amyl methyl ether (TAME) 0.1566 0.7752 diiso propyl ether (DIPE) 0.1566 0.7300 ethyl tertiary butyl ether (ETBE) 0.1566 0.7452 (e) Alternative compliance options. Each CAR or blender CAR shall comply with the standard specified in paragraph (C) of this Appendix by means of the method set forth in either paragraph (e)(1) or (e)(2) of this Appendix. (1) Compliance calculation on average basis. C!) To determine compliance with the standard in paragraph (C), the CAR or blender CAR shall, for each averaging period and for each control area: (A) Calculate the total volume of gasoline sold or dispensed for use in the control area which is the sum of: (1) The volume of each separate batch or truckload of oxygenated gasoline that is sold or dispensed: (2) Minus the volume of each separate batch or truckload of oxygenated gasoline that is sold or dispensed for use in a different control area; (3) Minus the volume of each separate batch or truckload of oxygenated gasoline that is sold or dispensed for use in any non-control area. (B) Calculate the required total oxygen credit units. Multiply the total volume in gallons of oxygenated gasoline sold or dispensed for use in the control area (as determined by (e)(1)(A) above) by 2.7 percent. (C) Calculate the actual total oxygen credit units generated. The actual total oxygen credit units generated is the sum of the volume of each batch or truckload of oxygenated gasoline that was sold or dispensed for use in the control 53 ------- area (as determined by (e)(1)(A) above) muftiphed by the actual oxygen content by weight associated with each batch or truckload. (D) Calculate the adjusted actual total oxygen credit units The adjusted actual total oxygen content units is the sum of the actual total oxygen credit units generated (as determined in (e)(1 )(C) above); (1) Plus the total oxygen credit units purchased or acquired through trade; and (2) Minus the total oxygen credit units sold or given away through trade. (E) Compare the adjusted actual total oxygen credit units with the required total oxygen credit units. If the adjusted actual total content oxygen credit units is greater than or equal to the required total oxygen credit units, then the standard in paragraph (C) is met. If the adjusted actual total oxygen credit units is less than the required total oxygen credit units then the purchase of oxygen credit units is required in order to achieve compliance. (F) In transferring oxygen credit units, the transferor shall provide the transferee with the volume and oxygen content by weight of the gasoline associated with the credits. (ii) To determine the oxygen credit units associated with each batch or truck load of oxygenated gasoline sold or dispensed into the control area, use the running weighted oxygen content (RWOC) (see (iii) below) of the tank from which the batch or truckload was received at the time the batch or truckload was received. In the case of batches or truckloads of gasoline to which oxygenate is added outside of the terminal storage tank from which it was received, use the weighted average of the RWOC and the oxygen content added as a result of the volume of the additional oxygenate added. (iii) Running weighted oxygen content (RWOC). The RWOC accounts for the volume and oxygen content of all gasoline which enters or leaves the terminal storage tank, and all oxygenates which are added to the tank. The RWOC must be calculated each time gasoline enters or leaves the tank or whenever oxygenates are added to the tank. The RWOC is calculated weighing the following: (A) The volume and oxygen content of the gasoline in the storage tank at the beginning of the averaging period; (B) The volume and oxygen content by weight of gasoline entering the storage tank; (C) The volume and oxygen content by weight of gasoline leaving the storage tank: and (D) The volume, type and oxygen content by weight of the oxygenates added to the storage tank. (iv) Credit transfers. Credits may be used in the compliance calculation in (e)(1 )(i)(A), provided that: (A) The credits are generated in the same control area as they are used, i.e., no credits may be transferred between nonattainment areas; (B) The credits are generated in the same averaging period as they are used; (C) The ownership of credits is transferred only between CARs 54 ------- or Blender CARs; (D) The credit transfer agreement is made no later than 30 working days after the final day of the averaging period in which the credits are generated; and (E) The credits are properly created. (v) Improperly created credits. (A) No party may transfer any credits to the extent such a transfer would result in the transferor having a negative credit balance at the conclusion of the averaging period for which the credits were transferred. Any credits ‘transferred in violation of this paragraph are improperly created credits. (B) In the case of credits which were improperly created, the following provisions apply: (1) Improperly created credits may not be used, regardless of a credit transferee’s good faith belief that it was receiving valid credits; (2) The transfer of credits in violation of (A) above constitutes a violation of these requirements, for which the transferor will be deemed to be in violation; and (3) Where any credits are transferred in violation of (A) above, the transferor’s properly-created credits will be applied first to any credit transfers before the transferor may apply any credits to achieve its own compliance. (4) Where any credits are transferred in violation of (A) above, the transferror shall be held legally and financially liable for any penaft es or damages incurred by the transferee as a result of the invalid transaction. (2) Compliance calculation on per-gallon basis. Each gallon of gasoline sold or dispensed by a CAR or Blender CAR for use within each control area during the averaging period as defined in paragraph (C) shall have an oxygen content of at least 2.7% by weight. In addition, the CAR or Blender CAR is prohibited from selling oxygen credits based on gasoline for which compliance is calculated under this alternative per-gallon method. (f) Minimum oxygen content. (1) Any gasoline which is sold or dispensed by a CAR or a Blender CAR for use within a control area, as defined in paragraph (b), during the control period shall contain not less than 2.0% oxygen by weight unless it is sold or dispensed to another registered CAR or Blender CAR. This requirement shall begin five days before the applicable control penod and shall apply until the end of that perioc . (2) ThIs requirement shall apply to all parties downstream of the CAR. Any gasoline which is offered for sale, sold or dispensed to an ultimate consumer within a control area, as defined in paragraph (b), shall contain not less than 2.0% oxygen by weight. This requirement shall apply during the entire applicable control period. (3) Every refiner or importer must determine the oxygen content of each batch of gasoline produced by use of one of the methodologies in the Appendices as described in section (d). This determination shall include the percent oxygen by weight, the type of oxygenate and the oxygenate percent by volume. (9) Registration. 55 ------- 4 (1) At least one month in advance of any control period in which a party will meet the definition of CAR or Blender CAR, such party shall petition for registration as a CAR or Blender CAR in each state that the party intends to serve. A party may petition for registration as a CAR or Blender CAR after the beginning of a control period but should do so at least 30 days before it plans to begin conducting activities as a CAR or Blender CAR. This petition for registration shall be on forms prescribed by the state and shall include the following information: (i) The name and business address of the control area responsible party; (ii) The address and physical location of each of the control area terminals from which the control area responsible party operates; (iii) The address and physical location of each control area oxygenate blender facility which is owned, leased, operated, controlled or supervised by a Blender CAR; and (iv) The address and physical location where documents which are required to be retained by this Appendix will be kept by the CAR. (2) Within thirty days of any occasion when the registration information previously supplied by a CAR becomes incomplete or inaccurate, the CAR or Blender CAR shall submit updated registration information to the state. (3) No party shall participate in the averaging program under paragraph (e) of this Appendix as a CAR or Blender CAR until it has been notified by the state that it has been registered as a CAR or Blender CAR and has been issued a unique CAR identification number. This should occur within 30 days of the submission of the registration application to the state. Registration by a state shall be valid for the time period specified by the state. The state shall issue each CAR and Blender CAR a unique identification number. (h) Recordkeeping and reporting. (1) Records. All parties in the gasoline distribution network as described below shall maintain records containing compliance information enumerated or described below. These records shall be retained by the regulated parties for a period of time established by the state consistent with its relevant statute of limitations. (i) Refiners and Importers. Refiners and importers shall, for each separate quantity of gasoline produced or imported for use in a control area during a control period, maintain records containing the following information: (A) Results of the tests performed to determine the types of oxygenates and percentage by volume; (B) Oxygenate content by volume; (C) Oxygen content by weight; (D) Total volume of gasoline; and (E) Name and address of the party to whom each separate quantity of gasoline was sold or transferred. (ii) Control area terminal operators and CARs. Persons who own, lease, operate or control gasoline terminals which serve control areas, or where appropriate, any CAR truck- or terminal-lessee who subleases any portion of a leased or tank or terminal to other persons, and all CARs shall maintain records containing 56 ------- the following information: (A) The owner of each batch of gasoline handled by each regulated facility if known, or the storage customer of record; (B) Volume of each batch or truckload of gasoline going into or out of the terminal; (C) For all batches or truckloads of gasoline leaving the terminal, the RWOC of the batch or truckload; (D) Type of oxygenate, purity, and percentage by volume if available; (E) Oxygen content by weight of all batches or truckloads received at the terminai; (F) Whether the gasoline is intended for use within a control area or not; (G) The destination of each tank truck sale or batch of gasoline a furnished in a written dedaration by the purchaser of the gasoline; (H) The name and address of the party to whom the gasoline was sold or transferred and the date of the sale or transfer; and (I) Results of the tests for oxygenates, if performed, for each sale or transfer, and who performed the tests. (iii) CARs and Blender CARs. CARS and Blender CARs must maintain records containing the information listed in paragraph (ii) above, plus the following information: (A) CAR or Blender CAR identification number; (B) Records supporting and demonstrating compliance with the averaging standard listed in paragraph (C) of this Appendix; (C) For any credits bought, sold, traded or transferred, the dates of the transactions, the names, addresses and CAR or Blender CAR numbers of the CARS or Blender CARs involved in the individual transactions, and the amount of credits (oxygen content and volume of gasoline) transferred. Any credits transferred must be accompanied by a demonstration of how those credits were calculated. Jso induded must be adequate documentation that both parties have agreed to all credit transactions within 30 working days following the close of the relevant averaging period; (D) The name and address of the auditor, and the results of the attestation engagement conducted pursuant to paragraph U) of this Appendix; (E) The name and address of the party from which each shipment of gasoline was received, and the date when it was received; (F) Data on each shipment of gasoline received, including: (1) The total volume of each shipment; (2) Type of oxygenate, purity, and percentage by volume; and (3) Oxygen content by weight; (G) The volume of each receipt of bulk oxygenates; (H) The name and address of the parties from whom bulk oxygenate was received; (I) Date and exact destination, it available, of each sale of 57 ------- gasoline; (J) Whether the gasoline was destined for a control area or not; (K) Data on each shipment of gasoline sold or dispensed including; (1) The volume of each shipment; (2) Type of oxygenate, purity, and percentage by volume; and (3) Oxygen content by weight; (L) Documentation of the results of all tests performed regarding the oxygen content of gasoline; and (M) The names, addresses and CAR or Blender CAR identification numbers of the parties to whom any gasoline was sold or dispensed, and the dates of these transactions (iv) Retailers and wholesale purchaser-consumers within a control area must maintain the following records: (A) The names, addresses and CAR or Blender CAR identification numbers of the parties from whom all shipments of gasoline were purchased or received, and the dates on which they were received; and (B) Data on every shipment of gasoline bought, sold or transported, including: (1) Total volume of each shipment: (2) Type of oxygenate, purity, and percentage by volume; (3) Oxyger content by weight; and (4) Whether the gasoline is intended for use in a control area or not. (2) Reports. (i) Each CAR and Blender CAR shall submit a self-audit report for each averaging period as defined in paragraph (C) reflecting the compliance information detailed in paragraph (e) of this Appendix. Reports are due on the 30th day of each month following the averaging period for which the information is required. These reports shall be tiled using forms provided by the state. (ii) CARs or Blender CARs shall also submit attestation engagement reports as required by paragraph 0) of this Appendix. Attestation engagements are to be conducted at the end of the control period, or every 6 months, whichever is shorter. The report is to be submitted to the state within 120 days following the end of the period covered by the engagement. (3) Transfer Documents. Each time that physical custody or title of gasoline destined for a control area changes hands other than when gasoline is sold or dispensed for use in motor vehicles at a retail outlet or wholesale purchaser-consumer facility, the transferor shall provide to the transferee, in addition to, or as part of, normal bills of lading, invoices, etc., a document containing information on that shipment. This document shall accompany every shipment of gasoline to a control area after it has been dispensed by a terminal, or the information shall be included in the normal paperwork which accompanies every shipment of gasoline. The 58 ------- information shall legibly and conspicuously contain the following information: (i) The date of the transfer; (ii) The name, address, and CAR or Blender CAR identification number, if applicable, of the transferor: (iii) The name, address and CAR or Blender CAR identification number, if applicable, of the transferee; (iv) The volume of gasoline which is being transferred; (v) The proper identification of the gasoline as nonoxygenated or oxygenated; (vi) The location of the gasoline at the time of the transfer; (vii) Type of oxygenate; and (viii) For gasoline which is in the gasoline distribution network between the refinery or import facility and the control area terminal, the oxygen content by weight and the oxygenate volume of the gasoline. çi) Prohibited activities. (1) During the control period, no refiner, importer, oxygenate blender, carrier, distributor or reseller may manufacture, sell, offer for sale, dispense, supply, offer for supply, store, transport, or cause the transportation of: (i) Gasoline which contains less than 2.0% oxygen by weight, for use during the control period in a CO nonattainment area subject to the requirements of § 211(m) of the Act; or (ii) Gasoline represented as oxygenated which has an oxygen content which is improperly stated in the documents which accompany such gasoline. (2) No retailer or wholesale purchaser-consumer may dispense, offer for sale, sell or store, for use during the control period, gasoline which contains less than 2.0% oxygen by weight in a Co nonattainment area subject to the requirements of § 211(m) of the Act. (3) No party may operate as a CAR or Blender CAR or represent itself as such unless it has been property registered by the state(s) involved. No CAR or Blender CAR may offer for sale, store, sell or dispense gasoline to any person not registered as a CAR for use in a control area, unless: (i) The average oxygen content of the gasoline during the averaging period meets the standard established in paragraph (C) of this Appendix; and (!i) The gasoline contains at least 2.0% oxygen by weight on a per- gallon basis. (4) For terminals which sell or dispense gasoline intended for use in a control area during the control period, the terminal owner or operator may not accept gasoline into the terminal unless: ( ) Transfer documentation accompanies it containing the information specified in paragraph (h)(3); and (ii) The terminal owner or operator conducts a quality assurance program to verify the accuracy of this information. (5) No person may sell or dispense nonoxygenated gasoline for use in any control area during the control period, unless: ) The nonoxygenated gasoline is segregated from oxygenated gasoline; 59 ------- I (ii) Clearly-marked documents accompany the nonoxygenated gasoline marking it as nonoxygenated gasoline, n3t for sale to ultimate consumer in a control area, and (iii) The rionoxygenated gasoline is in fact not sold or dispensed to ultimate consumers, during the control period, in the control area. (6) No named party may fail to comply with the recordkeeping and reporting requirements contained in section (h). (7) No person may sell, dispense or transfer oxygenated gasoline, except for use by the ultimate consumer at a retail outlet or wholesale purchaser-consumer facility, without transfer documents which accurately contain the information required by section (h)(3). (8) Unless registered as a CAR or Blender CAR, no person downstream of a terminai may combine gasoline complying with the 2.0% oxygen by weight minimum with gasoline not complying with the 2.0% minimum requirement if that gasoline is to be sold or dispensed in a control area during a control period. (9) Liability for violations of the prohibited activities. (I) Where the gasoline contained in any storage tank at any facility owned, leased, operated, controlled or supervised by any retailer, wholesale purchaser-consumer, distributor, reseller, carrier, refiner, importer, or oxygenate blender is found in violation of the prohibitions described in sections (1 )(i) or (2) of this paragraph, the following persons shall be deemed in violation: (A) The retailer, wholesale purchaser-consumer, distributor, reseller, carrier, refiner, importer, or oxygenate blender who owns, leases, operates, controls or supervises the facility where the violation is found; and (B) Each oxygenate blender, distributor, reseller, and carrier who, downstream of the control area terminal, sold, offered for sale, dispensed, supplied, offered for supply, stored, transported, or caused the transportation of any gasoline which is in the storage tank containing gasoline found to be in violation. (ii) Where the gasoline contained in any storage tank at any facility owned, leased, operated, controlled or supervised by any distributor, reseller, carrier, refiner, importer, or oxygenate blender is found in violation of the prohibitions described in section (1)(ii) or (2) of this paragraph, the following persons shall be deemed in violation: (A) The retailer, wholesale purchaser-consumer, distributor, reseller, carrier, refiner, importer, or oxygenate blender who owns, leases, operates, controls or supervises the facility where the violation is found; and (B) Each refiner, importer, oxygenate blender, distributor, and reseller who manufactured, imported, sold, offered for sale, dispensed, supplied, offered for supply, stored, transported, or caused the transportation of any gasoline which ic in the storage tank containing gasoline found to be in violation. (10) Defenses for prohibited activities. (I) In any case in which a refiner, importer, CAR, distributor or reseller would be in violation under paragraph (i)(1), it shall be deemed not in violation if it can demonstrate: (A) That the violation was not caused by the regulated party or its employee or agent; (B) That it possesses transfer documents which support the ------- oxygen content of all gasoline in its possession These transfer documents are required to accompany all oxygenated gasoline in the gasoline distribution network under paragraph (h). (C) A quality assurance sampling and testing program carried out by the regulated party, as described in (i)(1 1). (ii) In any case in which a carrier would be in violation under paragraph (i)(1), it shall be deemed not in violation if it can demonstrate: (A) That the violation was not caused by the regulated party or its employee or agent; (B) That it possesses product transfer documents required under paragraph (h) for all the gasoline in its possession, and that the oxygen contents reflected in these documents are consistent with the oxygen content of such gasoline. (iii) In any case in which a retailer or wholesale purchaser-consumer would be in violation under paragraph (i)(2), it shall be deemed not in violation if it can demonstrate: (A) That the violation was not caused by the regulated party or its employee or agent; and (B) That it possesses transfer documents which support the oxygen content of all gasoline in its possession. These transfer documents are required to accompany all oxygenated gasoline in the gasoline distribution network under paragraph (h). (iv) Where a violation is found at a facility which is operating under the corporate, trade or brand name of a refiner, that refiner must show, in addition to the defense elements required by paragraph (i)(1O)O), that the violation was caused by: (A) An act in violation of law (other than the Act or this part) or an act of sabotage or vandalism; or (B) The action of any reseller, distributor, oxygenate blender, carrier, or a retailer or wholesale purchaser-consumer which is supplied by any of the persons listed above in paragraph (i)(1O)(!), in violation of a contractual undertaking imposed by the refiner designed to prevent such action, and despite periodic sampling and testing by the refiner to ensure compliance with such contractual obligation; or (C) The action of any carrier or other distributor not subject to a contract with the refiner but engaged by the refiner for transportation of gasoline, despite specification or inspection of procedures and equipment by the refiner or periodic sampling and testing which are reasonably calculated to prevent such action. (v) In this paragraph (i)(1O), the term was caused’ means that the party must demonstrate by reasonably specific showings, by direct or circumstantial evidence, that the violation was caused or must have been caused by another. (11) Quality Assurance Program. In order to demonstrate an acceptable quality assurance program, any party except for a carrier, wholesale purchaser- consumer or retailer must conduct itself or commission an independent testing service to conduct periodic sampling and testing to determine if the oxygenated gasoline has oxygen content which is consistent with the product transfer documentation. 0) Attestation engagements. (1) The attestation engagement shall consist of performing the agreed-upon 61 ------- procedures set forth in the guidelines in accordance with either the Codification of Standards for the Professional Practice of Infernal Auditing as promulgated by the Institute of Internal Auditors, Inc. or the American Institute of Certified Public Accountants’ (AICPAs) Statements on Standards for Attestation Engagements and using statistical sample design parameters provided by the Agency. 5 (2) The attestation engagement shall be conducted by either an internal auditor employed by the CAR or a Certified Public Accountant (CPA). This attestation engagement may be performed by either an internal auditor employed by the CAR or, if a CAR has no internal auditors available, an independent CPA or a firm of independent CPAs. Internal auditors must be either Certified Internal Auditors (ClAs) or members in good standing of the Institute of Internal Auditors, Inc (IIA). (3) The CPA is required to comply with the general code of conduct and ethics as prescribed by the state in which he or she is licensed and, if applicable, a member in good standing of either the AICPA or the IlA. (4) The attestation engagement shall include the following agreed-upon procedures, as appropriate, for the CAR’s standardized reporting form(s): (i) Read the report completed by management and filed with the state agency. i) Obtain from tha CAR an inventory reconciliation summarizing receipts and deliveries of all gasoline, gasoline bleridstocks, and oxygenates for CARs serving a control area. (A) Test mathematical accuracy of inventory reconciliation. (B) Agree beginning and ending inventory amounts to company’s perpetual inventory records. (C) Agree deliveries into the control area to state report, it In performing the attest engagement, the internal auditor or CPA shall determine the sample size for each population according to the following table: Number in Population (N) Sample Size 66 or larger 59 41-65 ‘ 41 26-40 31 0 - 25 N or 24, whichever is smaller The number of populations from which samples should be drawn will vary depending on the circumstances. Sample items should be selected in such a way that the sample can be expected to be representative of the population. If the CPA agrees to use some other form of sample selection and some other method to determine the sample size, that agreement should be summarized in the CPA’s report. 62 ------- applicable. (iii) Obtain listing of all gasoline, gasoline blendstocks, and oxygenate receipts during the period. (A) Test mathematical accuracy of listing. (B) Agree amounts to inventory reconciliation. (C) Select a representative sample of individual receipti of gasoline, gasoline blendstocks, and oxygenates and trace details back to source documents. (iv) Obtain listing of all gasoline, gasoline blendstocks, and oxygenates sold or dispensed during the period. (A) Test mathematical accuracy of listing. (B) Agree amounts to inventory reconciliation report. (C) Select a representative sample of individual batches sold or dispensed both into and outside the control area. (1) Agree volumes for the sample items to original bill of lading or other source documents. (2) For sales or deliveries into the control area, determine that oxygenate content is at least two percent by examining bills of lading. (v) Using the volume of oxygenated gasoline sold or dispensed into the control area from the inventory reconciliation report, recalculate the number of oxygen content units required by multiplying volume by 2.7% and agree to state report. (vi) Recalculate the actual total oxygen credit units generated by adding the oxygen content units of each batcPr or truckload of oxygenated gasoline that was sold or dispensed in the control area as determined in section (v) above. These units are generated by multiplying the actual oxygen content by weight associated with each batch or truckload by the volume. (vii) Recalculate the adjusted actual total oxygen credit units as follows: (A) The actual total oxygen credit units generated from section (vi); (B) Plus the total oxygen credit units purchased or acquired through trade; and (C) Minus the total oxygen credit units sold or given away through trade. (viii) The following steps apply to the testing of the actual total oxygen content from section (vi) and are applicable based on method of blending: (A) For CARs using r k- and splash-blending, recompute oxygen content by weight for a representative sample of deliveries based on detailed meter readings of gasoline, blendstocks and oxygenate receipts. (B) For CARs using in-tank blending of gasoline, blendstocks and oxygenates, obtain register of running weighted oxygen content by tank and: (1) Using the individual sample items from sections (iii) and (iv) above, test calculation of running totals. (2) Where laboratory analysis is used within the CAR’s weighted average calculation, select individual analysis reports of oxygenated gasoline receipts and deliveries during the period on a representative sample basis. (a) Review laboratory results for consistency with 63 ------- CARs calculations noting oxygen volume and specific gravity. (b) Recalculate oxygen by weight. (C) Agree information on lab reports to underlying delivery and receiving documentation. (ix) Obtain register of oxygen credit unit purchases and sales and select separate representative samples of individual purchased credits and individual sales credits. (A) Agree selected credit unit transactions to the underlying contract and/or other supporting documentation noting specific volumes and oxygen content of the gasoline associated with the credits. (B) Agree to the underlying contract and/or supporting documentation that the credits are generated in the same control areas as they are used (i.e., no credits may be transferred between nonattainment areas). (C) Agree to the underlying contract and/or supporting documentation that the credits are generated in the same averaging period as they are used. (D) Agree to the underlying contract and/or supporting documentation that the ownership of credits is transferred only between CARs. (E) Agree to the underlying contract and for supporting documentation that the credit transfer agreement was made no later than 30 working days after the final day of the averaging period in which the credits are generated. (x) Prepare a report to CAR management in accordance with the Codification of Standards for the Professional Practice of Intexnal Auditing as promulgated by the IA or the AICPA’s Statements on Standards lot Attestation Engagements indicating the results of performing the above procedures. This report should include, in addition to the information described in Appendix D, a declaration of the internal auditor’s or the CPA’s professional credentials. 64 ------- Appendix A -- Sampling Procedures EPA ’s sampling procedures are detailed in Appendix D of 40 CFR 80 Appendix B Testing Procedure PROPOSED REVISION OF ASTM DESIGNATION: D-4815-89 Standard Test Method for Determination of MTBE, ETBE, TAME, D [ PE., tertiary-Amyl Alcohol and C 1 toC 4 Alcohols in Gasoline by Gas Chromatography 1 Thzs scandard is issued under the fixed designation D-4815; the number immediately following the designation indicates the year of ongirial adoption or, in the case of revision, the year of last revision. A number in parentheses indicates the year of last reapproval. A superscript epsilon (e) indicates an editorial change since the last revision or reapproval. t This test method is under the jurisdiction of ASTM Committee D-2 on hydrocarbons and is the direct responsibility of Subcommittee D.02.04 on methods of analysis. This test method supercedes ASTM D-4815-89. 2 This test method has undergone extensive resiviori in order to address current requirements for the determination of oxygenates in fuels. 1. Scope 1.1 This test method is designed for the determination of ethers and alcohols in gasolines by gas chromatography. Specific compounds determined are: methyl tert-butylether (MTBE), ethyl -butylether (ETBE), -amylmethylether (TAME), diisopropylether (DEPE), methanol, ethanol, isopropanol, -propanol. isobutanol, -butanol. •butanol, ,i.butanol, and -pentanol ( ri. aznylalcohol). 1.2 Individual ethers are determined from 0.1 to 20.0 rnass%. Individual alcohols are determined from 0.1 to 12.0 mass%. Equations used to convert to mass% oxygen and to volume% of individual compounds are provided. 1.3 SI (metric) units are preferred and used throughout this standard. Alternate units, in common usage, are also provided to increase clarity and aid the users of this method. 1.4 Alcohol-based fuels such as M-85 and E-85, MTBE product, ethanol product and denatured alcohol are specifically excluded from this method. The methanol content of M85 fuel is considered beyond the operating range of the system. 65 ------- -l 1.5 Benzene. while detected, cannot be quantified using this test method and must be analyzed by alternate methodology (Test Methods D.3606 or D.4420). 2 1.6 This standard does not purport to address all of the safety problems associated with us use. I: is the responsthiliry of the user of this standard to establish appropriate safery and health practices and dezermi.ne the applicability of regulatoiv litnuarions prior to use. 2. Referenced Documents - 2.1 ASTM Standards: D3606 Test method for Benzene and Toluene in Finished Motor and Aviation Gasoline by Gas Chromatography 2 D4052 Test Method for Density and Relative Density of Liquids by Digital Density Meter 2 D4057 Practice for Manual Sampling of Petroleum and Petroleum Products 2 D4307 Practice for Preparation of Liquid Blends for Use as Analytical Standards 2 D4420 Test Method for Aromatics in Finished Gasolines by Gas Chro matography 2 D4626 Practice for Calculation of Gas Chromatographic Response Factors 2 D1298 Test Method for Density, Relative Density (Specific Gravity), or API Gravity of Crude Petroleum and Liquid Petroleum Products by Hydrometer Method 5 3. Terminology 3.1 Descriptions of Temis Specific to This Standard: 3.1.1 low volume connector--a special union for connecting two lengths of tubing 1.6 mm inside diameter and smaller. Sometimes this is referred to as zero dead volume union. 3.1.2 MThE--methyl tertiarv.butyl ether. 3.1.3 ETBE-ethyl tertiary-butyl ether 3.1.4 TAME—tertiarv-amyl methyl ether 3.1.5 DIPE .-diisopropyl ether 3.1.6 lematy-amyl alcohol—tertiarv-pentanol 3.1.7 Oa ena:e--any oxygen-containing organic compound which can be used as a fuel or fuel supplement, for example, various alcohols and ethers. 3.1.8 split rruw--in capillary gas chromatography, the ratio of the total flow of carrier gas to the sample inlet versus the flow of the carrier gas to the capillary column, expressed by split ratio = (S + C)/C [ 1] where S is the flow rate at the splitter vent, and C is the flow rate at the column outlet. 66 ------- 3.1.9 TCEP--L2,3-tris-2-cyanoethoxypropane—a gas chromato aphic liquid phase. 3.1.10 WCOT--a type of capillary gas chromatographic column prepared by coating the inside of the capillary with a thin film of stationary phase. 4. Snrnm ry of Test Method 4.1 An appropriate internal standard such as 1,2-dimethoxyethane (ethylene glycol dimethyl ether) is added to the sample which is then introduced into a gas chromatograph equipped with two columns and a column switching valve. The sample first passes onto a polar TCEP column which elutes lighter hydrocarbons to vent and retains the oxygenated and heavier hydrocarbons. After methylcyclopernane, but before DIPE and MTBE elute from the polar column. the valve is switched to backflush the oxygenates onto a WCOT non-polar column. The alcohols and ethers elute from the non-polar column in boiling point order, before elution of any major hydrocarbon constituents. After benzerie and TAME elute from the non-polar column, the column switching valve is switched back to its original position to backflush the heavy hydrocarbons. The eluted components are detected by a flame ionization or thermal conductivity detector. The detector response, proportional to the component concentration, is recorded; the peak areas are measured; and the concentration of each component is calculated with reference to the internal standard. 5. Significance and Use 5.1 Ethers, alcohols and other oxygenates can be added to gasoline to increase octane number and to reduce emissions. Type and concentration of various oxygenates are specified and regulated to ensure acceptable commercial gasoline quality. Drivability, vapor pressure, phase separation, exhaust and evaporative emissions are some of the concerns associated with oxygenated fuels. 5.2 This test method is applicable to both quality control in the production of gasoline and for the determination of deliberate or extraneous oxygenate additions or contamination. 6. Apparatus 6.1 Chmma:ograph: 6.1.1 While any gas chromatographic system, which is capable of adequately resolving the individual ethers and alcohols that are presented in Table 2. can be used for these analyses, a gas chromatographic instrument which can be operated at the conditions given in Table 1, and having a column switching and backflushing system equivalent to Fig. 1 has been found acceptable. Carrier gas flow controllers shall be capable of precise control where the required flow rates are low (Table 1). Pressure control 67 ------- 4 devices and gauges shall be capable of precise control for the typical pressures required. 6.1.2 Detector--A thermal conductivity detector or flame ionization detector. can be used. The system shall have sufficient sensitivity and stability to obtain a recorder deflection of at least 2 mm at a signal-to-noise ratio of at least 5 to 1 for 0.005 volume% concentration of an oxygenate. 6.1.3 Swiichuig and Back/lushing Valve--A valve, to be located within the gas chromatographic column oven, capable of performing the functions described in Section 11 and illustrated in Fig. 1. The valve shall be of low volume design and not contribute significantly to chromatographic deterioration. 6.1.3.1 Valco Model No. A 4CJOWP, 1.6mm (1/16 in.) fittings. This particular valve was used in the majority of the analyses used for the development of Section 15. 6.1.3.2 Valca Model No. C1OW, 0.8 mm (1/32 in.) fittings. This valve is recommended for use with columns of 0.32 mm inside diameter and smaller. 6.1.3.3 Some gas chromatographs are equipped with an awdliary oven which can be used to contain the valve and polar column. In such a configuration, the nonpolar column is located in the main oven and the temperature can be adjusted for optimum oxygenates resolution. 6.1.4 An automatic valve switching device must be used to ensure repeatable switching times. Such a device should be synchronized with injection and data collection times. 6.1.5 Injection System—The chromatograph should be equipped with a splitting-type inlet device if capillary columns or flame ionization detection are used. Split injection is necessary to maintain the actual chromatographed sample size within the limits of column and detector optimum efficiency and linearity. 6.1.5.1 Some gas chromatographs are equipped with on-column injectors and autosamplers which can inject small samples sizes. Such injection systems can be used provided that sample size is within the limit of the column and detectors optimum efficiency and linearity. 6.1.5.2 Microlitre syringes, automatic syringe injectors, and liquid sampling valves have been used successfully for introducing representative samples into the gas chromatographic inlet. 6.2 Data Presentanon orCalcularion, orBoik 6.2.1 Recorder--A recording potentiometer or equivalent with a full-scale deflection of 5 mV or less can be used to monitor detector signal. Full- scale response time should be I s or less with sufficient sensitivity and stability to meet the requirements of 6.1.2. 69 ------- 5 6.2.2 Integrator or Computer--Means shall be provided for determining the detector response. Peak heights or areas can be measured by computer. electronic integration or manual techniques. 6.3 Columns, rwo as follows: 6.3.1 Polar column--This column performs a preseparation of the oxygenates from volatile hydrocarbons in the same boiling point range. The oxygenates and remaining hydrocarbons are backflushed onto the non- polar column in 6.3.2. Any column with equivalent or better chromatographic efficiency and selectivity to that described in 6.3.1.1 can be used. The column shall perform at the same temperature as required for the column in 6.3.2. except if located in a separate auxiliary oven as in 6.1.3.3. 6.3.1.1 TCEP Micro-Packed Colwnn 4 , 560mm (22 in.) by 1.6 mm (1/16 in.) outside diameter by 0.38 mm (0.015 in.).inside diameter stainless steel tube packed with 0.14 100.15 g of 20% (mass/mass) TCEP on 80/100 mesh Chromosorb P(AW). This column was used in the cooperative study to provide the precision and bias data referred to in Section 15. 6.3.2 Non-polar (Analytical) Column—Any column with equivalent or better chromatographic efficiency and selectivity to that described in 6.3.2.1 and illustrated in Fig. 2 can be used. 6.3.2.1 WCOTMethyI Silicone Column, 30m (1181 in.) long by 0.53 mm (0.021 in.) inside diameter fused silica WCOT column with a 2. m film thickness of cross-linked methyl sioxane. This column was used in the cooperative study to provide the precision and bias data referred to in Section 15. 7. Reagents and Materials 7.1 Canier Gas—Carrier gas appropriate to the type of detector used. Helium has been used successfully. The minimum purity of the carrier gas used must be 99.95 mol%. 7.2 Standards for Calibranon and Identification--Standards of all components to be analyzed and the internal standard are required for establishing identification by retention time as well as calibration for quantitative measurements. These materials shall be of known purity and free of the other components to be analyzed. NOTE 1: Warning—These materials are flammable and can be harmful or fatal if ingested or inhaled. 7.3 Preparation of Calibration Blends--For best results, these components must be added to a stock gasoline, a hydrocarbon blend or petroleum naphtha, which is free of oxgenates (Warning--See Note 2). Refer to Practice D 4307 for preparation of liquid blends. The preparation of several different blends, at 70 ------- 6 different concentration levels covering the concentration range of interest is necessary to verify system linearity. For best precision, a multipoint calibration procedure must be used. To do so. piot ratios of the areas of oxygenates to that of the internal standard (y-axis) against the ratios of the concentrations of the oxygenates to that of the internal standard (x.axis). These will be used to establish the linearity of the component response. NOTE 2: Warning_Extremely flammable. Vapors harmful if inhaled. 7.4 Methylene Chloride--Used for column preparation. Reagent grade free of non- volatile residue. NOTE 3: Warning—Harmful if inhaled. High concentrations can cause unconsciousness or death. & Preparation of Column Packmn 8.1 TCEP Column Packing: 8.1.1 Any satisfactory method, used in the practice of the art that will produce a column capable of retaining the Cl to C4 alcohols and MTBE, ETBE, DIPE and TAME from components of the same boding point range in a gasoline sample. The following procedure has been used successfully. 8.1.2 Completely dissolve log of TCEP in 100 mL of methylene chloride. Next add 40 g of 80/100 mesh Chromosorb P(AW) 6 to the TCEP solution. Quickly transfer this mixture to a drying dish, in a fume hood, without scraping any of the residual packing from the sides of the container. Constantly, but gently, stir the packing until all of the solvent has evaporated. This column packing can be used immediately to prepare the TCEP column. 9. Preparation of Micro-packed TCEP Column 9.1 Wash a straight 560mm length of 1.6mm outside diameter (0.38mm inside diameter) stainless steel tubing with methanol and dry with compressed nitrogen. 9.2 Insert 6 to 12 strands of silvered wire, a small mesh screen or stainless steel frit inside one end of the tube. Slowly add 0.14 to 0. 15 g of packing material to the column and gently vibrate to settle the packing inside the column. When strands of wire are used to retain the packing material inside the column, leave 6.0 mm (0.25 in.) of space at the top of the column. 9.3 Column Conditioning—Both the TCEP and WCOT columns are to be briefly conditioned before use. Connect the columns to the valve (see 11.1) in the chroinatographic oven. Adjust the carrier gas flows as in 11.3 and place the valve in the RESET position. After several minutes, increase the column oven temperature to 120°C and maintain these conditions for 5 to 10 mm. Cool the columns below 60°C before shutting off the carrier flow. 71 ------- 7 10. Sampling 10.1 Every effort should be made to insure that the sample is representative of the fuel source from which t s taken. Follow the recommendations of Practice D4057 or its equivalent when obtaining samples from bulk storage or pipelines. 10.2 Upon receivt in the laboratory, chill the sample in its onginal container to 32 to 4OGF before any subsamphng is performed. 10.3 If necessary, transfer the chilled sample to a vapor tight container and store at 32 to 40°F until needed for analysis. 11. Preparation of Apparatus and Establishment of Ccnditions 11.1 Assembly--Connect the WCOT column to the valve system using low volume connectors and narrow bore tubing. It is important to minimize the volume of the chromatographic system that comes in contact with the sample, otherwise peak broadening will occur. 11.2 Adjust the operating conditions to those listed in Table 1, but do not turn on the detector circuits. Check the system for leaks before proceeding further. 11.2.1 If different polar and nonpolar columns are used, and/or capillary columns of smaller ED are used, it can be necessary to use different optimum flows and temperatures. 11.3 Flow Rate Adjustment: 11.3.1 Attach a flow measuring device to the column vent with the valve in the RESET position and adjust the pressure to the injection port to give 5.0 mLlmin flow (14 psig). Soap bubble flow meters are suitable. 11.3.2 Attach a flow measuring device to the split injector vent and adjust the flow from the split vent using the A flow’controller to give a flow of 70 mLlmin. Recheck the column vent flow set in 11.3.1 and adjust if necessary. 11.3.3 Switch the valve to the BACKFLUSH position and adjust the vanable restrictorto give the same column vent flow set in 11.3.1. This is necessary to minim 17-c flow changes when the valve is switched. 11.3.4 Switch the valve to the inject position RESET and adjust the B flow controller to give a flow of 3.0 to 3.2 mLfmin at the detector exit. When required for the particular instrumentation used, add makeup flow or lCD switching flow to give a total of 21 mLImin at the detector e,at. 11.4 When a thermal conductivity detector is used, turn on the filament current and allow the detector to equilibrate. When a flame ionization detector is used, set the hydrogen and air flows and ignite the flame. 11.5 Deterinme the Time to. Black/lush--The time to backflush will vary slightly for each column system and must be determined experimentally as follows. The ------- 8 start time of the integrator and valve timer must be synchronized with the injection to accurately reproduce the backflush time. 11.5.1 Initially assume a valve BACKFL.USH time of 0.23 mm. With the valve RESET, inject 3,. L of a blend containing at least 0.5% or greater oxygenates (7.3), and simultaneously begin timing the analysis. At 0.23 nun, rotate the valve to the BACKFLUSH position and leave it there until the complete elution of TAME is realized. Record this time as the RESET time, which is the time at which the valve is returned to the RESET position. When all of the remaining hydrocarbons are backflushed the signal will return to a stable baseline and the system is ready for another analysis. The chromatogram should appear similar to the one Wustrated in Fig. 2. 11.5.1.1. Ensure thai the BACKFLUSH time is sufficient to quantitatively transfer the higher concentrat ons of the ethers. specifically MTBE, into the nonpolar column. 11.5.2 It is necessary to optimize the valve BACKFLUSH time by analyzing a standard blend containing oxygenates. The correct BACKFLUSH time is determined experimentally by using valve switching times between 0.2 and 0.3 mm. When the valve is switched too soon, C5 and lighter hydrocarbons are backflushed and are co-eluted in the C4 alcohol section of the chromatogram. When the valve BACKFLUSH is switched too late, part or all of the ether component (MTBE, ETBE or TAME) is vented resulting in an incorrect ether measurement. 11.5.2.1. DIPE may require a BACKFLUSH time slightly shorter than the other ethers. The system may require reoptirmzation if the analysis of DIPE is required. 11.5.3 To facilitate setting BACKFLUSH TIME, the column vent in Figure 1 can be connected to a second detector (TCD or FID) as described in Test Method D4420 and used to set BACKFLUSH TIME based on the oxygenates standard containing the ethers of interest. 12. Calibration and Standardi7ation 12.1 !denn cadon—Determine the retention time of each component by injecting small amounts either separately, or in known mixtures or by comparing the relative retention times with those in Table 2. 12. 1.1 In order to ensure that miminum interference from hydrocarbons, it is strongly recommended that a fuel devoid of oxygenates be chromotographed to determine the level of any hydrocarbon interference. 12.2 Preparation of Calthranon Samples--Several calibration blends of the specific components being analyzed in an appropriate reference fuel or standard hydrocarbon blend should be prepared and analyzed to establish whether the response is linear over the range of concentrations under study. In the preparation of blends, the total mass percent of oxygenated components in the 73 ------- 9 reference fuel or standard hydrocarbon blend, including the internal standard. must not exceed 30 mass percent. 12.3 S:andardizanon--The area under each peak in the chromatogram is considered a quantitative measure of the corresponding compound. Measure the peak area of each oxygenate and of the internal standard by either manual methods or electronic integrator. Calculate the response of each oxygenate, relative to the internal standard, according to Practice D 4626.2 13. Procedure 13.1 Preparation of sample—Add a quantity of internal standard to an accurately measured quantity of chilled sample on a gravimetric (mass) basis. The diether. 1,2- dimethoxyethane, has been found to be an appropriate internal standard. A diether concentration in the 5 to 7 mass% range has been used successfully. This corresponds to 1.8 to 2.5 mass% added oxygen. 13.2 Chromatographic Analysu—Introduce a representative aliquot of the sample, containing internal standard, into the gas chromatograph using the same technique and sample size as used for the calibration analysis. An injection volume of 3.0 l with a 15:1 split ratio has been used successfully. Start recording and integrating devices in synchronization with sample introduction. Obtain a chroinatogram or integrated peak report or both which displays the retention times and integrated area of each detected component. 13.3 Ituerpretanon of Chromatogram—Com pare the retention times of sample components to those of the calibration analysis to determine the identities of oxygenates present. 14. Calculation 14.1 Mass Concentration of pxygenates — After identifying the various oxygenates measure the area of each oxygenate peak and that of the internal standard. Calculate the tnass% of each oxygenate according to equation 2 as follows: W 5 x Ai x R x 100 X 1 A 5 XWg (2] where: Xi = mass% of each oxygenate being determined, Ws = mass of internal standard (1,2.dimethoxvethane) added, Wg = mass of gasoline sample taken, 74 ------- 10 Ai = peak area of the oxygenate to be determined. As = peak area of the internal standard (1.2-dimethoxvethane), and Ri = mass relative response factor of each component (relative to the internal standard). 14.2 Report the mass% of each oxygenate to the nearest 0.01 mass %. 14.3 Mass % oxygen--To determine the oxygen content of the fuel, convert and sum the oxygen contents of all oxygenated components determined in 14.1 aocording to equation 3 as follows: Xx 16.0 x N , X 101 = E M [ 31 or X 1 x 16.OxN 1 X 2 x 16.0xN Xt 0 t = M 1 . + M, + [ 4 ) where: X, = ma.ss% of each oxygenate X 0 = total mass% oxygen in the fuel, M 1 = molecular weight of the oxygenate as given in table 2, and 16.0 = atomic weight of oxygen, N 1 = number of oxygen atoms in the oxygenate molecule 14.4 Report the total mass% of oxygen in the fuel to the nearest 0.01 mass %. 14.5 Volumeuic Concenirwion of Oxygenates--If the volumetric concentration of each oxygenate is desired, calculate the volumetric concentrations according to equation 5 as follows: WI V 1 = xDf [ 5) where: V I = volume% of each oxygenate to be determined. 75 ------- 11 W 1 = mass% of each oxygenate as calculated from equation 1, D = relative density at 60cF(15.56 0 C) of the individual oxygenate as found in table 2., Df = relative density of the fuel under study as determined by Test Methods D-1298 or D-4852 14.6 Report the volume% of each oxygenate to the nearest 0.01 volume %. 15. Precision and Bias 7 15.1 Precision—The precision of this test method as determined by a statistical examination of interlaboratory test results is as follows: 15.1.1 Repeasabiity--The difference between successive results obtained by the same operator with the same apparatus under constant operating conditions on identical test materials would, in the long run, in the normal and the correct operation of the test method exceed the following values only in one case in twenty (see Table 3). 7 Supporting data are/will be available from ASTM Headquarters. Request RR:D02xxxx. 76 ------- TABLE 1 CHROMATOGRAPHIC OPERATION CONDITIONS flows. mi/mm Canier Gas: Helium Column Oven 60 to injector 75 Sample size, MLA 1.0-3.0 Enjector, °C 200 Column 5 Split ratio 15:1 Detector--TCD, CC 200 Awailaxy 3 Backflush. mm 0.2-0.3 --FID, °C 250 Makeup 18 Valve reset time 8-10 mm Valve °C 60 Total Analysis time 18-20 mm A) Sample size must be adjusted so that alcohols in the range of 0.1 to 12.0 mass % and ethers in the range of 0.1 to 20.0 mass % are eluted from the column and measured linearly at the detector. A sample size of 1.0 ML has been introduced in most cases. 77 ------- 13 TABLE 2 PERTINENT PHYSICAL CONSTANTS AND RETENTION CHARACFERISI1CS FOR TCEP/WCOT COLUMN SET CONDITIONS AS IN TABLE 1 Relati e Retention Relative Retention Time Molecular Density at Component Time. Mi ( MTBE = l.00 ( DME = l.00 Weight 15.56115 56C Water 2.90 0.58 0.43 18.0 1.000 Methanol 3.15 0.63 0.46 32.0 0.7963 Ethanol 3.48 0.69 0.51 46.1 0 7939 Isopropanol 3.83 0.76 0.56 60.1 0.7899 tert-Butanol 4.15 0.82 0.61 74.1 0.7922 n-Propanol 4.56 0.90 0.67 60.1 0.8080 MTBE 5.04 1.00 0.74 88.2 0.7460 ‘ ç-Butanol 5.36 1.06 0.79 74.1 0.8114 IPE 5.76 1.14 0.85 102.2 0.730( Isobutanol 6.00 1.19 0.88 74.1 0.805 ETBE 6.20 1.23 0.91 102.2 0.7452 tert-Pentanol 6.43 1.28 0.95 88.1 0.8170 1,2 .Dimethoxyethane (DME) 6.80 1.35 1.00 90.1 0.8720 n-Butanol 7.04 1.40 1.04 74.1 0.8137 Benzene 7.41 1.47 1.09 78.1 0.8830 TAME -8.17 1.62 1.20 102.2 0.7758 78 ------- 14 TABLE 3 PRECISION INTERVAL AS DETERMINED FROM COOPERATIVE STUDY DATA R t.it ]iiy Component MEOH EtCH iPA tB nPA MiBE iBA BA ETBE CAA nBA WI % 020 0.30 100 2.00 300 400 500 600 1000 12.00 14.00 1600 2000 003 004 006 009 Oil 012 014 0.15 019 021 Rei duab0it Component MEOH J nPA MTBE E I L1C.]I 0005 00! 00! 002 001 0Q4 002 OtJ 002 ‘)tY 002 OOd 002 003 003 003 004 004 Thul 00! 00! 001 0002 002 002 002 0003 003 002 003 0004 004 002 003 00! 005 001 006 008 007 009 0.08 009 010 015 0.!! 018 001 0002 002 002 003 005 00! 0004 004 003 005 006 002 001 007 005 007 007 003 001 011 008 011 008 004 011 005 . 014 006 017 007 019 009 028 010 0.32 O Il 0.36 013 0.40 014 047 Wt % 02.0 017 010 007 0.04 002 005 OIl 001 0.19 006 013 020 050 0.29 020 0.17 0.09 .003 012 0.12 004 0.34 0.15 022 0.34 1.00 044 0.35 0.32 018 0.05 0.fl 0.13 0.08 0.54 0.29 0.32 0.30 02b 2.00 0.67 06! 0.39 0.35 007 0.45 0.14 0.18 0.85 0.57 0.47 074 045 300 086 0.83 0.51 0.66 1.12 094 061 400 1.02 105 067 0.87 1.35 110 O 7 500 1.17 125 0.83 108 1.56 12.5 091 6.00 1.31 144 099 1.29 1.76 1.39 10.00 1 79 2.16 1.60 2.10 2.47 1 86 12.00 2.00 2.49 191 2.50 2.78 2.06 14.00 2.21 2.90 308 2.25 1600 2.51 3.29 3.37 2.43 20.00 3.10 4.08 3.90 2.76 79 ------- 15 REPEATABIliTY ESTIMATES FOR OXYGENATES IN GASOLINE Component Repeatability Methanol (MeOH) 0.06 x 0 • 51 ) Ethanol (EcOH) 0.03 (X 052 ) Isopropanol (1PA) 0.02 x 0 • 25 ) tert-Butanol (tBA) 0.03 (X 0 • 71 ) n .Propanol (nPA) 0.004 (X 0 • 47 ) MTBE 0.02 (X 0 ) sec-Butanol (sBA) 0.005 (XO. 53 ) Isobutanol (iBA) 0.07 (X 0 . 67 ) ETBE 0.05 (X 0 . 75 ) tert-Pentanol (tAA) 0.07 (X 0 . 64 ) n-Butanol (nBA) . 0.07 (X 016 ) TAME 0.01 (XO. 45 ) Total Oxygen 0.02 (X 0 • 88 ) where X is the mean mass percent of the component. 15.1.2 Repmducibility--The difference between two single and independent results obtained by different operators working in different laboratories on identical material would, in the long run, exceed the following values only in one case in twenty (see Table 3). ------- 16 REPRODUCIBILITY ESTIMATES IN OXYGENATES N GASOLINES Component Reproducibility Methanol (MeOH) o. . s (X 061 ) Ethanol (EtOH) 0.35 (X 079 ) Lsopropanol (iPA) 0.32 (X 088 ) teriButanol (tBA) 0.18 (X 095 ) n-Propanol (nPA) 0.05 (X 056 ) MTBE 0.23 (XO 96 ) sec-Butanol (sBA) 0.13 (XO 09 ) Isobutanol (1BA) 0.08 (xl . 20 ) ETBE 0.54 (X 0 ) tert-Pentanol (tAA) 0.29 (X 097 ) n-Butanol (nBA) 0.32 (X 0 . 55 ) TAME 0.50 (X 0 • 57 ) Total Oxygen 0.26 (X 078 ) where X is the mean mass percent of the component. 15.2 Bias--The National Institutes of Standards and Technolo ’ (NIST) provides selected alcohols in reference fuels. As an example the following standard reference materials (SR 1 M) in reference fuels are available as described in the NIST Standard Reference Catalog. 8 Nominal Concentration, Mass % of SRM Type MeOU EtOH MeOH + tHuOH 1829 Alcohols in Reference Fuel 0.335 11.39 10.33 + 6.63 1837 Methanol and tert-butanol 10.33 + 6.63 1838 Ethanol 11.39. 1839 Methanol 0.335 1& Key Words MTBE (Methyl tert-butylcther) ETBE (Ethyl tert-butylether) TA1 vfE (Tert-amylmethylether) DIPE (Disopropylether) Alcohols Ethers Oxygenates Gasoline Gas Chromatography 81 ------- ‘.7 LI FOOTNOTES 1. This test method is under the junsdiction of ASTM Committee D-2 on Petroleum Products and Lubricants and is the direct responsibility of Subcommittee D02.04 on Hydrocarbon Analysis. Current edition approved October 27, 1989. Published December 1989. Orginally published as D 4815-88. Last previous edition D 4815-88. 2. Annual Book of ASTM Standards, Vol 05.03. 3. Annual Book of ASTM Standards, Vol 14.01. 4. Available from Hewlett Packard Company, Avondale, PA. 5. Annual Book of ASTM Standards, Vol 05.01 6. Available from Supelco Inc., Bellefonte, PA 7. Supporting data are/will be available from ASTM Headquarters, Request RR: D)2- 8. NIST Special Publication 260; NIST Standard Reference Materials 1990-1991 First Draft, Sub.D02.04L 12/19/91 Second Draft, Sub D02.04L 1/3 1/92 Third Draft, Sub.D02.04L, 2/28/92 Fourth Draft, Sub.D02.04L 7/7/92 Fifth Draft, Sub. D02.04, 8/4/92 Sixth Draft, Sub D02.04, 8/20192 82 ------- ::- ‘. vE rr : - : ‘ . __________ ‘ H ‘ _ •\ ‘ _ : ____ U ; l1 I 1 / ccCT 1 L.. ccN-r cL.Z?. A POLAt (I , L)C — PL1’ NJEC r :ri ?OLA.R (TC ) CCL .L’ C.”., _SSPL IT vtrr PLIT INJEC CB j ACK1L ?c itiO FIG. t Crvqeftate$ ui Gascuns Sd efI ci , ‘,e AD ;L TAELZ c: a’ v rr e L 4- Lb. A 4 L..... •,17 . I v e C.r ffT11OqraCfltC £y3tM ------- I I III I ••7._ , I • ..i . . • • —..—— I ii.. i •‘ .I• Iu it • ‘,i .1111 iIui’wliij’ tlxyt tII.it 1 .; ii -4 0 C ‘I in C w C U, ‘4 4, I.1 ‘I • I I. II U ‘I Ui H ‘ i I i \, _• —-I - T1 I 1 TJ v—I—l— 1’v_ I1 J—r-r—1-—r—j— I—,—_,— .._,_., _.,_ 1 ——v—i ,-- I ‘—‘ U U 1 0 2.0 3 0 4.0 5.0 6.0 7.0 6.0 9.0 10 0 q 0 ‘3 C U n . IJ I.. U, —1 0 C U I. I .. U i -i 0 M I NU , S ------- Appendix C - Test Procedure Test for the Determination of Oxygenates in Gasoline 1. Scope and application. 1.1. The following single-column, direct-in)ection gas chromatographic procedure is described in detail to completely define a single technique for quantifying the oxygenate content of gasoline. Other procedures with similar capabilities are allowed provided they comply with the quality control requirements og section 8 below. 1.2 This method covers the quantitative determination of the oxygenate content of gasoline through the use of an oxygenate flame ionization detector (OFID). It is applicable to individual organic oxygenated compounds (up to 20 mass percent each) in gasoline having a final boiling point not greater than 220 c. Samples above this level should be diluted to fall within the specified range. 1.3 Where trade names or specific products are noted in the method, equivalent apparatus and chemical reagents may be used. Mention of trade names or specific products is for the assistance of the user and does not constitute endorsement by the U.S. Environmental Protection Agency. 2. Summa.ry of method. 2.1 A sample of gasoline is spiked to introduce an internal standard, mixed, and injected into a gas chromatograph (GC) equipped with an OFID. After chromatographic resolution the sample components enter a cracker reactor in which they are stoichiometrically converted to carbon monoxide (in the case of oxygenates), elemental carbon, and hydrogen. The carbon monoxide then enters a methanizer reactor for conversion to water and methane. Finally, the methane generated is determined by a flame ionization detector (PID). 2.2 All oxygenated gasoline components (alcohols, ethers, etc.) may be assessed by this method. 2.3 The total mass percent of oxygen in the gasoline due to oxygenated components may also be determined with this method by summation of all peak areas except for dissolved oxygen, water, and the internal standard. 3. Sample handling and preservation. 3.1 Samples shall be collected and stored in containers which will protect them from changes in the component contents of the gasoline, such as loss of volatile fractions of the gasoline by evaporation. 3.2 If samples have been refrigerated they shall be brought to room temperature prior to analysis. 3.3 Gasoline is extremely flammable and should be handled cautiously and with adequate ventilation. The vapors are harmful if inhaled and prolonged breathing of vapors should be avoided. Skin contact should be minimized. 4. Apparatus. 85 ------- 4.1 A CC equipped with an oxygenate flame ionization detector. 4.2 An autosampler for the CC is highly recommended. 4.3 A 60—rn length, 0.25-mm ID, l.0—,. film thickness, nonpolar capillary GC column (J&W DB—]. or equivalent) is recommended. 4.4 An integrator or other acceptable system to collect arid pro esa the CC signal. 5. Reagents and Materials. Note: Gasoline and many of the oxygenate additives are extremely flamaable and may be toxic over prolonged exposure. Methanol is particularly hazardous. Persons performing this procedure must be familiar with the chemicals involved and all precautions applicable to each. 5.1 Reagent-grade oxygenates for internal standards and for preparation of standard solutions. 5.2 Supply of oxygenate-free gasoline for blank assessments and for preparation of standard solutions. 5.3 Calibration standard solutions containing known quantities of suspected oxygenates in gasoline. 5.4 Calibration check standard solutions prepared in the same manner as the calibration standards. 5.5 Reference standard solutions containing known quantities of suspected oxygenates in gasoline. 5.6 Glass standard and test sample containers (between 5 and 100 mL capacity) fitted with a self-sealing polytetrafluoroethlene (PIFE) faced rubber septum crimp on or screw down sealing cap for preparation of standards and samples. 6. Calibration. 6.1 Calibration standards of reagent—grade or better oxygenates (such as methanol, absolute ethanol, methyl t-butyl ether (MTBE), di-i-propyl ether (DIPE), ethyl t-butyl ether (ETBE), and t-amyl methyl ether (TAME)) are to be prepared gravimetrically by blending with gasoline that has been previously determined by GC/OFID to be free of oxygenates. Newly acquired stocks of reagent grade oxygenates shall be analyzed for contamination by GC/FID and GC/OFID before use. 6.2 Tare a glass sample container and its PTFE faced rubber septum sealing cap. Transfer a quantity of an oxygenate to the sample container through the septum and record the mass of the oxygenate to the nearest 0.1 ag. Repeat this process for any additional oxygenates of interest except the internal standard. Add oxygenate—free gasoline to dilute the oxygenates to the desired concentration. Record the mass of gasoline added to the nearest 0.1 mg, and determine and label the standard according to the mass percent quantities of each oxygenate added. These standards are not to exceed 20 mass percent for any individual pure component due to potential hydrocarbon breakthrough and/or loss of calibration linearity. 6.3 Inject a quantity of an internal standard (such as 2-butanol) through the rubber septum arid weigh the contents again. Record the difference in masses as the mass of internal 86 ------- standard to the nearest 0.1 mg. The mass of the internal standard shall amount to between 2 and 6 percent of the mass of the test sample (standard). The addition of an internal standard reduces errors caused by variations in injection volumes. 6.4 Ensure that the prepared standard is thoroughly mixed and transfer approximately 2 mL of the solution through the septum of a vial compatible with the autosampler if such equipment is used. 6.5 Based on the recommended chrowatographic operating conditions (section 7.1 below), determine the retention time of each oxygenate .component by analyzing dilute aliquots either separately or in known mixtures. Reference should be made to the Chemical Abstracts Service (CAS) registry number of each of the analytes for proper identification. Approximate retention times for selected oxygenates under these conditions are as follows: Oxygenate CAS Retention time inut.. where: R 10 = R,— A 0 — A = M 0 — = oxygen Dissolved Water Methanol Ethanol Propanone 2 -Propanol t-Butanol n—Propanol MTBE 2-Butanol DI PE i-Butano l ETBE t-Pentanol n—Butanol TAME i-Pentano l 7782—44—7 3.85 7732—18—5 4.28 67—56—]. 4.71 64—17—5 5.66 67—64—1 6.29 67—63—0 6.63 75—65—0 7.46 71—23—8 8.60 1634—04—4 9.41 15892 23—6 10.58 108—20—3 11.30 78—83—1 12.30 637—92—3 12.50 75—85—4 13.23 71—36—3 14.40 994—05—8 15.40 137—32—6 17.19 6.6 By GC/OFID analysis, determine the peak area of each oxygenate and of the internal standard. 6.7 Obtain a calibration curve by performing a least-squares fit of the relative area response factors of the oxygenate standards to their relative mass response factors as follows: Ru,, — b 0 R +b 1 (R. ,) 2 relative area response factor of the oxygenate, A 01 A relative mass response factor of the oxygenate, LjM area of the oxygenate peak area of the internal standard peak mass of the oxygenate added to the calibration standard mass of internal standard added to the calibration 87 ------- standard b 0 — linear regression coefficient b 1 — quadratic regression coefficient 6.8 Before proceeding with the analysis of samples, the least—squares regression should be evaluated for goodness—of-fit. 7. Procedure. 7.1 GC operating conditions: 7.1.1 Oxygenate—free helium carrier gas: 1.1 aL/sin (2 bar), 22.7 ca/sec at,115 °C 7.1.2 Carrier gas split ratio: 1:100 7.1.3 Zero—air FID fuel: 370 aL/mm (2 bar) 7.1.4 oxygenate—free hydrogen FID fuel: 15 aL/mm (2 bar) 7.1.5 Injector temperature: 250 °C 7.1.6 Injection volume: 0.5 sL 7.1.7 Cracker reactor temperature: sufficiently high to ensure reduction of all hydrocarbons to the elemental states (i.e., C 1 H ->C+H 2 , etc.) 7.1.8 FID temperature: 400 °C 7.1.9 Oven temperature program: 40 °C for 6 sin, followed by a temperature increase of 5 OC/min to 50 °C, hold at 50 °C for 5 sin, followed by a temperature increase of 25 OC/mjn to 175 °C, and hold at 175 °C for 2 sin. 7.2 Prior to analysis of any samples, inject a sample of oxygenate-free gasoline into the CC to test for hydrocarbon breakthrough overloading the cracker reactor. If breakthrough occurs, the OFID is not operating effectively and must be corrected before samples can be analyzed. 7.3 Prepare gasoline test samples for analysis as follows: 7.3.1 Tare a glass sample container and its PTFE faced rubber septum sealing cap. Transfer a quantity of the gasoline sample to the sample container thxeugh the septum and record the mass of the transferred sample to the nearest 0.1 ag. 7.3.2 Inject a quantity of the same internal standard (such as 2-butanol) used in generating the standards through the rubber septum and weigh the contents again. Record the difference in masses as the mass of internal standard to the nearest 0.1 ag. The mass of the internal standard shall amount to between 2 and 6 percent of the mass of the test sample (standard). The addition of an internal standard reduces errors caused by variations in injection volumes. 7.3.3 Ensure that this test sample (gasoline plus internal standard) is thoroughly mixed and transfer approximately 2 mL of the solution through the septum of a vial compatible with the autosaspler if such equipment is used. 7.4 After GC/OFID analysis, identify the oxygenates in the sample based on retention times, determine the peak area of each oxygenate and of the internal standard, and calculate the relative area response factor for each oxygenate. 7.5 Monitor the peak area of the internal standard. A larger than expected peak area for the internal standard when analyzing 88 ------- a test sample may indicate that this oxygenate is present in the original sample. Prepare a new aliquot of the sample without addition of the oxygenate internal standard. If the presence of the oxygenate previously used as the internal standard can be detected, then either (1) the concentration of this oxygenate must be assessed by the method of standard additions or (2) an alternative internal standard, based on an oxygenate that is not present in the original sample, should be utilized with new calibration curves. 7.6 Calculate’the relative mass response factor (R ) for each oxygenate based on the relative area response factor (R ) and the calibration equation of section 6.7 above. 7.7 Calculate the mass percent of the oxygenate in the test sample according to the following equation: RJ( (l00%) = M, where: = mass percent of the oxygenate in the test sample fl = mass of sample to which internal standard is added 7.8 If the mass percent exceeds the calibrated range, gravimetrically dilute a portion of the original sample to a concentration within the calibration range and analyze this sample starting with section 7.3 above. 7.9 Report the total mass percent oxygen as follows: 7.9.1 Subtract the peak areas due to dissolved oxygen, water, and the internal standard from the total summed peak areas of the chromatogram. 7.9.2 Assume the total summed peak area solely due to one of the oxygenates that the instrument is calibrated for and determine the total mass percent as that oxygenate based on section 7.7 above. For simplicity, choose an oxygenate having one oxygen atom per molecule. 7.9.3 flultiply this concentration by the molar mass of oxygen and divide by the molar mass of the chosen oxygenate to determine the mass percent oxygen in the sample. For example, if the total peak area is based on MTBE, multiply by 16.00 (the molar mass of atomic oxygen) and divide by 88.15 (the molar mass of MTBE). 7.10 Sufficient sample should be retained to permit reanalysis. 8. Quality control of precision and accuracy. 8.2. The laboratory shall routinely monitor the repeatability (precision) of its analyses. The recommendations are: 8.1.1 The preparation and analysis of laboratory duplicates at a rate of one per analysis batch or at least one per ten samples, whichever is more frequent. 8.1.2 Laboratory duplicates should be carried through all sample preparation steps independently. 8.1.3 The range CR) for duplicate samples should be less than the following limits: 89 ------- Oxygenate Concentration Upper Limit for Range mass p.rc.nt mass p.rc.nt Methanol. 0.27 to 1.07 0.010+0.043C Methanol 1.07 to 12.73 0.053C Ethanol. 1.01 to 12.70 0.053C MTSE 0.25 to 15.00 0.069+0.029C DIPE 0.98 to 17.70 0.048C ETBE 1.00 to 18.04 0.074C TAME • 1.04 to 18.59 O.060C wh•rsz C — (C 0 +C 4 )/2 Co — concentration of the original sample Cd = concentration of the duplicate sample R = Range, CQ—Cdi 8.1.4 If the above limits are exceeded, the sources of error in the analysis should be determined, corrected, and all analyses subsequent to and including the last duplicate analysis confirmed to be within the compliance specifications must be repeated. The specification limits for the range and relative range of duplicate analyses are linimum performance requirements. The performance of individual. laboratories may indeed be better than these minimum requirements. For this reason it is recommended that control charts be utilized to monitor the variability of measurements in order to optimally detect abnormal Bituations and ensure a stable measurement process. 8.1.5 For reference purposes, a single laboratory study of repeatability was conducted on approximately 27 replicates at each of five concentrations for each oxygenate. The variation of wraE analyses as measured by standard deviation was very linear with respect to concentration. This relationship is described by the equation: standard deviation — O.00784*C+0.0187 where concentration is expressed as mass percent. This relationship is valid over the concentration range of 0.25 to 15.0 mass percent. 8.1.6 The other oxygenates of interest, methanol, ethanol, DIPE, ETBE, and TAME, had consistent coefficients of variation at one mass percent and above: - Oxygenate Concentration Coefficient of Variation mass p.rcertt p.rcent of point Metnanol 1.07 tO 12.73 1.43 Ethanol 1.01 to 12.70 1.43 DIPE 0.98 to 17.70 1.29 ETBE 1.00 to 18.04 2.00 TAME 1.04 to 18.59 1.62 90 ------- 8.1.7 The relationship of standard deviation and concentration for methanol, between 0.27 and 1.07 sass percent was very linear and is described by the equation: standard deviation — 0.Olla*C+0.0027 8.1.8 Based on these relationships, repeatability for the selected oxygenates at 2.0 and 2.7 mass percent oxygen were determined to be as follows: Oxygenate • sass percsnt oxyg.n Concentration Repeatability mass p.rc.nt mass psrcsnt oxyq.nat. volums psrcent oxyq.nat. fletflLfloi .0 4.00 J.1 Eth.nol 2.0 5.75 5.41 0.16 HTBI 2.0 11.00 11.00 0.21 DIP! 2.0 12.77 13.00 0.32 !TBZ 2.0 12.77 12.74 0.50 2.0 12.77 12.33 0.41 Hithanol 2.7 5.40 5.07 0.15 Sthanol 2.7 7.76 7.31 0.21 MTBE 2.7 14.88 14.88 0.26 DIPS 2.7 17.24 17.53 0.43 ETBE 2.7 17.24 17.20 0.67 TAI 2.7 17.24 16.68 0.55 where repeatability is defined as the half width of the 95 percent confidence interval (i.e., 1.96 standard deviations) for a single analysis at the stated concentration. 8.2 The laboratory shall routinely monitor the accuracy of its analyses. The recommendations are: 8.2.1 Calibration check standards and calibration standards may be prepared from the same oxygenate stocks and by the same analyst. However, calibration check standards and calibration standards must be prepared from separate batches of the final diluted standards. For the specification limits listed in section 8.2.3, the concentration of the check standards should be in the range given in section 8.1.3. 8.2.2 Calibration check standards should be analyzed at a rate of one per analysis batch or at least one per ten samples, whichever is more frequent. 8.2.3 If the measured’concentration of a calibration check standard is outside the range of ’l00.0±6.0 percent of the theoretical concentration for a selected oxygenate of 1.0 mass percent or above, the sources of error in the analysis should be determined, corrected, and all analyses subsequent to and including the last standard analysis confirmed to be within the compliance specifications must be repeated. The specification limits for the accuracy of calibration check standards analyses are minimum performance requirements. The performance of individual laboratories may indeed be better than these minimum requirements. For this reason it is recommended that control charts be utilized to monitor the variability of measurements in order to optimally detect abnormal situations and ensure a stable 91 ------- measurement process. 8.2.4 Independent reference standards should be purchased or prepared from materials that are independent of the calibration standards and calibration check standards, and must not be prepared by the same analyst. For the specification limits listed in section 8.2.6, the concentration of the reference standards should be in the range given in section 8.1.3. 8.2.5 Independent reference standards should be analyzed at a rate of one per analysis batch or at least one per 100 samples, whichever is mqre frequent. 8.2 • 6 If the measured concentration of an independent reference standard is outside the range of 100.0±10.0 percent of the theoretical concentration for a selected oxygenate of .1.0 mass percent or above, the sources of error in the analysis should be determined, corrected, and all analyses subsequent to and including the last independent reference standard analysis confirmed to be within the compliance specifications in that batch must be repeated. The specification limits for the accuracy of independent reference standards analyses are minimum performance requirements. The performance of individual laboratories may indeed be better than these minimum requirements. For this reason it is recommended that control charts be utilized to monitor the variability of measurements in order to optimally detect abnormal situations and ensure a stable measurement process. 92 ------- Appendix D - Illustrative CPA Report (Address to the CAR’S management and state regulatory agency] I/We have applied the procedures enumerated below to the accompanying (title of the CAR’s oxygenated fuels report(s) filed with the state] for the (control area(s)] for the (averaging period(s)]. These procedures, which were included in (describe the applicable ,state regulations] and agreed to by (the CAR’s management), were performed solely to assist (the CAR and the state agency] in evaluating (name of CAR)’s compliance with reporting on oxygenated fuels distribution under (applicable state regulation(s)]. This report is intended solely for the information of (the CAR’S management) and (the applicable state agency] and should not be used by others. (Include paragraph to enumerate procedures and findings.] These agreed-upon procedures are substantially less in scope than an examination, the objective of which is the expression of an opinion on (the CAR’S report]. Accordingly, we do not express such an opinion. Had I/we performed additional procedures or had we made an examination of such data, other matter might have come to our attention that would have been reported to you. (Signature) (City, State] (Date] Note: This report is for illustrative purposes only and is based upon reporting Statements on Standards for Attestation Engagements of the American Institute of Certified Public Accountants °1989, which were applicable at the time of issuance of these guidelines. The CPA issuing such reports under the applicable state regulations should revise it, as necessary, to reflect any additional guidance issued and changes subsequently made to those reporting standards. 93 ------- Appendix.E - Illustrative CIA or Internal Auditor Report (Address to the CAR’s management and state regulatory agency] I/we have applied the procedures enumerated below to the accompanying (title of the CAR’s oxygenated fuels report(s) filed with the state] for the (control area(s)] for the (averaging period(s)]. These procedures, which were included in [ describe th applicable state regulations] and agreed to by (the CAR’s management] and (the applicable state agency], were performed solely to assist (the CAR management and the state agency] in evaluating [ name of CAR)’s compliance with reporting on oxygenated fuels distribution under [ applicable state regulation(s)]. This report is intended for the information of (the CAR’s management] and (the applicable state agency] and accordingly is not addressed to and should not be used by others. (Include a section to enumerate procedures and finding in accordance with Codification of Standards for the Professional Practice of Internal Auditing; Std. 430: Communicating Results. This section should include the following elements: Criteria:The standards, measures or expectations used in making an evaluationand/or verification (what should exist). Condition:The factual evidence which the internal auditor found in the course of the examination (what does exist). Cause:The reason for the difference between the expected and actual conditions (why the difference exists). Effect:The risk or exposure the auditee organization and/or other encounterbecause the condition is not the same as the criteria (the impact of the difference) .3 [ Signature] (Credentials] (Address] [ Title] (Date) 94 ------- R. Sanctions/FIPs ------- R. Sanctions and FIPs R.l. State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act Deadlines - - Oct. 28, 1992 memo from John Calcagni R.2. Impact of Conditional Approvals on Sanction and Federal Implementation Plan (FIP) Clocks - - July 14, 1993 memo from D. Kent Berry ** Findings of Failure to Submit I/M SIPs - - Jan. 1994 memo from Philip A. Lorang R.3. Imposition of Statewide Sanctions on California Under Clean Air Act Section 110(m) for Failure to Submit a Complete SIP Revision for an Enhanced Motor Vehicle Inspection and Maintenance Program, 59 FR 3534 (Jan. 24, 1994) R.4. Federal Highway Funding Assistance Limitations and Emissions Offset Requirements; Illinois, 59 FR 3540 (Jan. 24, 1994) R.5. Federal Highway Funding Assistance Limitations and Emissions Offset Requirements; Indiana, 59 FR 3544 (Jan. 24, 1994) R.6. Criteria for Exercising Discretionary Sanctions Under Title I of the Clean Air Act, 59 FR 1476 (Jan. 11, 1994) R.7. Selection of Sequence of Mandatory Sanctions for Findings Made Pursuant to Section 179 of the Clean Air Act, 59 FR 39832 (Aug. 4, 1994) R.8. Notice of Areas Potentially Subject to Sanctions Based on Findings Issued Under Section 179 of the Clean Air Act, 59 FR 39863 (Aug. 4, 1994) R.9. Revised Guidance on the Treatment of Federal Implementation Plan Clocks Following Section 179 Findings -- Apr. 24, 1995 memo from Sally Shaver P I0 N °IZ - £ e/I. . p i ric -fcii’ i LS ------- Zi -v ‘ ri !Io(?)( t) L ’ , ’ ’ - UNITED STATES ENVIRONMENTAL PROTECTION AGENCY I” Office of Air Quality Planning and Standards ______ Research Triangle Park. North Carolina 27711 4( DQQ OCT 28 1992 MEMORANDEJI4 SUBJECT: State Implementation Plan (SIP). Actions Submitted in Response to Clean Air Act , A 5 t) D ,jt1ines F ‘ - ‘ • 7 FROM: John Calcagni, Director ‘..Ze’Cd Air Quality Management D vi1ion,OAQPS P0—15) •1 / TO: Director, Air, PesticIdes and Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation, and toxic ! visivn, Region III pirector, Air and Radiation Division, Region V Director, Air, Pesticides, and Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X The purpose of this meaorapdua is to clarify issues related to redesignation requests and SIP actions submitted in response to Act deadlines, and specifically address SIP elements that are due November 15, 1992. The follbwing topics are addressed below: completeness determinations on commitment subaittals; requests for parallel processing to meet Act deadlines; effect of redesignation requests on mandatory Act subaittals; completeness determinations on emission inventory subatttals; and issuing letters to the States making a finding of failure to submit a required SIP, or SIP element. Completer1 a Determinations on Commitment Submittals In anticipation of commitment SIP’S being submitted to the Environmental Protection Agency (EPA) as authorized by section 11O(k)(4) of the Act, my staff are working with the Office of General Counsel (OGC) to revise the completeness criteria in Appendix V of 40 CFR Part 5l. Specifically, it is our intent to include specific completeness criteria for committal SIP’s. A July 22, 1992 memorandum from Michael Shapiro identified a number of statutory requirements for which EPA is inclined to accept committal SIP’s. (A clarification of that memorandum was issued by Michael Shapiro on September 16, 1992.) ------- 2 The current completeness criteria do not address comait nts submitted under section L10(k)(4) of the Act. However, we are interpreting section 11O(k)(4) as allowing EPA to accept commit- ments from a State as complete submittals even though commitments will lack some of the substantive elements required under the current completeness criteria. Consequently, committal SIP’S submitted to EPA should be reviewed against only those elements of the completeness criteria that are directly applicable to commitments in order to be determined complete. The elements of the completeness criteria that are applicable to commitments are: 1. A formal letter of submittal from the Governor or his designee requesting EPA approval of the commitment. 2. The commitment was subject to a public hearing pursuant to 40 CFR 51.102. 3. The submittal contains a schedule for the adoption of the statutorily required measures. Additionally, States should be encouraged to submit documentation and a justification explaining the need for a commitment. If a Regional Office receives a submittal that contains one or more commitments in association with other rules or control measures, the Region should consult with the responsible Headquarters program office to determine if a commitment is acceptable in that specific circumstance. (Please refer to my July 9, 1992 memorandum entitled “Processing of State Im )le1nentation Plan Submittals, 0 specifically the part n cc ditional approvals.) ‘ If EPA 4etermines that it vi ]. consider tI a commitment under the conditidnal approval process, the commitment should be reviewed only as to the criteria that would be applicable for commitments. However, if EPA determines that a commitment cannot be used to meet the statutory requirement, the submittal should be reviewed against all elements of the completeness criteria. Requests for Parallel Processing to Meet Act Deadlines The EP .xpects a number of States to request parallel processing of draft rules as a way to meat Act deadlines. A State request for parallel processing is not an official submittal satisfying a statutory deadline since it is a draft rule (i.e., the State has yet to adopt the regulation). When the completeness criteria were promulgated with an exception for parallel processing, EPA was not anticipating submittals subject to statutory deadlines. The intent was to continue the timesaving concept of parallel processing State— initiated actions. However, the exceptions in the completeness criteria could be interpreted as requiring EPA to accept draft ------- 3 rules in order to meet statutory deadlines. As noted above, draft submittals are not considered plan submittals under the Act because they have not been adopted by the State. Consequently, EPA is not precluded from making a finding of failure to submit a required SIP element when a State submits a draft rule. If a request for parallel processing is submitted to EPA before the statutory deadline, EPA may agree to parallel process the action. However, EPA will not make a completeness finding under section 11O(k)(1) since that section applies to official plan submittals and not draft rules. However, if the statutory deadline passes and a State has not submitted the fully—adopted regulation, the Regions should make a finding of failure to submit under section 179(a)(1). This will initiate the sanctions time clock. Subsequently, if a State submits a fully—adopted rule or maintenance plan, EPA will review the submittal against the completeness criteria. The EPA will commence rulemaking action if the submittal is complete. If the completeness criteria are met, a finding of completeness will stop the time clock for sanctions. If the completeness criteria are not met, EPA should make a finding of incompleteness, thereby maintaining the previous time clock for sanctions. Because the parallel processing exception could be interpreted to require EPA to accept draft rules as meeting a statutory deadline, we are presently revising the completeness criteria to remove the parallel processing exception. It should be noted, however, that although parallel processing subaittals are not official plan submittals 1 EPA will continue to use parallel processing as an effective avenue for approving State rules expeditiously. Effect of Redesignation Requests on Mandatory Act Submittals It has come to our attention that some States plan to submit redesignation requests prior to November 15, 1992 with the understanding that this will exempt them from implementing mandatory k t programs due to start in November (e.g., oxygenated fuels program, stage II vapor recovery rules, etc.). The - approvability of a redesignation request is based on the requirements applicable as of the date of submittal of a complete redesignation request. a States, however, are statutorily 2 For a redesignation request to be complete, any portions of the redesignation request that are SIP revisions (e.g., maintenance plans and any additional control measures) must meet the completeness criteria for SIP revisions. Redesiqnation requests submitted for parallel processing will not be considered official submittals; therefore, they will not be treated as complete submittals. ------- 4 obligated to meet SIP requirements that become due any time before an area is actually redesignated to attainment. Such redesignation occurs when EPA has taken final rulemaking action to approve a redesignation request. Hence, if there is a failure by the State to meet a statutory deadline for an area (before EPA has redesignated the area as attainment), a finding o failure to submit should be made. This, in turn, begins the sanctions process under section 179(a) (see September 4, 1992 memorandum, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment”). The f lings letter should recognize any pending redesiç ton reques , note the State’s statutory c gation toimple - any mandatcry requirements that are due, - indicate that f the sanctions will be imposed after 18 nor :s unless EPA ap as the redesignation request before the 18-nor h period has enc Thus, the Regions should make all reasonable attempts to ensure that the redesignation approval process does not take over 18 months. Completeness Determinations on Emission Inventory Submittals In a September 29, 1992 memorandum from William Laxton and myself addressing public hearing requirements for emission inventory subaittals, it was stated that EPA was providing a “de miniinis” deferral of the public hearing requirement for emission inventory submittals. In that memorandum, it was also stated that if emission inventory submittals do not meet the completeness criteria (except for the deferred public hearing requirement), EPA should make a finding of incompleteness. However, that memorandum did not specify the process for making completeness determinations on eáission inventory subnittal.s that only lack the public hearing element. After discussion with OGC, we have de1 ermined that for the emission inventory subaittals that a e only lacking evidence of a public hearing, EPA should make a finding of completeness contingez ,upon the State fulfilling the public hearing requireaá a. The completeness letter to the State should indicat. the completeness determination is contingent upon the Stat’ fulfilling the public hearing requirement by the time identified in the September 29 memorandum. If the public hearing requirement is not met by the time specified, then EPA will make a finding of incompleteness on the original emission inventory submittal. The completeness letter should further state that t e public earing requirement must be met before or at the tin. of submitt £ of a rate-of-progress or maintenance plan, or at th. time the inventory takes on regulatory significance such as providing a basis for banking or trading. ------- 5 As noted in the September 29 memorandum, EPA also is providing a “de minimis” deferral of the requirement for EPA to take action On the emission inventory submittals. The 12-month statutory timeframe for approving or disapproving the emission inventory submittal will start at the time the public hearing requirement is met. If EPA has found the submittal incomplete, EPA will not be required to take approval action on the submittal. Issuing Letters to the States Making a Finding of Failure to Submit a Required SIP or SIP Element The Regional Offices should be planning to issue findings of failure to submit to States not meeting the November 1992 (and other) statutory deadlines. The Agency has taken a strong stance that such findings should be made soon after a due date baa passed. Notice that a State has failed to submit a SIP, or SIP element, is made in the form of a letter from the Regional Administrator to the Governor of a State. Please refer to the July 22, 1992 Shapiro memorandum, entitled “Guidelines for State Implementation Plan (SIP) Subaittala Due November 15, 1992,” for further information. Further guidance will be made available on the schedule and format of the findings. If you have any questions on this memorandum, please contact Denise Gerth at (919) 541-5550. cc: Chief, Air Programs Branch, Regions I-X John Cabaniss Jeff Clark Denise Devoe Tom Helms Steve Butte Steve Hoover Ed Lillis David Mobley Rich Ossias Joe Paisie Lydia Wegman ------- S7 4 , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards Research Triangle Park, North Carolina 27711 4 L qQ JUL 14 1993 MEL4ORANDUM SUBJECT: Impact of Conditional Approvals on Sanction and Federal Implementation Plan (FIP) Clocks,,, FROM: D. Kent Berry, Acting Director 1) (< i’5 . Air Quality Management Division (MD-15) TO: Director, Air, Pesticides and Toxics Managemen Division, -Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X The purpose of this memorandum is to clarify the Impact of conditional approvals on the sanction and FIP clocks initiated by findings of failure to submit a State implementation plan (SIP) or complete SIP under sections 179(a) and 11O(c)(l), respectively, of the Clean Air Act (Act), as amended.’ A July 9, 1992 ..memorandum from John Calcagni to the Air Division Directors entitled “Processing of State Implementation Plan (SIP) Submittala” provides guidance on how the sanction and FIP clocks functIon t does not address the effect of conditional approval on the sä$ tion and YIP clocks. The July 1992 guidance indicates that to s the sanction clock following a section 179(a) finding, the State must correct the deficiency prompting the finding. A finding of failure to submit a plan or complete plan is corrected when. the State submits a plan the Environmental Protection Agency (EPA) finds complete. Regarding the PIP clock, section 11O(c)(1) requires that the EPA promulgate a FIP LThis memorandum does not address the effect of conditional approval on sanction and PIP clocks initiated by SIP disapprovals, which will be addressed in future guidance. ------- 2 within 2 years of findings of failure to submit a plan or complete plan unless two conditions are met: the State corrects the deficiency, and the EPA approves the plan. The Effect o Coridicional Approval on Clocks Initiated by Findings of Nonsubmittal S&nction Clock Permanently Stops, FIP Clock Temporarily Stops As indicated in the July 9, 1992 guidance, when the EPA finds that a State i is failed to submit a plan or complete plan, 2 the sanction nd FIP clocks start on the date of the finding. If the EP.\ subsequently finds the late plan submittal complete, the sanct:on clock will permanently stop. If the EPA then takes final rulemaking action to conditionally approve the same plan, the FIP clock will temporarily stop. The sanction clock 1 iii permanently stop because the submittal of a SIP that the EPA finds complete corrects the finding of failure to submit. 3 The FIP clock will temporarily stop because both conditions for stopping the PIP clock will have been met. The complete SIP submittal correcting the deficiency prompting the finding satisfies the first condition for stopping the PIP clock, and the EPA taking final rulemaking action approving the plan satisfies the second FIP clock condition. The EPA believes that the FTP clock should only stop temporarily because the Act does not require the EPA to take duplicative FTP promulgation action to address the SIP’S inadequacy during the time intended for the State to meet the commitment of the conditional approval. However, the FTP clock does not permanently stop because a conditional approval can convert to a disapproval if a State fails to meet the commitment by submitting a plan revision that the EPA can fully approve. Thus, although the State has met the second condition, it is tempor r , and if the conditional approval converts to a disapproval, the FTP clock resumes where it stopped and a new sanction clock starts. 2 Note that plan or complete plan refers also to any submittal which we have indicated explicitly in guidance or elsewhere that we could accept as a committal SIP. 3 For guidance on finding committal SIP’S complete, see memorandum entitled “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (Act) Deadlines” from John Calcagni to Air Division Directors, Regions I-X, October 28, 1992. ------- 3 Following Conditional Approval, When Does FIP Clock Stop or Resume? The FIP clock w!ll stop permanently if the State fulfills its commitment and the EPA takes final action fully approving the plan. The clock will resume where it stopped (and the EPA will remain under its FIP obligation) and a new sanction clock will start if any one of three events occurs where the conditional approval converts to a disapproval. (See attached flowchart for graphic representation of how this process works.) One, if the State fails to submit anything to meet its commitment, the clock will resume on the date of the letter from the EPA to the State finding that it had failed to meet its commitment and that the SIP submittal has now been converted to a disapproval. The letter will be sent shortly after the final date for the State to meet its commitment. Two, if the State submits an incomplete SIP to meet its commitment, the clock will resume on the date that the EPA sends a letter of incompleteness to the State. If the EPA finds the SIP incomplete prior to the final date for meeting the commitment (i.e., in the case where the State submits the SIP before the due date), the YIP clock will resume on the final date for meeting the commitment if the State has not remedied the incompleteness finding by making a submittal the EPA finds complete. On that date, the EPA will notify the State by letter that the plan remains incomplete and that the PIP clock resumes.’ Three, if the State submits a SIP for which the EPA takes final disapprovalaction, the clock resumes on the effective date of the final action. (The Ju].y’9, 1992 guidance explains in detail how conditional approvals function.) ‘The guidance provided here clarifies the discussion in the July 9., l992 guidance of how conditional approvals may be converted to disapprovals in the event the State fails to submit anything ajid/or where the State makes a submittal that EPA finds incompl tØ. In the first case, if the State fails to submit anything the sanction and YIP clocks start on the date of the letter from E A to the State finding that it had failed to meet its commitment and the SIP has been converted to a disapproval. The letter is sent shortly after the final date for the State to meet its commitment. In the second case, if EPA finds the SIP incomplete, the sanction and YIP clocks start on the date of the EPA letter making the finding of incompleteness and notifying the State that it, therefore, failed to meet its commitment. However, if EPA finds the submittal incomplete before the date the submittal is due under the commitment, the sanction and YIP clocks do not start until the final date for meeting the commitment shortly after which time EPA will notify the State by letter that the SIP remains incomplete. ------- 4 General questions on this clarification should be directed to Chris Stoneman of the Sulfur Dioxide Particulate Matter Programs Branch (919/541-0823). Questions regarding application to spe if Ic programs should be directed to the appropriate program branr h within OAQPS. Attachw nt cc: Jane Armstrong, OMS William Becker, STAPPA/ALAPCO Phillip Lorang, OMS Rich Ossias, OGC Air Branch Chief, Regions I-X Regional Air Counsel, Regions I-X ------- Attachment (page 1 of 2) Yes (continued on Page 2 of Attachment) ------- Attachment (page 2 of 2) CFIP_Clock Temporarily Stops State Fuffihls commitment as L Scheduled? FIP Clock Resumes and New Sanction Clock Initiated (Continued From Page 1 of Attachment) $ ). No Yes EPA Finds Submittal complete? 1 No yves EPA Finally Fully Approves Submittal?_F $Yes No Clock Permanently stops) ( ) ------- 534 Federal. Register I Vol. 59. No. 15 1. Monday. January 24. 1994 I Proposed Rules vever. the NAS report concluded AppFOUCd Octobcr 22. 3993 -. ENVIRONMENTAL PROTECTION the expoSure of many participants JeSSC BIOW 2 . AGENCY . - haniber and field teStS WaS ScaetaiyofVe(cmfl5AfIaI . - equivalent to that of soldiers in World . 40 CFR Part 52 War I; and therefore the NAS report For the reasons set out in the (CA—47 2—6O9-4 FH1-4826—43 - concluded that the World War I and preamble. 38 CFR part 3 is proposed to chronic exjosure studies were relevant be amended as set forth below: Imposi on of Statewide Sanctions on to thoexpcrieflce in the chamber and - California Under Clean Air Act Section field tests. Since the NAS report only PART• AOJUDICA ON 110(m) for Failure to Submit a cxinsidered studies involving full-body Complete SIP Revision for an exposure. we believe that the NAS Subpanl A—Pension. Compensation. Enhanced Motor Vehicle Inspection findings regarding specific diseases are and DependenCY and IndemnitY and Maintenance Program ‘cnked only to lull:body exposure. and CompensatiOn - AGENCY: Environmental Protection Lot to patdi or drop tcsting 1. TheaüthorilY citation for part 3. AgenCy. . - ‘ We also propose to amend 38 CFR _______________________________ .316 bj! ad .ling a fequirement that subpart A. continues to read as follows: ACT1ON: Notice of proposed rulemaking . rvloe connection will not be . Authority: 38 U.S.C. 501(a ). unless - -. SUMMARY: The Environmental Pro(ection stablishéd if there is affirmative - -. otherwise noted. . . .. . - Agency (EPA) is proposing !his actionto vid iioe that establishes a nonservice- .. . Iatcd supervening condition or event 2.38 CFR 3.316 is revis&i to i’ead impose sanctions on California udder j . .. .. : the discretionarY sanction authority:i Is ( -- —“ med condition.. . follows:. - provided the Agency under the Clean IsbasedupoUa . S.316 - Claims based on ch oflic effects of Air Act, as amended in 1990, (CA.A or of the Immediate and ‘ expdsure to vesicant . -.. Act) for failure ythe S%eteto r ffed s.f fStadgu 5 .. -.. . .- v r, ..’- ’ ’ j Veterans Health (a Except as pm d d inpa aji ph. . complete SIP revision loran c i ..motor vehide Inspection imd wbt la revealed that , S... (b) of this ddion ’eXiIosUre to the . ‘ maintenance (I/MI program esi tornuitard gas result specified vesicsnt agents durln ,g ad-Lye . . by the Act for certain ozone ón - it was also military service idatth ,: .. nonoxide (CO) nonattaininel%t erei ability ‘j.: drcumstences described below 1n . ‘ November13, 1992. the California xposure should - paragraphs (a)(1) throu gli (3) ol this Resources Board (CARE). i exposure and section together withtbe subsequent - governor’s designee. subm L. The HAS :deve lopment of any of the, iiidicaLcd.. . commitment (committal SIP)lo.edopt id that delayed; conditions Is sufficient to establish . - .;an llMprogrefli by November15, 1993. , exposure may service conned-ion for that condition: The committal SIP provides foitho :: apear even though no acute ciTed-s . (1) Any vèrilied full.body exposure to adoption and Implementation clan were noted. Bealuse of this delay ifl nitrogen or sull *r mustard during active enhanced JIM prograni meeting all . . ; manifestatiOn of effects of mustard gas military service together with the requirements of EPA’s JIM regulations - e*posure reported by Ihe NAS. during subsequeni development of chronic .. ,and Includes an implementation i i- ,whk.h time the veteran may have been conjunctivitis. keratitis.torfleat . . - schedule. On June 28 ,1993, EPA - - .e Posed to other jo rvice ated . opacities. scar formation, or the . - proposed to conditionally upprovéthis causative conditions or events, we have following cancers: nasoph iyngeab committal SIP or alternatively to :.detennined that It Is reasonable to laryngeal; lung (except mesothelioma) disappro ie it if certain milestones V.. which may exist, just as we do for other or, squamous cell carcinoma of the skin, contained in the schedule were miss d.. consider evidence of Intervening cause A full SIP revision Induding stateS. preswnptlve conditions (See 38 g (2) Any verified It il-body exposure to legislative authority to implemetit the. 3.307(b)). . - - nitrogen or sulfur mustard or Lewis jte program was required by November 15, The Secretary hereby certifies that during active military service together 1993. The State Legislature adjourned..,, this regulatory amendment will not with the subsequent development of a on September 10. 1993 without having havo a significant economic impad chronic form of laryngitis. bronchitis, enacted legislation providing authority a substantial number of small entities as emphysema. asthma or chronic for implementing the enhanced l/M they are defined in the Regulatory obstnjctive pulmonary disease. program. FlexibilitY Act (RFA). 5 U.S.C. 601—612. (3) Any verified full-body exposure to On November 15, 1993, the State - The reason for this certification is that nitrogen mustard during active military submitted a document entitled ‘VehicIe this amendment would not directly service together with the subsequent Inspection and Maintenance Program affect any small entities. Only VA development of acute nonlymphocytic SIP Revision” (the “proposed SIP beneficiaries could be directly affected. leukemia. revision”). The proposed SEP revision Therefore, pursuant to S U.S.C. 605(b), ( Se ce connection will not be was missing critical elements required this amendment is exempt from the established under this section If the for compliance with section 182(c)(3) of initial and final regulatory flexibility - claimed condition is due to the the AcL On December 30.1993. EPA analysis requirements of sectionS 603 veteran’s own willful misconduct (See -Region 9 issued a letter finding that the and 604. § 3.301(C)) or there is affirmative State had Jailed to submit a complete SIP revision required under sections 110 (The Cetalcg of Federal Domestic Assistance evidence that estaJ lishes a nonservice- and 182 of the Act. The letter dated program numbers are64.IOO and related supervening condition or event December 30,1993. notified the State - List of Subjects in 36 CFR Part 3 as the cause of the claimed condition that the proposed SIP revision was (See § 303). Administrative practice and incomplete because it had not been procedure. Claims. Handicapped. (FRD0c. 94-1484 Filed 1 21—94: 10:00 *.in.l subject to public notice. Due to the Health care. Pensions. Veterans. iwi G cooc 53 20 -O1-U failure of the State to submit a complete ------- Federal l egister / Vol.59, No. 15 / Monday, January 24, 1994 / Proposel RUleS -35 5 1P revision fulfilling either the - - Under section.s 182(c)(3) and 187(b)(1) . or other legal authority and adoption of equirements of the Act or its of the Act. areas designated as serious final regulations. Aaeptance of IIM ommitment to adopt and implement an and worse ozone nonattainment areas committal SIPs in lieu of full SIPs was mhanced 1/M program as promised in with 1980 populations of 200,000 or- - justified by the fact that S(ates could not ts committal SIP, EPA proposes to more and CO nonattaijunent areas with •have been expected to begin xercise its disaetionary authority design classificotions above 12.7 ppm development of an I/M program meeting inder the Act to apply a statewide and populations of 200,000 or more, in the requirements of the Act and the If iighway funding limitation sanction addition to metropolitan statistical areas M regulation until the IIM regulation md a 2 for I offset sanction in all areas with populations of iOO .000 or more in was adopted as a final rule, which did uquired to have a permit program - the northeast ozone transport region. are not oxur until November 5. 1992. A inder the new source review provisions required to meet EPA regulations for complete SIP revision which contained f the AcL - - - - ‘enhanced” I ’M programs. These areas all of the elements identified in the )ATES: Comments must be received on were required to submit a SIP revision - adoption schedule, including the r before March 15, 1994. EPA will hold to incorporate an enhanced I/M program authorizing legislation and - - public hearing on this proposed action into the SIP by November 15, 19 2. In implementing regulations, was required n Thursday, M h 3,1994. . :. California. the State must adopt and - to be subnutted no later than November WDRESSEs. EPA welcomes càmments implement enhanced IIM programs for 15.1993. . . . - an all aspects of this proposaL Written the followmg uth fl1ZOd areas . . B IIMPi-ogram in Cdlifornio ‘ aornmentsshoulcLbeaddressedto:U.S. Bakersfleld, - .. - -. -. -.-,.“ ..-.-.... . . • - - - -. . . - -1. 0mm COmnuIEU SIP. The.State EnvaronmenwiProtection Agency. ,. - Fresno -. • . - •. -.. - fCalifornia ub TILi . ” - . -. an 9 Air and Toxics Division (A— Los Angeles .. .-‘ ‘ - “ £ Attentiorn Docket No. CA—93- 1M— OV i -. - - . • flim .,u-: .Rivcrside-San Be ; 5 Q 5fl1Pfl will be] ‘th LosAngelei . - and Power : - - - minimum perfonnan standards: Los Angeles. basic and enhancedI/M.pr - e:(415) 744— .well as requirements for pn.and from.”-- - Network - •. ‘ adecp.iatéi adion.A copy of the dxkei Is available for publi Inspection during normal . - and business hours at U’A Region S office at the above address. A reasonable fee may be chaz ged for copying portions of the docket . - . -- . .• ‘ - FOR FURThER INFORMATtON CONTACT David O 1kmnc amief,41r Planning- - Brandi (A-2). U.S. Environmental- Pmt ction Age icy. Region 9.75 -- Hawthorne Street. San Francisâo;- California 94105, (415) 744—1500. - SUPPLEMENTARY INFORMATION: L Requirements for Inspection and - Maintenance Programs A. Applicability of the Enhanced IIM Program in Califqrnia As amended in 1990. the Clean Air Actrequires states to make changes to improve existing IIM programs or to implement new ones for certain nonattainment areas. Section 182(a)(2)(B) of the Act directed EPA to publish updated guidance for state l/M programs, taking into consideration findings of the Administrators audits and investigations of these programs. The Act further requires each area - required to have an I/M prograinto inporpôrate this guidance into the SIP. Based on these requirements. EPA promulgated IIM regulations on November 5. 1992 (57 FR 52950). Lfl . whI& a c ‘ l iieldby lhe T, 3 d 4—. esolutióa dii ect theEkedith o Officer :tosubnilt th Uiifletter EPA as revision to Uio SIP,rThe sub dttA1 - . ‘: 1nduded avomeniUnentby th$ :. control; waivers -jrnO designee, tlui C4RB - gnostiC - - Executive Officer, to the timnel y;:. - inspecthn; znotoristcornpliance’ - • adoptiOn and implementation of l/M • -enforcement; motorist compliance - - programs mOeting all requlrementsj enforcement prograznoversight quality - the I’M regulation and the Act In ll assurance enforoenientagainst-. ... noñWnmentereasTin California when - contractors, stations and inspectoin; uiredA stheduI data collection; data analysis and of doption was i duded in hotter en reporting; inspector training and- bylbe CARB Exealtive Officer to EISA - licensing or certification; public, -. - on January 15.1993 clarifying certain information a dconswner protection; . d taiis of the November 13. 1992,IIM improving repair effectiveness; - committal SIP submittaL In the compliance with recall notices; on-road schedule California committed to • - testing; SIP revisions; and passing legislation authorizing an I’M implementation deadlines. For program by September 10.1993. The • enhanced I’M programs, all - committal SIP lists October 10.1993 as requirements must be implemented by the deadline for the legislation to be January 1,1995 except that areas signed by the governor. switching from an existing test-and- -2. EPA Proposed Approval: On June repair network to atest-only network 28,1993(58 FR 34553) EPA proposed may phase in that change between — to conditionally approve the committal January 1995 and January 1996. • - SIP wider section l10(k)(4) of the Act. Each State required to implement an in the altematfve, however, EPA I’M program was required to submit by -proposed that, if the State failed to November 15, 1992, a SIP revision (here adopt legislative authority or meet and after referred to as the “I/M - certain other applicable interim committal SIP”) including two milestones in the commitment prior to elements: (1) A commitment from the - EPA’s final action on the submittal, EPA Governor or his/her designee to the would disapprove the commiti al SlP- timely adoption and implementation of The basis for such disapproval would be an l/M prog*um meeting all a determination that California could requirements of the I’M regulation and not meet the November 15, 1993 SIP (2) a schedule for adoption of the revision submission date if it failed - program with interim milestones meet the interim milestones Theref including passage of enabling statutory since the State could not meet ith ------- annnhitnient, final approval under -The Act irovides that each state :.. -- -ihan projects org ants for safely aiid - - ‘ sedion 110(k)(4) would not be which all or part of an ozone andlor CO - oertain ’other à(egories of pmject - j appropriate. nonattain nent area nm located -. - n section ‘17g(bXl). The offset sanctjoij 3. State Legislative Action: On required to provide an attainment :. requires that, when States apply the - vembcr iS. 1993 California failed to demonstration showing that its SIP,’as emission offset requirement of section weet its commitment to EPA. By letter revised, Will provide for attainment of 173 to new or modified soura s, the dated Dccomher 30,1993, EPA Region 9 the ozone andlor (X) NAAQS by the ratio of emission reductions to increased notified the State that the proposed SIP apolicable attainment date(s). emissions must be at least 2 to 1. ‘revision submitted on November 15, the.Act further requires that each Section 179(a) of the Act sets forth the 1993. did not contain the critical state in which all or part of a serious, findings 1 which provide EPA with : , - elements required by statute and that severe, or extreme ozone nonattainment discretionunder section 110(m) to : , - the State had failed to submit a area is located shall submit SIP ‘. impose one or both of the sanctions’ complete SIP revision as required by the revisions that will reduce VOC - . - . specified undei section 179(b). -The foul, Ad. For example, the proposeciSiP - emissions by November15, 1996 by at findings am: (1) A state has failed, for revision did not centain legislative - least 15% of the 1990 biseline •g nonattainment area, to submit aSIP or authority for the State to implement the emissions. If the reductions identified in, an element of a SIP, orthat the SIP or proposed SIP revision. In addition, EPA the SIP revisions am less than 15% of•• ‘ SIP element submitted faili ’to meet the’: Region 9 notified the State that the , . the beeline emissions, the State may, dompleteness criteria of section llO(k); proposed SIP re’iision was an obtain a waiver under section ‘ . ‘ . . (2)EPA disapproves a SIP submission.’. ’•’ Incomplete SIP submittal because it was 182(b)(1)(A)(’ii); this requires the State to - for a nonáttaimnent area based on the’ not subject toe publiC hearing. . “ - make several demonstrations,’including . submission’s faIlure to nieet qne orinore r, Further the State faile4 to meet the one that the plan reflecting the lesser , :Y.plan elem ntstiiluired by the Act: (3) :, , Interim deadlines in f commnittal_SW. .. amount indudes all measures that -“- , -eState I - alifq ía was required to obtain - - . --- iurba mid ill’.’— -. .:Jinotaiidwed.. of enhaii èd IIM;howoer.-are , ‘aeditnble towards meeting the of the t.vo ” ’ T am sp • : . .requhniit1nhan edUMIsc_ niusf tegislaturo’adjOunied. hâwever.On-; most owerfu1toolsM ilab äare ibelmp( - is’ SeptenibèrlO. 1993 without baying : tem ’ ns of providing x bditioi S . “ rne e; a d ’ ed adoptaii I/M legislation. Fai um to . ‘ reductions In both VOCand$Ox,both 6 mánths a an Is providesuch authorit J)roventéd -. ‘of which are treated in mgst California imposed irme’aefide ‘iemains ‘--: California from submitting a complete plans as precursors of ozone.; - . una,we ‘2 1n addition. both SIP revision by November 15 1993.’. Finally. a federallja provab ,: On hiiIIpp1y after 18 mónthiif ‘Eai1icr this year. EPA anticipated the ‘enhanced 11M program represents one of. M tor dse lack of good:. possthilit tbat the California legisLiture . the most (X)St -effedIVO air quality faith oil th pait of the State.L.. would fail to adopt necessamy legislation control strategies available. Without an ‘ Although section 179(a) establishei during the’1993 legislative session. On effective ElM program.’attninment of the -: mandatory deadlines for th application April 13.1993; EPA and the U.S ‘ . ozon&andCO air quality standard is’ of saudions at oertainpointsaftoie Depaitmènt ofi aspostatian sent a virtually impossible.’Without - - -: -- ding of defidency. section 110(m) joint letter to Govemor,Wilson advising appropriate enabling legislation, an - provides EPA with the discretion to him that EPA would exeroise its enhanced IIMpro ram cannot be . , section 179(b) sanctions at any discretionary authority under section implemented. . - time (or at ny time after) a section - 110(m) of the Act to impose SanCtionS IL Sanctions Under the Clean Air Act 179(a) flnding.Likewise, although - if the legislature failed o adopt - mandatory sanction s under section ‘179 adequate legislation. On November 24. This sanction action is being ‘ -. ied to the area wili the 1993, EPA issued a press statement proposed under EPA’S discretionary. .defidency, section 110(m) authorizes indicating that EPA would temporarily authority contained in section 110(m) of EPA to apply discretionary sanctions to halt thç process of imposing sanctions the Act. The predicate fmdings and any portion of the state that EPA deems’ to permit discussions betw en the tlrPes of sanctions are described in , reasonable and appropriate (a ensure parties to resolve the issue. - section 179 of the Act. The two , .... ... - -. 4. Importance of Timely - sanctions available to EPA for - 17 )t fct to Agency findingi. Implementation of Appropriate IIM application under section 110(m), as d instioia Than will all be Programs: Beyond being a specific provided in section 179(b)’ath: (1) A - referred to by the one term ‘iiad nge? mandate of the Act, enhanced LIM pmhibi ion on the funding of certain On October 1.1993, ‘A proposed male programs play an important role in’the highway projects; and (2) an increase in so ernins the order In which the sanctIons shalt - apply under sedk,n 179 of the Ad. 58 FR 51270. ability of California areas to comply the emission offset requirement for new, . tint the offset sanctions apply — with the CAA requirements for and modified major stationary sources,’ sanctions apply second. achieving the National Ambient Air The highway funding sanction prohibits - According to the proposed rule, ‘A any diangs Quality Standards (NAAQS) for ozone approval b ’ the Secretary of - thofeaaxogb’andfvidual nouen end comment ruhmiakiu&-This proposed and CO. as weU as the Act’s Transportation of’ any projeds or the. - u ngeppin Iy to mandauxy undions requimments for reasonable further, awarding by the Secretary of any grants. tint ly . cti i ’g ajaai does act govern progress (RFP) reductions for ozone. under Title23 of the U.S. Code, other sanctions imp aeed under sodioc 110(m). ve 19921! ------- hat the requirements of the Act re inet . required tIM programs by the November controls for ee 57 FR 44534 44536—44537. . -; -.‘ -15 1993 date. California has al onow any nbinition of political- - lowever. the Act requires EPA to - failed to adopt and submit such - :-. subdiviiioni creát d b orpursuant to: stablish by rule criteria to ensure that pr 7 ams . - - - ‘- Federal or-Staie law, if i opo1itica ;uch sanctions are not applied on a - ufficient progress has not been subdivision meets ali 5 criteria. EPA ;tatewide basis where one or more made by California toward the• may use its iiscre(ion to determine oliticat subdivisions covered by the implementation of an approvable l/M - - whether it-is reasonable and appropri ipplicable implementation plan are program to be operational on or bef re to apply san tioris ona statewide basis: ,rincipally responsible for the -. ‘ January 1. 1995. EPA hereby announces In this notice. EPA is proposing to use leficiency. .. its intention to impose sanctions on the above proposed criteria to determine On September.28. 1992. EPA . - . May 15. 1994. - - . - - ‘. . . if it may impose the highway sanction proposed criteria under section 110(m) B. Ration !e and Approach J6r Section - statewide for California because of the States failure to submit a complete SIP ihat it would use when proposing - •. o j Sanctions •-‘ - - - - -. itatowide sanctions to determine if one - . revision complying with the IIM - - r more political subdivisions is - - - Section 110(m) of the Act allows EPA committal SIP revision. -. - principally responsible for a SIP -. to apply the highway and offset -‘- - - ‘EPA believes that the first criterion. cleficiency.57 FR 44534. These ’ ---. sanctions at any’time (or at any time.: - - has ‘notb eiimet by any jclitical . -. proposed criteria are discussed later in .. after) it makes a,’findingunder section - - ubdivision Onlythe California .c.; : this notica. .’; . ..: -. - -. i..- 179(a). Based on its finding dated . legislátür has the-authority to revise. r .ithreg to California; EPA is - : December 30.-1993.EPA is proposing to : .the sate atutetoprovidefor,an- i - -: using its discretionary authority under: impose both the highway and offset- ‘ . enhanced] sectionil0(m) to propos eariy: \ , ‘- sandions. EPA believes that the c.f - janctionsa-lased on Califomiasjailure ‘imposition of highway . 5. to adopt le is atf ri io I !because - IWO tiçlyiubmf nhaiic programs as a measure central I allowing the, tate ’s m trápo1 tdmeet CAA dcadlines,,and legislative:dèlay threatens the. ability to meet those 4eadli enhanced lflb( is th single iiu - ,; effective air pollutionvönt.rol measure ‘-available i available. l)elayed legislaiiveipproval .approval ofane “ ;*a iae of -an aaeptable Il! -progm’pla s a 4 ’ furtherburdens i rde ’: nh ncéd AA disproporti nat&burden for clàning the ofait pollution vfth responsllility foi -_ ‘endEPA’re I I air on the State’s major industrial - - cleaning ihe air:-- “ . - - -.- .- - M program :1 sources—additional burdens which Under section 110(m). ‘A may apply.. within the . - especially problematic ‘given -: - - sanctions toiny poition of the state itt , p o uni- .- . California’s current ecãnomit ‘ - . determines is reasonable end — - -- .‘. - Since nq political-subdivision within difficulties. . ‘ - ... . appropriate. During the 24 months - the state has met the first criterion. EPA - - ‘- - following the finding. EPA may not - believes that-no political subdivision is 111. Propose4 Sanctions.. .. . - impose the sanctions statewide if bne or, - piinapally responsible for the failure to - A Finding Under Section i3’g(i) . - - moxe political subdivisions within the Shave an e nheno d UMprogram..’ As stated previously, on December 30. - state is principally responsible for the - Therefore, EPA is not prohibited from 1993. EPA Region 9 issued a letter - deficiency that is the ba is for sanctions. imposing lil ,hway sanctions statewide. notifying the state of its failure to EPA has proposed criteria for - - As noted above, the state legislature submit a complete SEP revision on determining when a political ‘: beaIs the ultimate responsibility to subdivision is principally responsible adopt the requisite legislative authority Novethber is; 1993. as requir d by the (57 FR 44534, September 28, 1992). The and CARB,. not the individual air quality Act. EPA ’s letter constitutes a finding under section 179(a) that triggers EPA’s criteria provide that a political districts, must subsequently adopt - discretionary authority to impose the subdivision is principally responsible if: adequate regulations. Since the state sanctions proposed in this notice under (i) ft has the legal authority to perform ‘bears ultimate respon ibility,EPA section 110(m). Further, on June the required activity; (2) it has - believes that it is reasonable and. 1993, EPA proposed to conditionally traditionally performed. or has been - appropriate to impose sanctions on the approve California’s t /M committal SIP delegated the responsibility to perform. entire State::. - -: - for both basic and enhanced the required activity; (3) it has received, The offset requirements apply only to programs. EPA also proposed, in the - where appropriate, adequate funding, or new or modified major stationary alternative, to disapprove this - authority to obtain funding, from the sources located in or tobe located in commitment if the state failed to adopt state to perform the required activity; (4) areas that are required to have a permit - it has agreed to perform (and has not program pursuant to section 173. Thus, authorizing legislation and to submit the revoked that agreement). oris required the offset sanctions are limited tg thg a 3 EPA cd by state law to accept responsibility for areas which ate raquir d to have a -. finding that the slate’s proposed SIP revision was - performing. the required activity; end - permit program. Le., the ozone and CX) a failure to submit a SIP revision as required by the -(5) it has failed to perform’the required’ nonattainment areas. Porozone, those Act and. In addition, was an Incomplete SIP - activity. A “political subdivision” is - areas are: Monterey Sai]ta Barbara, San submittal. Mandatory sanctions were tnggered undcr Section ‘179(a) by issuance of the letter - defined as the representative body that Diego. San Francisco Bay Area, So - nct fying the stale of the finding of deficiency, is responsible for adopting and/or Coast, Ventura, Sacramento, San ------- ‘oaquin Valley. and the South East however, if the disapproval is the final President’s p onti : the principles, )esert. The offset sanction would apply basis for imposing the sanctions, such - set forth in the Executive Order. .o all new or modified major stationary sanctions would not be completely ‘ - Pursuant to (he terms of Executive - -ources for VOCs and NOx that are lifted until EPA formally approves an Order 12866. it has been determined Lating o or located in each of these enhanced IIM program for tbe State of - that this rule is a ‘significant regulator , rreas and for such sources of CO that are California. In such a case, EPA would action”. Nevertheless after reviewing located in or locating to the following take action to lift the sanctions at the information regarding this action, 0MB X) nonattainment areas: Chico, same time as EPA took final action has waived review. Sacramento. San Diego. San Francisco. approving the State’s IIM program. Re !atozyFlcxibilily Act San Joaquin. and South Coast. EPA EPA’s action imposing or (oiling the proposes to impose the offset sanctions . section 110(m) sal ctions will in no Under the Re uLatory Flexibility Act, in the manner described in the proposed manner affect EPA’s obligation to-: - 5 U . S.C. 600 el seq., EPA must prepare action on the sequencing of sanctions - impose mandatory sanctions under- - a regulatory flexibility analysis (58 FR 51270,51275—51277 (October 1. section 179(a) where one mandatory. - assessing the impact of any proposed or - 1993)). . : - . sanction shall apply 18 months after - fInal nile on small entities..’ . - . - EPA s finding of incompleteness and (ho Alternatively. EPA may certify that the C L Removal of Dir relionoiy Sanc4ons . ‘ second mandatory sanction shall apply . rule will not have a significant impact EPA s proposing to temporarily lift’ . - 6 months later: Sanctions under section . on a substantial number of malI - Le., 4 the highway and offset .f : . . 179(a) apply to the area for which the entities. SmalFentities include small sanCtions impased.under section 110(m) deficiency exists. If the State does nct . - - businesses .small not-for n-ofit - upon passage by the CalifornIa z : ado t and submit to EPA a cómple(e .. :enterpnses. and government entities - with jurisdiction .ovei populations of. - submittal providing for an llMpmgrazn’ . -. EPA- ’; -withinthe18-monthjnJadditionaI6 -, 1ictthe . periods. thesanctions wil! - because f. x - • th to have init - related tomess ( aüsi iEPA . tolJ “ th keiended. thefl (Octotier 1 Iin’the i EPA4akesfinalact oud i sppi ving ,. bpi e cii whether.ar not aIRaghter ’ .Tbei ‘i’sUMamimittalS lP,aseoor 110(m) senctiãns would clock will be tziggër d arid co pletelj1 ih d (intil’thi must hat only submit an -IIM a corn Ioto submiüal of Its enh n ed U ‘pro grám , but EPA must alsO jiprov ” propos -Ihe 2 to I emissions offset . Mprcgram fai theSpfuda.:’. thht program within the èiei,ant (line: . u iernent4vilIap ly tômajornew’.. sources,pd unbjàrmbdificaiionito the EPA will tñke iionftidiii iIetely Hft ,frames to stop the aictions. existing sowvesofvolatilejolganic edion 110(m) csnt iiois at the time It - dock and avoid saüctiãns on the fine mponi (VOC). bxid s dfniuogen determines theStato ’ssubmi(ta ltobe . compleieoritinde med complet e .A’ ‘. .. . . (NOxJ.andcarbonjnonoxide(OO)in the ‘-complete submittal is one that contains v. R ulatory itequirenituts. • . . California ozdno and caibon monoxide. .. areas sub jec&tosedion 173(c) offset aUihoaiticalelementhlistedintheU - 4 ExecutiveOrderll866 ‘ ,. - requirement.: -. -M regulation es determined through the - Under Executive Order 12866, (58 FR’ :‘ Major stationary sources of VOC. completeness ailozia in section - •51735 (Oc ber.4. 1993)) the Agency, NOX. and CO me generally Aol small - iiO(k)(i). ‘ ‘ must determine whether the regulatory entities, Also, thea to I emission offset - As an alternative, if EPA takes fluial action is “significant” and, therefore. - requirement does not prevex t growth action disapproving California’s . - subject to Office of Management and and modification but sets a higher offset committal SIP prior to taking final - Budget (0MB) review and the - s(andard than the current offset action imposing sanctions, EPA requirements of the Executive Order. required. It Is not expected that a large proposes that such disapproval be the The Order defines “significant - - number olsinall entities will be affected basis For imposing the discretionary regulatory action” as one that is likely by the emissioneffset requirement. In sanctions. In such case, the sanCtiOnS to result in a rule that inay- - the past, when EPA has made efforts to would be tolled in the same manner• (i) Have an annual effect on the quantify the impact of the Act’s mles on. economy of $100 million or more or the amstruction and modification of - a general rule. Agency g° adversely affect in a material way the sources, EPA has been unable td do so rulcznaking to temowe or sites a requirement Impo od thzua8h While U.S. EPA economy, a sector of the economy, due, in part, to the. need to obtain - Intends to issue a neuce tolling the iio(ml sanction productivity, competition. jabs, the information on future plans for business UPOn the o srreues of the events d 5cnbcd. U.S environment, public health or safety, or growth. This information is difficult to EPA will use tho good ceuse oxceptiin tothe otherwise eppliceble requirement State, local, or tribal governments or obtain, as budn ess are understandably nuleniaking. EPA halirve there is good cense to wit communities; reluctant to make their plans public. the sanctions ones the state taken die action which (2) Create a serious Inconsistency or EPA is proposing to impose Federal cw s the defficiency that resulted in the imposition otherwise interfere with an action taken highway funding assistance limitations of sanctions. Sce 5 U.S.C-S 553( 1 ,1 (8 ). Therefore, DO or planned by another agency; statewide. This limitatiOn could aff t a — pooposod action (orresnoval will be issued. Consistent with u.s. EPA’s Intent to ose (3) Materially alter the budgetary number of government entities with diseredonary sanctions only on those areas that lack impact of entitlements; grants, user fees,. popu ations of less than 50,000 since - legislative authority, EPA believes that it is In the or loan programs or the right and government entities often apply for and public Interest to remove, at least temporerily. these obligations of reapients thereof; or receive federal funding under Title 23. - dlsa-etionaiy sanctions esexpeditiously as possible (4) Raise novel legal or policy issues United States Code, for road ones the State of California has enacted legislative authority, arising out of legal mandates, the impfovement projects. Although a great ------- federal Registe- 1 Vol. i. A u. many prolects z re exempted under ect 19(b)(1l(B). a numi erof prcpects are expected to be affected if EPA lakes final action. For the reasonS stated abo . e. EPA cannot further analyze the econc iic impacts o 1 this action on small ei tjt1es. The stacemenis in this package COflSi!IU(C EPA s full regulatory flexibility analysis. C. Reporting and Reconl keeping Requirements This rule does not contain any information collection requirements which require 0MB approval under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Should the highway sanctions become effective, the Secretary of the U.S. Department of Thnsportation (USD01’) is required to determine which projects or grants should not be affected by the sanction end which, therefore, are exempt. This detanuinalion will be based on Information readily available in existing documentation gathered for the purpose of evaluating the environmental, social. and economic impacts of different alternatives for transportation projects. These analyses are already required for the preparation of environmental assessments and impact statements under the National Environmental Policy Act (NEPAl. Historically. exemption determinations by USD01’ for sanctions have been based on such 4EPA documentation and have not necessitated additional infonna Lion gathering and analysis by the Stales. In addition. since under NEPA final environmental documents must be approved by USD01’. in most cases the NEPA documentation will already be in USDOT’s possession. Therefore. EPA does not believe that the high y sanction, when applied. will impose an additional information collection burden on the states. When the offset sanction applies. sources subject to it will not incur an addjtional information collection burden because sources are already required under the section 173 offset requirements to obtain an emission offset from between I to 1 and 1.5 to I (depending on the classification of the nnnattainment area in which they are located). Should the offset sanction apply, it would not impose an additional information collection burden because sources will not have to provide additional information in the application beyond that which they would already have to provide in [ lie absence of the sanction. (For the information collection burden of new requirements of the amended Act for nonattainment new source review (NSR) and prevention of significant deterioration, an information collection reqt.est is being prepared to support rulemaking changes to parts 51 and 52.) List of Subjects in 40 CFR Part 52 Environmental orotecton. Air pollution cont.rol,Carbon monoxide. Hydrocarbons, Intergovernmental relations, Nitrogen oxide. Ozone. Volatile organic compounds. Dated: January?, 1994. Canit P,t Rro r, Adznini t,utor. 40 CFR part 52 is proposed to be amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS I. The authority citation for past 52 continues to read as follows: Aidhorfty 42 U.S.C 7401-7671q. Subpart A .—(Aznended] •2. Subpart A Is proposed to be amended by adding a new § 52.32 to read as follows: §52.32 .crstionary sanceoo under sectIon 110(m) of the Clean Air Act. (a) Purpose. The purpose of this section is to Implement 42 U.S.C. 7410 (m), with respect to the application of discretionary sanctions following a finding that has been made pursuant to 42 U.S.C.. 7500 (a) (1), (2). (3), and (4). (b) Definitions. All terms used in this section. but not specifically defined in this section shall have the rn ning given them in § 52.01. (1) i Amendments means the 1990 Amendments to the Clean Air Act (Pub. Law 101-549.104 StaL 2399). (2) Act means Clean Air Act, as amended in 1990 (42 U.S.C. 7401 ct seq.3. (3) Criteria pollutant means pollutant for which the Administrator has promulgated a national ambient air quality standard pursuant to 42 U.S.C. 7409 (e.g.. ozone, lead, sulfur dioxide, particulate matter, whoa monoxide. nitrogen dioxide). (4) Findings or Finding refer(s) to one or more of the findings, disapprovais. and determinations described in 42 U.S.C. 7509 (a) (i). (2). (3), and (4). (s) Part D means part 0 of title I of the Act. (6) Pert D SIP or SIP revision or Plan means a slate implementation plan or plan revision that states are required to submit or revise pursuant to part D. (C) Avaikibie sanctions and method for implementaLion. (I) Q(fsel sanction. (i) As further set forth in paragraphs (c) i(ii) through (iii) of this section. Ic; the following areas, on the loliowing dates, the State shall apply the emissions offset requirements. in accordance with 42 U.S.C. 7503 and 7509(b)(21, at a ratio of at lezst 2-to-I for emission reductions to increased emissions of the following pollutants and their precursors for which the findings under 42 U.S.C. 7409 are made: Date If ed en A ed as sanG- tian ap- e 5 Pollutant(s) at- fected State of CaiIon 0 o o_- ..--_. CO Monterey . . ___ VOC, NO’ Sacramento — VOC, NO’. Ct) San Dle o — VOC. NO’, 00 San Fmnnsoo VOC. NO., 00 Bay Are& San Joaq n VOC, NO., CO Valley. Santa Barbara VOC, NO., CO SOLth Coa - Soffi East VOC, NO.. CO VOC, NO. Ome Vetlisa — VOC. NO. (ii) For purposes of applying the emissions offset requirement sot forth in 42 U.S.C. 7503. at the 2-to-i ratio required under paragraph (c)(1) of this sedion, the State shill comply with the provisiona of a State.odopted new source review program that the EPA bar approved under 42 U.S.C. 74l0(k)(3) meeting the nonattainnient area new sour review requirements of 42 USC 7501—751.5. as amended by the 1990 Amendments, or, (foe audi plan has been approved, the State shall comply directly with the nenattainment area new source review requirements specified in 42 U.S.C. 7501—7515. as. amended by the 1990 Aniondineats, or cease issuing permits to sfruot and operate major new or modified sour . For purposes of applying the offset requirement under 42 U.S.C. 7503 where the EPA has not folly approved a State s new source review program as meeting the requirements of part 0, the specifications of those provisions shall supersede any state requirement that is less stringent or inconsistent. (iii) For-purposes of applying the emission o et requirement set forth in 42 U.S.C. 7503. any permit required pursuant to 42 U.S.C. 7503 issued on or after the date the offset sanction applies shall be subject to the enhanced 2 to 1 ratio under paragraph (cgi) of this section. (2) Highway funding sanctiofr. For the following areas, on the following dates, the highway sanction shall apply as provided in 42.U..SC 7509(b)(1) ------- 3340 I eucrul • A I - - Dale Attecled area sanction apotiOS kteoCa1dO m a IFRD0C g 4 l128FiICd 1—21—94. iocoarnl 000€ ‘ tflt 40CFRP3v 152 (IL.83.-1-615 5 FRL-4826-31 Federal Highway Funding Assistance Limitations and Emissions Offset Require(nentZ Illinois AGE? CY United States Environmental Protection Agency. ACflON: Notice of proposed rulemaking SuMMARY: The u.s. Environmental Protection Agency (USEPA) is proposing this action to impose sand ons on Illinois under the discrelionari authority provided to the Agency under the Clean Air Act, as amer.ded in 1990. (CAA or Act) for failure by the state to meet its commitment to adopt a basic and enhanced motor vehide inspection and maintenance (IIM) program as required by the Act For certain ozone nonattainment areas. On November 11. 1992. the Illinois Environmental Protection Agency (IEPA). acting as the govemor S designee, submitted a commitment to adopt (Committal SIP) an l/M program to meet the requirements of the Act and the l/M rule by November 15. 1993. The committal SIP provides for the adoption and implementation of a basic and enhanced I/M program meeting all requirements of US EPAs tIM regulations and includes an implementation schedule. On December 2. 1993. US EPA proposed to disapprove this SIP revision based on the failure by the State to meet milestones contained in the committal sIP s implementation schedule pertaining to the enactment of necessary legislative authority. A lull SIP revision including State legislative authority to implement the program was required by November 15. 1993. Tht Illinois General Assembly aø 1 ourned on November 4, 1993. for the second time this year without taking necessary action to provide for implementation of the basic and enhanced IIM programs. On December 30. 1993. EPA Region 5 issued a letter finding that the State had failed to submit the SIP rev zion required under sections 110 and 182 of the Act. Due to the failure of the State to submit a complete SIP revision fulfilling either the requirements of the Act and its commitment to adopt and implement the required IJM programs as promised in its committal SIP. USEPA proposes to exercise its discetionary authority under the Act to apply a statewide highway funding limitation sanction and a 2 [ or I growth offset sanction in all areas required to have a permit program under the new source review provision of the Act DATES: Commefll.S on this proposed action are to be submitted by March 15. 1994. The USEPA will hold two public hearings on March 2 and 4. 1994. ADDRESSES: Comments on this proposed rule should be addressed to J. Elmer Bortzer. Chief. Regulation Development Section. Re d!z.LiOn Dcvelcpmeflt Branch (5AR—1SJl. United States Environmer.tal Protection Agency. Region 5. 77 West Jackson Boulevard. Chicago. Illinois 60604. The hear ngs will be held in illinois as follows: March 2. 1994 in Chicago. at the Harold Washington Library on 400 S. State Street in the multipurpOse room at 10 a.m. to 4 p.m.: and March 4,1994 in Collinsville. at the Holiday Inn on 1000 Eastpoit Plaza Drive at 10a.m. to 4 p.m. Copies of Illinois tIM Committal SIP submittal. USEPA’s proposals and rulemakings. and other documents pertinent to this proposed rule are available at the following address: U.S. Environmental Protection Agency. Region 5, Air and Radiation Division. Regulation Development Branch. 77 West Jackson Boulevard. Chicago. Illinois 60604. FOR PJRThER INFORMATION CONTACT: Francisco j: Acevedo. Environmental Engineer. Regulation Development Section. Regulation Development Branch (SAR—18J). United States Environmental Protection Agency. Region 5.77 West Jackson Boulevard. Chicago. IlLinois 60604. (312) 886—6061 Anyone wishing to come to Region 5 offices should first contact Francisco J. AcevedO. SIJPPt.EMEP4TARY INFORMATIOtI: I. t/M Program requirements Pursuant to the 1977 amendmentS to the Act, vehicle IIM programS were mandated for certain areas with long standing air quality problems. The 1990 amendments to the Act expanded the role of IJM programs as an attainment strategy and required USEPA to develop different performance standards for ‘basic ” and “enhanced” I/M programs. The performance standard is the minimum amount of emission reductions a program must achieve. based on a model or benchmark program design. In addition, the amended Act directed USEPA to address requirements for specific des.gri elements and program implementation issues for both basic and enhanced I/M prcgramS. The amended Act requires states containing nonattailiment areas to make changes to improve existing l/M programs or implement new ones. Section 182(a)(2)(B) of the Act direcied USEPA to publish updated guidance fur state lJM programs. taking into consideration findings of the Administrators audits and investigations of these programs. The Act further requires each area required by the F ct to have an l/M program to incorporate this guidanr.e into the SIP. Based on these ruquirernentS. US FA promulgated an lIM reg.ulalian on November 5, 1992. (57 FR 52950) Under section 182(c)(3) of tIme Act. areas designated as serious or worse ozone nonattainment areas with 1980 populations of 200.000 or more, in addition to metropolitan statistical areas with populations of 100.000 or more in the northeast ozone transport region. are required to meet USEPA requirements for “enhanced ’S I/M programs. These areas were required to submit a SIP revision to incorporate an tIM program by November 15. 1992. In Illinois. the State must implement I/M programs in the urbanized areas of the Chicago and East St. Louis ozone nonattainment areas. The I/M regulation establishes minimum performance standards for basic and enhanced I/M programs as well as requirements For the following: Network type and program evaluation: adequate tools and resources: test frequency and convenience; vehicle coverage: test procedures and standards; test equipment: quality control; waivers and compliance via diagnostic inspection; motorist compilance enforcement: motorist compliance enforcement program oversight; quality assurance; enforcement against contractors, stations and inspectors: data collection; data analysis and reporting; inspector t.raining and licensing orcertificatiofl public information and consumer protection; improving repair effectiveness; compliance with recall notices; on-road testing: SIP revisions; and implementation deadlines. For enhanced I/M programS. all requirements must be implemented by January 1. 1995 except that areas switching from an existing test-and- repair network to a test-only 0 t work may phase in that change between - January 1995 and January 1996. Each state required to implement an IIM program was required to submit by November 15. 1992. a SIP revision (here and after referred to as the “I!M ------- 3540 Federal Register / Vol. 59. No. 15!_Monday, January 24, 1994 F Proposed Rules Date Affected area sancton applies — IFR Doc. 94—1328 Filed 1—21—94; 10:00 amj coos _ ---- r 40 CFR Part 52 (1L83—1-6155; FRL-4826-33 Federal Highway Funding Assistance Limitations and Emissions Offset Requirements; Illinois AGENCY: United States Environmental Protection Agency. ACI1ON: Notice of proposed rulemaking . SUMMARY: The U.S. Environmental .Pz tection Agency (USEPA) is - proposing this action to impose sanctions on illinois under the discretionary authority provided to the Agency under the Clean Air Act, as amended in 1990, (CA.A or Act) for failure by the state to meet its commitment to adopt a basic and enhanced motor vehicle inspection and maintenance (IIM) program as required by the Act For certain ozone - nonattainment areas. On November 11, 1992, the Illinois Environmental Protection Agency (IEPA), acting as the governor’s designee, submitted a commitment to adopt (Committal SIP) an J/M program to meet the requirements of the Act and the J/M rule by November 15. 1993. The committal SIP provides for the adoption and implementation of a basic and enhanced I/M program meeting all requirements of - US EPA’s tIM regulations and includes an implementation schedule. On December 2. 1993. US EPA proposed to disapprove this SIP revision based on the failure by the State to meet milestones contained in the committal SEP’s implementation schedule pertaining to the enactment of necessary legislative authority. A full SIP revision including State legislative authority to implement the program was required by November 15, 1993. The’ Illinois General Assembly adjourned on November 4, 1993, for the second time this year without taking necessary action to provide for implementation of the basic and enhanced I/M programs. On December 30. 1993. EPA Region 5 issued a le”er finding that the State had failed to s mit the SIP rev .on requireth Aersectionsll arid 182 of the Act. D e to the failure i the S:ate to submit a complete SIP revision fulfilling either the requirements of the Act and its commitment to adopt and implement the required IIM programs as promised in its committal SIP, USEPA proposes to exercise its discretionary authority under the Act to apply a statewide highway funding limitation sanction and a 2 for 1 growth offset sanction in all areas required to have a permit program under the new source review provision of the Act. DATES: Comments on this proposed action are lobe submitted by March 15. 1994. The USEPA will hold two public hearings on March 2 and 4.1994. - ADDRESSES: Comments on this proposed rule should be addressed to: J. Elmer Bortzer, Chief. Regulation Development Section, Regulation Development Branch (5AR—18fl, United States Environmental Protection Agency, Region 5.77 West Jackson Boulevard. Chicago. fllinois 60604. The hearings will be held In Illinois as follows: March 2,1994 in Chicago. at the Harold Washington Library on 400 S. State Street in the multipurpose room at 10a.m. to 4 p.m.; and March 4.1994 in Collinsville, at the Holiday Inn on 1000 Eastport Plaza Drive at 10 am. to 4p.m. Copies of Illinois’ IIM Committal SIP submittal. USEPA’s proposals and rulemakings, and other documents pertinent to this proposed rule are available at the following address: U.S. Environmental Protection Agency. Region 5. Air and Radiation Division. Regulation Development Branch. 77 West Jackson Boulevard, Chicago. Illinois 60604. FOR FURTHER INFORMATION CONTACT: Francisco J. Acevedo, Environmental Engineer. Regulation Development Section. Regulation Development Branch (5AR—18J), United States Environmental Protection Agency. Region 5. 77 West Jackson Boulevard. Chicago. Illinois 60604, (312) 886—6061. Anyone wishing to come to Region S offices should first contact Francisco J. Acevedo. - SUPPLEMENTARY INFORMATiON: I. JIM Program requirements Pursuant to the 1977 amendments to the Act, vehicle JIM programs were mandated for certain areas with long standing air quality problems. The 1990 amendments to the Act expanded the role of I/M programs as an attainment strategy and required USEPA to develop different performance standards for “basic” and “enhanced” I/Mprog ns. The performance standard is the mInimum amount of emission reductions a program must achieve. based on a model or benchmark program design. In addition, the amended Act directed USEPA to address requirements for specific design elements and program implementation issues for both basic and enhanced J/M programs. The amended Act requires states containing nonattainment areas to make changes to improve existing JIM programs or implement new ones. Section 182(a)(2)(B) of the Act directed USEPA to publish updated guidance for state JIM prog ms. taking into . - - consideration findings of the Administrator’s audits and - investigations of these programs. The Act further requires each area required bytheActtohavean l lMprogramto - incorporate this guidance into the SIP. Based on these requirements, USEPA promulgated an JIM regulation on November 5. 1992. (57 FR 52950) - Under section 182(c)(3) of the Act, areas designated as serious or worse - ozone nonattainment areas with 1980 - populations of 200.000 or more; in addition to metropolitan statistical areas with populations of 100,000 or more in the northeast ozone transport region. are required to meet USEPA requirements for “enhanced” J/M programs. These areas w re required to submit a SIP revision to incorporate an I/M program by November 15. 1992. In illinois. the State must implement IFM programs in the urbanized areas of tho Chicago and East St. Louis ozone nonattainment areas. The JIM regulation establishes minimum performance standards for - basic and enhanced J/M programs as well as requirements for the following: Network type and program evaluation; adequate tools and resources; test frequency and convenience; vehicle coverage; test procedures and standards; test equipment; quality control; waivers and compliance via diagnostic inspection; motorist compliance enforcement: motorist compliance enforcement program oversight; quality assurance; enforcement against contractors, stations and inspectors; data collection: data analysis and reporting; inspector training and licensing or certification; public information and consumer protection; improving repair effectiveness; compliance with recall notices; on-road testing; SIP revisions: and implementation deadlines. For enhanced JIM programs, oh requirements must be implemented by January 1, 1995 except that areas switching from an existing test-and- repair network to a test-c ly network may phase in that change beiween January 1995 and January 1996. Each SIP’ - - equired to implement an IIM progr .‘as required to submit by Novembei * 1992. a SIP revision (here and after referred to as the ‘tIM ------- Federal Register! Vol. 59, No. 15 / Monday, Januery 24, 1994 !PI’oposed Rules committal SIP’) including two - elements: (a) A commitment from the Governor or his/her designee In the timely adoption and implementatton of an IIM program meeting all the requiremer.ts’of the MM regulation; and (2) a schedule for adoption of the program, with interim milestones induding passage of enabling statutory or other legal authority aod adoption of final regulations. Aoc# pLance of A/M committal SIPs in lieu of lull SIPs was Justified by The fad that states could stot have been expected to begin development of an MM program meeting the requuementsof the Ad and (hell M regulation until the MM regulation s adopted as a final n ile, which did act eccer until November 5.1992. A complete SIP gevimoa which contained eli of the elements identified In the adoption schedule, including the .. aithoziziag legislation and implementing regulatloon. was to be subuti*led no later than November15, 1993. - On November11, 1992, the State of Illinois submitted a committal SIP to LASEPA. A public bearing on this - submittal was held by the State on October27, 1992. in Springfield. Illinois. The submittal included a schedule of Implementation and a commitineatto the timelyadoption and Implementation of an MM program in the Oucagoand East & Louis ozone nonattainnient areas meeting all the requuemeets of the A/M regulation and the amended Ad by November 15,, 1993. On July 13. 1993. the i llinois General Assembly adiourned without taking the necessary action to enable lihincis to adopt and implement the tIM provisions mandated by the amended Act and the final MM rule in Chicago and East St. Louis ozone aonattainznent areas. Failure to provide such authority prevented the State from submitting a complete SIP revision containing all the required elements of the program by November 15. 1993. On September 28, 1993. USEPA sent a letter to Illinois Governor Edgar advimag him that USEP.A had decided to exercise its discretionary authority under section 110(m) of the Act to impose sanctions at any time once a finding of SIP deftö eizcy is made if necessary - legislation was not adopted during the October 1.993 veto session of the Illinois General Assembly. The Illinois General Assembly reconvened on October12, 1993. forth. Call veto s on. During this session which adjoumed November 4. 1993 .tbe legislature failed for the second lime to enact the legislation needed to implement the requlred MM program meeting the requirements of the Act In theStateoflllinois. After review of the committal SIP. USEPA proposed to disapprove the commitment on December 2, 1993 (58 FR 6354?). based on the failure by the Stale to meet interim and final milestones in the schedule contained in the SAP submittal pertaining to the enactment of necessary authority to implement tiM requirements during the 1993 illinois General Legislative session. On November15,, 1993. the State of Illinois failed to meet its commitment to USEI’A by failing to submit a full SIP revision for tiM program implementetion. Beyond being a specific mandate of the Act. A/M programs play en hnpoitant role in the ability of the Chicago end East St. Louis ozone nonattainment areas to comply ‘with the requirements of the Act for echieving the National Ambient Air Quality Standards’ - (NAAQS) forozone, asweflestheAct requirements for reasonable further progress (RW) reductions for ozone. The Act provides that each state in which all or pelt of certain classifications for ozone rienaltainment areas are located Is required to provide an attainment demonstration showing that its SIP, as -revised, will provide for attainment of the -ozone NAAQS by the applicable attainment date(s). The Ad further requires that each state in which all or part of a serious, severe, or extreme ozone nonattainnient area is located shall submit SIP revisions that will reduce VOCemissionsby November15. 1996 by at least 15% ci the 1990 baseline emissions, if the reductions Identified in the SIP revisions are less than 15% olbaselme emissions, the Slate may obtain a waiver under section 182(b)(ll(AXiThthls. requires the State to make several demonstrations, Including one that the plan reflecting the lesser-amount includes .11 measures that can feasibly be Implemented in the area in light of technological echievability. The Chicago and East St. Louis ezone nonatteinmont areas in Illinois will have difficulty meeting the applicable RFP - requirements because audit for curtain pre-1990 C&A programs, such as the federal motor vehicle control ylug dm and basic t/M is not allowed. The - additional benefits insulting freer implementing an MM program that - meets the requirements of the final November 5.1992. MM regulation. however, are fully a’editable towards meeting the BFP requirement. An MM program is one of the most powerful tools availableto areasintennsof. providing expeditious reductions In both VOC and NOx, both of which are precursors of ozone. . . - Finally,, a federally epprovaiJe basic and enhanced i/U ossannmsup ta - one of the most cost.effective air quaIi1y control strategies available. Witho effective I/U program. attaimnenti ozone air quality standard isvirtu impossible, and without nppropdate enabling legislation, an I/U program meeting final US ’A IIM regulations cannot be implemented. - - IL Sanctions Under the C1 n Air Ad Thisemotion action isbaing - proposed under USEPA’s dimtionary authority contained in section 110(m) of the Act. The predi e findings and’ types of sanctions are in section 119. The two emdians available to USEPA for application undersection 110(m), as provided Ins i ium 179(b),arer. (1) A’ prohibition on-the funding of ontain - .higbway projects and (2) an inaunse In the emission offset ma n1 for new and modified uiaor stationary noweas. The highway funding sanction prohibits the approval by the Seeretary of - - Transportation of any project. or awarding by the Semelary of any grants, under Title 23 of the US. Code, other than projects or grants for safety and certain other categoilesof projects listed in section U9(bXt).Th offset sanction requires that, when states apply the emission offset requirement of section 173 to new or modified sources, the ratio of emission reductions to 1n emissions must be at least 2 to I. Section 179(e) of the Ad eats findings I which provide USEPAwIIh discretion under sectIon 110(m) to Impose one or both 0 f the sanctions specified under section 179 (b). The four findings are: (1) A state has felled, for a nonattainment area, to submit a SiP or an element of the S W. or that the SIP or SIP element submitted fails to meet the completeness criteria of section 110(k); (2) USEPA disapproves a SAP submission fore nonattainment area based on the submission’s failure to meet one or more plan elements required by the Ad; (3) a state lies not made any other submission required by the Act or has made a submission that does not meet the completeness aitoria or has made a required submici iom that Is disapproved by USEPA for not meetingthe Ad’srequlrementsor (4)a requirement of an approved plan is not being implemented. Under section 179(a), unless the state corrects the deficiency, one of the two sanctions listed in seøion 179th) must be imposed 18 months -after a finding Is made, and the second must be Imposed 6 months after the first sanction is Imposed. If the deficiency zemains ‘Sediaa 17e(sjra(ustaAgeacy ‘ 14 ’tg ditap ossls, d , , .I.—...--— ibeeenili.vae refined to by the ------- 3542 Federal Register I Vol. 59. No. 15 / Monday, January -24, -1994 / Proposed Rules uncorrected.2 In addition, USEPA may apply both sanctions after 18 months if the Administrator finds a lack of good Iaith on the part of the state. Although section 179(a) establishes mandatory deadlines for the application of sanctions at certain points after a finding of deficiency, section 110(m) provides USEPA with the discretion to impose section 179(b) sanctions at any time (or at any time after) a section 179(a) finding. Likewise, although mandatory sanctions under section 179 are limited to the area with the deficiency. section 110(m) authorizes USEPA to apply discretionary sanctions to any portion of the state that USEPA deems reasonable and appropriate to ensure that the requirements of the Act are met. See 57 FR 44534, 44536—44537. However, the Act requires USEPA to stablish by rule criteria to ensure that uch sanctions are not applied on a tatewide basis where one or more rolitical subdivisions covered by the. ipplicable implementation plan are )rincipally responsible for the feficiency. On September 28, 1992, USEPA ,reposed criteria under section 110(m) hat it would use when proposing itatewide sanctions to determine if one r more political subdivisions Is rincipally responsible for a SIP leficiency. 57 FR 44534. These proposed criteria are discussed later in his notice. With regard to Illinois, LJSEPA is using its discretionary iuthority under section 110(m) to propose early sanctions based on Illinois’ failure to submit a complete 1/ vi program. USEPA Is taking this action For two reasons: (1) Congress required timely submittal of I/M programs as a neasure central to allowing the State’s metropolitan areas to meet CA/i deadlines and any legislative delay threatens the State’s ability to meet those deadlines, and (2) enhanced I/M is the single most effective air pollution control measure available. Delayed legislative approval of an acceptable LI M program places a disproportionate On October 1, 1993. U.S. EPA proposed a rule governing the order in which the sanctions abel! apply under sectIon 179 of the Act. 59 FR 51270. The rule proposes that the offset sanction apply first and the highway funding sanction apply .eaind. According to the proposed rule, U.S. EPA may change this sequence of sanctions through individual notice.and.ccrnment rulemaking. This proposed sequencing applies only to rn’idatoiy n t&ons that apply under section r .) and does net go .ern sancttons imposed unde: tion 1lO(in l. ‘U.S. EPA issued a letter on D. “ er 30.1993, fizxIingthatth.state’s dtoe eSIP rovisionasruq .imdbycteAct - •ry sanctions under aectioO 179( 5 )’ triggered by Issuance of the lettir notifying the stale of the finding of the deficiency. burden for cleaning the air. on the States major industrial sources. . - UI. Proposed Sanctions A. Finding Under Section 179(a) As stated previously, on December 30, 1993, USEPA Region 5 issued a letter notifying the State of its failure to submit a complete SIP revision on - November 15, 1993, as Pequired by the Act. USEPA’s letter constitutes a finding under section 179(a) that triggers EPA’s discretionary authority to impôse the sanctions proposed in this notice under section 110(m). Further, on December 2, 1993, USEPA proposed to disapprove the l/M committal SIP containing Illinois’ commitment to adopt and submit both basic and enhanced I/M programs meeting the requirements of the Act and USEPA’s I/M regulation by November 15, 1993. Illinois has now failed to adopt and submit such programs. . . If sufficient progress has not been made by Illinois toward the implementation of an approvable I/M program to be operational on or before January 1, 1995, EPA hereby announces its intention to impose sanctions on May 15,1994. - B. Rationale and Approach for Section 110(m) Sanctions Section 110(m) of the Act allows IJSEPA to apply the Federal highway funding assistance limitations and the 2:1 emission offset sanction at any time (or at any time after) it makes a finding under section 179(a). Based on its finding dated December 30, 1993, USEPA is proposing to impose both the Federal highway funding assistance limitations and 2:1 emission offset sanctions. USEPA believes that the imposition of both sanctions is appropriate because of Illinois’ failure to submit a complete SIP revision to enhance its existing s ehicle l/M program. In the absence of improved vehicle IIM, the ability of the State’s metropolitan areas to meet the CA / i deadlines for attaining healthy air quality is severely compromised. As previously noted, I/M programs are the single most effective air pollution control measures available and delayed legislative approval of an acceptable program further burdens major industrial sources of air pollution with responsibility for cleaning the air. Under sectIon 110(m), USEPA may apply sanctions to arty portion of the state it determines Is reasonable and appropriate. During the 24 months followini, the finding. USEPA may not impose the sanctions statewide if oi.e or more political subdivisions within the state is principally responsible for the deficiency that is the basis for sanctions. USEPA has proposed criteria for determining when a political - subdivision is principally responsible (57 FR 44534, September 28, 1992). The criteria provide that a political subdivision is principally responsible if: (1) It has the legal authority to perform the required activity; (2) it has , - traditionally performed. or has been delegated the responsibility to perform, the required activity; (3) it has received, where appropriate, adequate funding. or authority to obtain funding, from the state to perform the required activity: (4) it has agreed to perform (and has not revoked the agreement), or is required by state law to a pt responsibility for performing, the required actIvity; and (5) it has failed to perform the required activity. A “political subdivision” is defined as the representative body that is responsible for adopting and/or implementing air pollution controls for any combination of political subdivisions created by. or pursuant-to. Federal or State law. If no political subdivision meets all 5 criteria, USEPA may use its discretion to determine whether it is reasonable and appropriate to apply sanctions on a statewide basis. In this notice, USEPA is proposing to use the above proposed criteria to determine if it may impose sandiens statewide for Illinois because of the failure to comply with the l/M committal SIP revision adopting an l/M program. USEPA believes that the first criterion has not been met by any political subdivision. Only the Illinois General Assembly, composed of representatives from all portions of the State of Illinois, has the authority to revise the state statute to provide for a basic and enhanced I M program meeting the C / iA and USEPA requirements. Once the legislature has acted, only state government agencies can adopt any implementing regulations. While individual air pollution control districts or air quality management districts may request implementation of the state l/M program within their districts once that program is adopted, this authority is meaningless unless the State has first established an appropriate program through legislation and regulations. Since the State - legislature has not enacted the legislation required to provide the legal authority for an IJM program meeting the C / iA and USEPA requirements an 1/ M program meeting such requirements is not available to areas within the State that require the program. Since no pult.. tI subdivision within the State has met the first criterion, USEPA believes that no political ------- Federal Register I Vol. 59. No. 15 / Monday. January 24, 1994 / Froposed Rules 3543 subdi ision is principally responsible for the failure to ha e an l/M program that, meets final USEPA regulations. Therefore. USEPA is not prohibited from imposing sanctions statewide. As noted pbc e. the State legislature bears the ultimate responsibility to adopt the requisite legislative authority and [ EPA. not the indi idual air quality districts, must subsequently adopt adequate regulations. Since the State does bear the ultimate responsibility. USEPA believes that it is reasonable and appropriate for USEPA to impose the highway sanction on the entire State. The 21 offset sanction requirements apply only to new or modified major stationary sources located in or to be located in areas that are required o have a permit program pursuant to section 173. Thus, USEPA is proposing to impose the 2:1 emission offset sanction only in those areas in which it will have an effes.t, i.e., the following ozone nonattainment counties: Cook, Lake. Kane. DuPage, Will, McHenry. Madison. Monroe, St. Clair, Grundy (Aux Sable and Cooselake Townships only), and Kendall (Oswego Township only). The 2:1 emission offset would apply to all new or modified major stationary sources of VOC and NO. that are locating to or located in each of those areas. USEPA proposes to impose the offset sanctions in the manner described in the proposed action on the sequencing olsanctions (58 FR 51270. 51275—51277 (October 1, 1993)). C. Removal of Discretionary Sanctions USEPA is proposing to temporarily lift (i.e.. toll) the highway and offset sanctions im,osed under section 110(m) upon the passage by the Illinois General Assembly and signature by the Governor of legislation which USEPA preliminary determines provides legal authority for a basic and enhanced l/M program meeting the requirements of the CAA and the IIM rr gulations. USEPA proposes to notify the State of this tolling by a letter to the Governor and As a ger.erai nh’. an ienc must go through rulemaking to remo e 0; .ili”r a requirement ir.’pesed :¼ni.gh .u! making While USEPA intends to issue a force lolling the 110(m) ‘ nctiona upor’ i’ e o..r.’jrvence of the e enrs aesr.:ibed. LSEPA wi’l use the good cause eaception to the ot”.erwise applicable requirement for propos.ed rulemai.ng EPA believes there is good cause to toll the sanctions once the state takes the act,on hrch cures the deficiency that resulted n Imposilion of sanctions See S U.S C. S 553(bltB). Therefore, no proposed action for removal will be issued. Consistent with USEPA’. intent to impose discretionary sanctions on!v on those areas that lack tegislati eeuthoritv. USEPA believes that ii is in the public interest to remove, at leasi temporarily, these dusaetionary sanctions as expeditiously as possible once the Sute ci Illinois has enacted legisfanve authority. the public by a notice published in the notice section of the Federal Register. The section 110(m) sanctions would not be completely lifted until the State submits a complete enhanced IJM program. USEPA will take action to completely lift section 110(m) sanctions upon a determination that the State has submitted a complete enhanced I/M program. As an alternative, if EPA takes final action disapproving Illinois’s committal SIP prior to taking final action imposing sanctions, EPA proposes that such disapproval be the basis for imposing the discretionary sanctions. In such case, the sanctions would be tolled in the same manner; however, if the disapproval is the final basis for imposing the sanctions such sanctions would not be completely lifted until EPA formally approves an enhanced 1/ M program for the State of Illinois. In such a case, EPA would take action to lift the sanctions at the same time as EPA took final action approving the State’s I/M program. USEPA’s action imposing or tolling the section 110(m) sanctions will in no manner affect USEPA’s obligation to impose mandatory sanctions under section 179(a) where one mandatory sanction shall apply 18 months after USEPA’s finding of failure to submit a complete SIP and the second mandatory sanction shall apply 6 months later. Sanctions under section 179(a) apply to the areas for which the deficiency exists. lithe State does not adopt and submit to USEPA a complete submittal providing for an I/M program within the 18-month and additional 6-month periods, the sanctions will automatically apply on those areas of - the State that were required to have but do not have such a complete l/M program under the amended Act. See 58 FR 51270 (October 1. 1993). Moreover, if EPA takes final action disapproving Illinois’s IJM committal SIP,a second sanctions clock will be triggered and Illinois must not only submit an IIM program, but EPA must also approve that program within the relevant time frames to stop the mandatory sanctions clock and avoid sanctions based on the final disapproval. IV. Regulatory Requirements A. Executive Order 12866 Under Executive Order 12866. (58 FR 51735 (October 4, 1993)) the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (0MB) review and the requirements of the Executive Order. The Order defines “significant .‘egulatory action” as one that is likely to result in a rule that may: (i) Have an annual effect on the economy of $100 million or more or adversely effect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof: or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order, Pursuant to the terms of Executive Order 1286 , it has been determined that this rule isa “significant regulatory action.” Nevertheless, after reviewing information regarding this action. 0MB has waived review, B. Regulatoiy Flexibility Act Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. Alternatively, USEPA may certify th the rule will not have a significant impact on a substantial number of sn entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. The USEPA cannot reliably predict the impact of these restrictions because of the exemptions authorized for certain highway projects related to mass transit, public safety, and those that have beneficial air quality impacts. Careful review and evaluation of each project is necessary to determine whether or not a project is exempt. If USEPA takes final action on this proposal, the 2:1 emission offset requirement will apply to major new sources and major modifIcations to existing sources of VOC and NO., in the Illinois ozone areas subject to the section 173 offset requirement. Major stationary sources of VOC and NO. with emissions are generally not small entities. Also, the 2:1 emission offset requirement does not prevent growth and modification but sets a higher offset standard than the current offset required. It is not expected that a large number of small entities will be affected by the emission offset requirement. In the past, when USE has made efforts to quantify the im ------- 3544 Federal Register I Vol. 59, No. 15 / Monday. January 24, 1994 1 Proposed Rules of the Act’s rules on the construction nd modification of sources, USEPA has een unable to do so due, in part. to the need to obtain information on future plans for business growth. This information is difficult to obtain, as businesses are understandably reluctant to make their plans public. The USEPA is also proposing to impose Federal highway funding assistance limitations statewide. This limitation could affect a number of government entities with jurisdiction over populations of less than 50.000 since government entities often apply for and receive federal funding under Title 23. United States Code, for road improvement projects. Although a great many projects aie exempted under section 179(b)W(B), a number of projects are expected to be affected if the USEPA takes final action. For the reasons stated above. USEPA cannot further analyze the economic impacts of this action on small entities. The statements in this package constitute USEPA’s full regulatory Flexibility analysis. C. Reporting and Record keeping Requirements This rule does not contain any information collection requirements - rhich require 0MB approval under the aperwork Reduction Act (44 U.s C. ...501 et seq.). Should the highway sanctions become effective, the Secretary of the U.S. Department of Transportation (USDOT) is required to determine which projects or grants should not be affected by the sanction and which, therefore, are exempt. This 4etermination will be based on information readily available in existing docume ptation gathered for the purpose of evaluating the environmental, social. and economic impacts of different alternatives for transportation projects. These analyses are already required for the preparation of environmental assessments and impact statements under the Nat:onal Environmental Policy Act (NEPAJ H:storically. exemption determinations by USDOT for sanctions have been based on such NEPA documentation and have not necessitated additional information gathenng and analysis by the states. In addition, since under NEPA. final environmental documents must be approved by USDOT, in most cases the NEPA documentation will already be in UsDors possession. Therefore, USEPA does not believe that the highway sanctions, when applied. will impose an qddi ionaI information collection urd. n on the states. Uben the offset sanction applies. sources subject to It wilt not incur an additional information collection burden because sources are already required under section 173 offset requirements to obtain an emission offset from between Ito 1 and 1.5 to 1 (depending on the classification of the nonattainment area in which they are located). Should the offset sanction apply, it would not impose an additional information collection burden because sources will not have to provide additional information In the application beyond that which they would already have to provide In the absence of the sanction. (For the information collection burden of new requirements of the amended Act for nonattainment new source review and prevention of significant deterioration, an information collection request Is being prepared to support rulemaking changes to parts 51 and 52.) List of Subjects in 40 CFR Part 52 Environmental protection. Air pollution control, Carbon monoxide, Motor vehicle pollution, Nitrogen made, Volatile organic compounds. Dated. January 7, 1994. Carol P4, Browasi’, Adminisfrvitor. 40 CFR part 52 is proposed to be amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS I. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401—767 1q. Subpalt A—(Ama.,ded] 2. Section 52.32. as proposed to be added in a document published elsewhere in this Federal Register. Is amended by adding entries for the State of Illinois in the tables In paragraphs (c)(IXI) end (c)(2) to read as follows: §52.32 D etlanary sanction under section 110(m) of the Clean Al, Act, a a a S ( a a a (1) (i) * S a Date Affected area sanction applies Pollutant(s) State of Ulinois. Cook DuPa9e - Gru’idy —Aux Sable T oea sNp Affected area Polk n s) —Goosetake ... VOC, NO Tcwnchip. Kane VOC, NO, Kandol . .—Oswego VOC, NO, TownsNp. Lake voc, NO Ma5son voc, PiO, McHen iy ......_ VOC, NO,c Monroe .... ......... VO , Nox St. Qair VOC, NOx Will ........ ... .. VOC. NO S • • • S (2) • a Affected ama Date sanction applies State of Iflinols (FR Doc. 94—1129 Filed 1—21—94; 1000 aml swio cons an 40 CFR Pelt 52 ( 1N33-t-6049; FRL-4826-5] Federal Highway Funding Assistance Umitatlons and Emissions Offset Requirements; Indiana AGENCY: United States Environmental Protection Agency. ACtION: Notice of proposed rulemaking . SUMUARY The U.S. Environmental Protection Agency (USEPA) is proposing this action to impose sanctions on Indiana under the discretionary sanction authority provided under the Clean Air Act, as amended in 1990, (CAA or Act) for failure by the State to submit a complete SIP revision for an enhanced motor _____ vehicle inspection and maintenance (TI M) program as required by the Act for certain oaone nonattainment areas. On December 2, 1992, the Indiana Department of Environmental Management (IDEIvfl, acting as the _________________________________ governor’s designee, submitted a commitment (Committal SIP) to adopt an I/M program to meet the requirement of the Act and the T/M rule by November 15, 1993. The committal SIP provides for the adoption and implementation of an enhanced TIM program meeting all requirements of USEPA ’s T/M regulations and includes an implementation schedule. On September 9, 1993, USEPA proposed to disapprove this SIP revision and on .— ,VOc o VOC, NO, VOC, NO, ------- Federal Register I..Vol. 59, No: 15 I Monday, January 241994 /J’i oprssed Rules “ 3545 lisapprove this SIP revision and on West Jackson Boulevard, Chicago, - The J/M regulation establishes November 29, 1993, USEPA Illinois 60604. . . ‘ minimum performance standards fo lisapproved this 511’ revision based on FOfl FURTHER INFORMATION CONTACT: .‘ basic and enhanced JIM programs the failure by the State to meet Francisco J. Acevedo, Environmental well as requirements for the folloi milestones contained in the committal Engineer, Regulation Development ‘Network type and program evalw SIP’s implementation schedule Section, Regulation Development . - adequate tools and resources; test pertaining to the enactment of necessary Branch (5AR—18J), United States frequency and convenience; vehide legislative authority. A full SIP revision Environmental Protection Agency, coverage; test prâcedures and standards; including State legislative authority to “ Region 5,77 West Jackson Boulevard,- -. lest’equipment;quality control; waivers kuplementibe program was required by Chicago, IllInois 00604, (312) 886-6061 and compliance via diagnostic -. November15. 1993. The Indiana - - Anyone wishing to come to Region 5 inspection;’motorist compliance legislature adjourned on June 30. 1993. offices should first contact Franciscoj. enforcetñent; motorist compliance. without taking necessary action to . - Acevedo. ‘ :. ‘ . enforcement program oversight; quality assurance; enforcement agaInst - provide forimplementation of an - ‘ SUPPLEMENTARY INFORMATION: ,. ,L. t... contractors, stations and inspectors; enhanced tIM program. On December. . ... -. , 30,1993, USEPA Region 5 issued a, - : I. ift i .- ‘ ,‘.data collection; data analysis and - letter finding that the Stats had failed to Pu to the ig7 amendments to• ‘reporting; inspector training and -. licensing or certification; public subJilIt the SIP revision required under-, the Act, vehicle I/Mpregrai is were Information and consumer protection;’,. sections 110 and 182 of the Ad Due to mandated for certain sreas with long:’ f the failure of -the State to submit a -- standin illrqdality Iroblem The repair effectiveness; complete SIP revision fulfilling either ., to 1he ct iecall noticns;on ’road the requirements if the Ad or its ‘role of JIM programs isan att ,i1nI t r. commitment to adopt and ftnplemei t tiategjv -ano requlied USEPA tdd€ nhnn , .d IFM program as promised In , “diUeTOqt performance standards lot.. jts iiinittel SIP. US PA proposes to’S-’ ,“liaaid” and “en nc 3”ll!v1 progr’ I by, e’xerase Its discretionary auThority “-. m performance standard Is the under the’Ad to apply a statewide ‘ ‘ - minimum amountofemisslon- - hlghwayiunding limitatIon sanction ‘ “ reductions.e ,prcgrain must achie önda2for lgrowthoffsetsanction lñ ‘ ‘,bas e done od ilorlenrhmn -- all areas required to haveapennit’ ‘ . d ij ddi l i o n the - nplementon program under the iiew source revIew amended Act directed USEPA was r qtl1red Ia submit by provisions of the ACL4 - ‘‘ ‘ ‘:- , addr s UU fl1entS for i 1992,a SIP revjsion (here 4ts’ eiitioá his p p éd.’ elements and prcg Irni. a to :iitA cinimittal iition are to be submitted by March 15, Issues for both basic and_111thflO d I/M f SIP”) including two elements: (1) j9 4. The USEPA will hold three public ‘- Jnograms. The amended Ad requires “ ‘coi tment from the Govejnor o heáriiigson February 16; 18, ánd.22. ‘. states containing nonati ment areas to her -deslgnee’to the timely adoptia make changes to Improve e dsting t/M .,.. Implementation of an I/Mprogrem.’ ‘Aoceassas: Comments on this proposed’ rule should be addressed to: J. Elmer - programs or implement new ones. • - meeting all the requirements of the I/M Section 182(a)(2)(B) of the Act directed regulation; and. (2) a schedule for.’ - — Bortzar; ChIeI.Regulatlon Development - USEPA to publish updated guidance for adoption of the program. with interim Section. Regniation Development Branch (5AR-18fl, united States - state JIM programs, -taking into - milestones including passage of consideration findings of the”, . - . ‘‘enabling statutory or other iegal - Environmental Protection Agency. -‘ Administrator’s audits and ‘ authority and adoption of final RegIon 5,77 West Jackson Boulevard, bv igati of these programs. The - ‘regulations. Accepta ce of J/M ‘ Chicago. Illinois 60604. Act fluither requires each area required committal SIPs in lieu of full SIPs was The public hearings will be held in ‘by the Act to have en t/M program to justified by the fact that states could not Jndiana as follows: February 16,1994 in Valparaiso. (Porter County) at the Porter B 0mt s guidance into the SIP, have been expected to.begin on these requirements. USEPA development of an JIM program meeting Coonty Administration Center on 155 promulgated an IIM regulation on - ‘ the requirements of the Act and the 1/ Indiana Avenue in Suite 205 at 11a.m. Noveml 5, 1992. (57 FR 52950) -. M regulation until the I/M regulation to 4 p.m.; February 18,1994 in New “.‘ Under section 182(c)(3) of the Act, - was adopted as a final rule, which did Albany (Floyd County) at the New areas designated as serious or worse’ not oxur until November 5, 1992. A Albany Courthpuse on West First and . ozone nonattainment areas with . complete SIP revision which contained Spring Streets In the third floor ‘ populatiolis of 200,000 or more, In’ - all of the elpments identified in the - assembly roam at 11 am. to 4 p.m.; and ,addition to metropolitan statistical areas adoption schedule. induding the February 22.1994 in Indianapolis with populations of 100,000 o more in authorizing legislation and (Marion County) at the Indiana the northeast ozone transport region, are implementing regulations, was to be Government Center South on 402 West required to meet USEPA requirements submitted no’later than November15, Washington Street in the auditorium at for “enhanced” J/M programs. These 1993. 11 am. to 4p.nL - areas were required to submit a SIP On December 2.1992, the State of- Co nes of Indiana’s JIM Committal SIP revision to incorporate an enhanced J/M Indiana submitted-a committal SiPto submittal, USEPA’s proposals and program by November 15, 1992. In USEPA. A public hearing on this rulamnekings, end other documents Indiana, the State must implement a submittal was held by the State on psstinent to this proposed rule are basic J/M program in the urbanized October 22.1992, in Gary, Indiana. The available at the following address: U.S. areas of Clark and Floyd counties: it submittal included a schedule of Envireaunental Protection Agency, must implement an enhanced J/M implementation and a commitrac Region 5. Air and Radiation Division, program in the urbanized areas of Lake the timely adoption and implem Regulation Development Branch, 77 and Porter counties, of an JIM program in the Lake, P....., ------- 546 . Federal Register F Vol. 59, No. 15 1 Monday, January 24. t994! Proposed Rules. Clark, and FloydCounty owne dëmonstrations .including.onethatthe submission ra ’neiiatatarea’ attainment areas meeting all the plan reflecting the lesser amount ‘ based on the sübmissfon’ failure to- lrements of the I/M regulation and includes all measures that can feasibly meet one or moreplan elements amended Act by November I5 1993. be implemented in thearea in light of” required by the Act-(3) a state has not” u June 30.1993, the indiana technological achievabflity. The Lake made any other submission required by’ legislature adjourned without iak ng the and Porter areas in Indiana will have’ the Act or has made a submission tbet: rieoessuy action to enable Indiana to difficulty meeting the RFP requirements does not meet the completeness a ’iteri& rdopt and implement the JIM provisions because aedit for ceitain pre-1990 CAA . or has made a required submissiçn that nandated by the amended Act and the programs, such as the federal motor ‘ ‘is disapproved by-USEPA for t mel IIM tub in Lake and Porter vehide aintrot prograin’and ba ic J/M is meeting the Act’s requirements: or(4ja Counties. Failure to provide sudi not allowed. The additional benefIts of ‘.requirement of ea approved plan is not authodtyprevented the State frouL . enhancedilM. howerer . are fully:’ •‘ being i plem.nled.. ‘ - .‘ ‘ . iubmltthig a complete SIP revision ‘aeditable towards meeting.thó RFP. -. Under section lT9ta); unlessthe - state c ontalning all the required elements of ,equi pLPnh nr 4UM iioiieof corrects the defidency otmof th, two:: ihe program by November15. 1993. On most powerful tools available to areas in bstedin section 179(b)-must. august 17. 1993. USEPA sent a ester to - terms of providing e pe4itieus ..: ‘ Imposed 18th ’ aft a find1n Is overnor Dayhof Indiana and to the . j iA both voc . nd NOx, both - . :mede. and the second must he imposed: Regional MnIIIIIStIUIOt of th ”e Federal of which. are precursors of ozone. •. ‘6 months after the EIst eandi m.is Highway Adndniztration advising them’ Finally..a federally approvable. .... .“ Imposed. if the defid m1 that USEPA hart decided to exercise its • j - of cliscretionory ’ authority under section,’.. the most a -. ‘ . months 1i0(m)bftheAd .toimpos,st nn : at ny.thneoncea finding of SIP .r: : . effective JIM Ismade . After review of the: -. SIP, USEPA ”proposrd to disappr thácommih mentofl ‘ Septethber 9.1993(58 FR 47415), and on November29. .1993 USEPA ‘ : “ di áDprôvedthI Sll’.revlsion ba ed en I Und I thefailumb,the:Statetonmeetlnterim . /iiiis ixdflnatruilostvnes In the schedule . ‘; ooutained n the SIP submittal ‘: - ‘ . ‘ utho& tined In — tainhigto thoenathnento1ne essazy. the Act. the predicate IindIñgihnd - -are brityhefmple rnentW - . - ‘ -‘ typesofsanctforeection179. L dafi Liirementsduting the 1993 Indiana - ‘.‘ The two sanctions available to USEPA - -USEPA rreritt egislativesession.On ‘r . :forappflcationbnd&s eètIan ’ufl(m3;as - ’ toanyp November iS 1993; the State ofludjana’ provided In section 179(b),ara - deems reasonable and appropriate to’ lailed to eet its commitment I0USEPA orohibition on.the funding of rtnin: ensure that thaxequlkements otthe A b felling tesubinit a-full SIP revision highway pro jects: and(2) an Increase 11 ‘are met. See S I Fa44534,44536-44 3?. Io IFM program Impiernentetion. ’ - the emission offset.requlrement for new Ho iveveztheAd requires USEPA to:’ - Beyond being.a specific mandate of and modilled major .Statfnh*,y sources. establish. by rule criteria to ensure that: the Act, enhanced JIM ograms play an’ The highway fnntiing sanition prohibits such sanctimis.are notappliedon a.-. importantrole in the ability of Lake and the approval by the Secretary of statewidahesiswher one or more .-‘, Porler Counties to comply with the CAA Transportation of any proJects or the political subdivisions covered by the- requirements fur achieving the National awarding by the Secretary of any grants, applicable Implementation plan are AmbientAirQuahtyStandards . underTiffez oftheUS.çode ,other principally responslbleforthe. (NAAQSk for ozone, as well as the Act’s than projects or grants for safety and deficiency. - - - requirements for reasonable further certain other categories of projects listed Oii September 28, I9923JSEPA progress (RFP) reductions for ozone. in section i7g(b)(i). The offset moction proposed criteria under section 110(m) The Ad provides that each state in requires that, when statesapply the that It would use when proposing which allot pad of certain emiision ofl ’set requirement of section statewide sanctions to detamm1n if one - classifications lo t ozone and/or - 13 to new or mhdified sources, the or more political subdivisions Is nonattainment areas-ale located is ratio of emission reductions to Increased principally responsible for a SIP required to provide an attainment emissions must heat least a to-i. - deficiency. 57 FR 445 4. These- demonstration showing that its SIP, as section 179(a) of the Actsets forth the proposed criteria axe discussed later In reviseä. ,wiU provide for attainment of uiings1 which provide uzru ’A with his notice. . the NAAQS by the ipplicable. dim mion under section 110(m) 10 With regard to lndlina, EPA is using. attainment date(s). The Act further Impose one or both of the sanctions itS discretionary authority wider section requires that each state in which llor specified under section 179(b). The four - - - - part of a serious, severe, or extreme fi in U) A state has failed, for sOn October 1.1993, U.S. EPA pu)posed a rule ozone nonattainment area is located a nonattafnment area, to submit a SIP or s°” ° ’u the order In which the erections shall apply under .w1i 179 of the Ad. SIFR 5l27O thall submit SIP revisions, that Will en element of the SIP, or that the SIP or The rule pinpi that the offset eanctton apply first reduce VOC emissimis.b November 5, Sn’ element submitted fails to meet the and the highway fnnding eractionapply sernird. -- : 6 by at least 15% of 1990 beselin.- compldteness critp -ia of section tio(k) . cou11ng to th rroposed nile. U.S. EPA may sissiiais.if the ied mctions identifi --l Ifl (2) USEPA di pproves a SIP. thu se” ‘ of sanctloii ’ through - Individual or •d- ,s t - naking. Th. SW revisions ar ’ • than 1!% ________ - proposed m c ‘gapplim c L :4l i nee ism , . State L voh - ‘Section l79(c)rcfersIoA e 7fln 1ogs . - sanctIo oath . ,‘ undetsecti, , )and does waiver uzzdersection. 182(b)(1)(AXi J; d b , d d h i m. wIlt .11 be not govern san. u Imposed en ctlon this requires the State to make several - referred to by the one term ‘flndlnp . ’ 110(m). - - - - - -. ------- - - . Federal. Register I Vol. 59, No. 15 I Monday. January 24, 1994 I Proposed Rules - 3547 110(m) to propose earlyianctions.3. - -•. Stat&Irnetropolitan areas to meet the-•• management districts may request based on Indiana’s failure to submit a - Clean Air Act deadlines for attaining•. Implementation of the state I/Mprogi-am complete SIP to improve its I/M healthy air quality is Severely - within their districts once that progran program. EPA is taking this acthn for - compromised. As previously noted, Is adopted, this authority is meaningle two reasons: (1) Congress required enhanced vehide inspection and unless the State has first established an timely submittal of enhanced tIM maintenance is the single most effective appropriate program through legislation programs as a measure the State’s air pollution control measure available and regulations. Since the State - metropolitan areas to meet CAA and dela ed legislative approval of an - legislature has not enacted the deadlines, and any Iegislati9ó delay acceptabl e program further burdens legislation required to provide the legal threatens the State’s ability to meet : major industrial sources of air pollution authority for an enhanced t/M program those deadlines, and (2) enhanced IIM with responsibility for cleaning tbe aIr. meeting the CAA and USEPA Is the single mod effective air pollution Under section 110(m), USEPA may .. requIrements, the program Is not control measure available. Delayed . apply sandoi c to any portion of the- available to eieas within the State that leg lslative8pproval of an acceptable I! :- state it determines Is reasonable and require the program. Mprogram places a d spro onat.: appropriate. During the 24 months... . . . since uGpolitical Subdivision within burden for cleaning the air on the State’s following the finding. USEPA may not the State has met the first aiterion. EPA major Industrial sources. :• impose the sanctions statewide if one or believes that no political subdivision Is nore political subdivisions within the principally responsible forthe failure to • -: --state Is principally responsible for the. bave anenlianced tIM pmgram. A. Finding Under Section 170(a) - --. deflcienc that Is the basis for ‘ ons. Therefore, EPA Is not prohibited from - aItezIafor ‘ ‘ fj statewide,M noted- beitwthe. j993,USEP - - pt the . sub nr ltacc andJD 1, November Ad.USEPA’s letter (i) It has under s ctIon 179(a) That triggers -; USEPA dlsoniryaiØiorItjTtó !1 orhas i p 1sib 1utv,usE!A: Impose th ctIon&propdsed In tins.: t uuvv uiaI It 1smasona lè md aeiegarqa me responsibility toperfonn, appropriate for USEPA to Impose the - noticO under section 1lO(i4,PWihCt Ofl ‘the required aCtlVity (3) it as received; on the entire State. . No ber29, 1993.1JSEPA ‘- where appropriate, adequate flmci fs anctIon i quirements. disapproved Hem ommlUal Sfl’ -euthontylo obtain fimdmg,• from to new or modified major - revision because the State had failed to - - sthte to perform the required -aotI meet its çnmm 4 tnnent. -. A. -: has agreed to perform (and-hesnot’ -: located or thW. - r If sufficient esm* been - . ievokod the agreement), orisi - - to hay to section madeby Indiana toward the .r1 -.- - y g • law to ecoept Implementation of an approvable I/M;. perfo ____ offset ‘côiàn - pro iremtobeoperát lona lonorbefore:. (5)ft et ui d -:lnthefolloudj zqiienonattalnmiit Januaiy 1, 1995, EPA hereby announces subdivision” IS -. count as: L ke Porter, Uark, Floyd, Its Intention to Impose sanctions on ye body that May 15,1994. - . - . •.• . - - - ‘Is respondible for adopting and/or - . MSflOfl St. Joseith. i}hjirt , and - B. Rationale andApproach for Section Implementing air pollution coAtrols Vanderbuigh. The 2:1 emissIon offset any combination of nolitical — would apply to all new or modified 110(m) Sanctions . -.. . . :- - . su6divislons aeateJ by, or pursuant to; major stationary sources for volatile - Section 110(m) of the Ad allows -. Federal or State law. If no politlcal- - organic compounds and oxides of USEPA to-apply the Federal highway - subdivision meets ailS aiterla, USEPA nitrogen that are locating to or located funding assistance limitations and 2:1 - may use ks discretion to determine - In each of these areas. USEPA proposes to Impose the offset sanction In the emission offset sanction at any time (or whether It Is reasonable and appropriate manner described iz 1 the proposed at any time after) it makes a finding to apoly sanctions on a statewide basis. under section 179(a). Based on its In ibis notice, USEPA Is proposing to -. action on the sequencing of sanctions finding dated December 30, 1993, - use the above proposed criteria to (58 FR 51270.51275—51277 (Oct. 1, USEPA Is proposing to Impose both the determine If it may Impose hIghway 1993)). Federal highway funding assistance sanction statewide for Indiana because C. Removal pf Discretionar, Sanctions limitations and 2:1 emission offset of the failure to submit a complete USEPA Is piopo ing to temporarily sanctions. USEPA believes that the enhanced l/Mp Imposition of both sanctions is - - - USEPA believ 5 the first criterion lift (I.e., tollJ the highway and offset appropriate because of Indiana’s failure has not been met by any political - . - to adopt legislation to enhance Its subdivision. Only the Indiana - Ma general rula an Agency must go thinugh ru1 aklng to remose or alter a lequlrnuani existing vehicle Inspection and - legislature, composed of representatives wei through roleatiaking. While US EPA maintenance program. In the absence of from all portions of the State of Indiana, Intends to lena a nodes lolling the 119(m) an Improved vehicle inspection and has the authority to revise the state s n lons upon the oemtyenes of the events nustvstemmaiia program, the ability of the -statute to provide for an enhanced I/M - desa1bed. Us. EPA will use the good cause - - esceptlon to the otherwise applicable requirement _______ - - program meeting the CAA and EPA for proposed rulemaking. WA believes there Is 3U.S. EPA leaned a litter es so. moos, requirements Once the legislature has good cause to toll the sanctions onca the state takes s..a.etIm the State’s eoposed SIP revision acted, only state government agencies . the action which cures the deficiency that resulted •leiIuroteanImit aS 1P revisIon as required by can adopt any implementing In the Imposition of sanctions Sees uSC Act. I4nA. .y sa lons under section 179(a) were ______ S553(bRB) Therefore no propaied action for t -o tiie laster nou ytng tiia regulations While individual air removal will he issued Consistent with U.s. SPA. ! c(tbs deficiency. poLlution control districts or air oualitv Cont lm . e ------- 3548 Federal Register / Vol. 59, No.. 15.! Monday, January 24, 1994.1-Proposed Rules sanctions Imposed under section 110(m) the amended Act. See 58 FR 51270 :‘. small entities. Also, the 2:1 emissjo —’ upon the passage by the Indiana (October 1, 1993). .. - offset requirement does not prevent. legisIature and signature by the Governor of legislation which USEPA - I V Regulatory Requirements . - growth and modification but sets a higher offset standard than the current preliminary determines provides legal A. Executive Order 22866 offset required. It is not expected that a authority for an enhanced IIM program Under Executive Order 12866. (58 FR large number of small entities will be meeting the requirements of the C 51735 (October 4. 1993)) the Agency affected by the emission offset and the I/M regulations. USEPA must determine whether the regulatory requirement In the past, when USEPA proposes to notify the State of this - action is “significant” aüd therefore - . has made efforts to.quantify the impact tolling by a letter to the Governor and subject to Office of Management and ,oflhe Act’s rules on the construction the public by a notice published in the• Budget (0MB) revIew and the p-....- and modificatiqii of sources, USEPA has: notice section of the Federal Register.’ mqulrements of the Executive Order. . - been unablelo do so due, In pith, to the The section 110(m) sanctions would not The Order defines “sIgnificant’ need to obtain information o future -. be completely lifted until the State of regulatory action” as one that is likely ’ plans for business growth. This Indiana submits a complete enhanced ‘ to result In a rule that ma r --‘--. :. infornistion Is difficult to obtain, as M program to USEPA. USEPA will take: . (i) Ilavean annual effect &i’the - -, businesses ré undâstandably reluctant - action to completely lift section .110(m) economy of S100 million or more or -. - tO make theIi plane public. . - ‘ sanctions upon its (leternnnatien that . ‘.adversely effect In amatenal way the : The USEPA is also proposing to —.: - the Stale has submitted a cornplete. . economy. i sector of thOeconotny. : ‘P° Ee4 ehhanood IFM program — . . .. ossistance This; -.As an alternative, EPA proposesf affect a number of - the-basis for the disetion iysanc entitià vIth jurisdiction . is EPA’sdliapprovalofIndiana’s ., lof less then 5o ooo . ‘ . omrnlttal SIP: If the t:eiUUes often apolyf of ih in mfttal I receive federal fuidIn unàer. disaion rysinttioii iuch ajctiops, Title 23, UnIted Statei Code, for road would lie tolled hi the semé mam&as a greal If the finding of failure to submit ir - theba. is ho ev ff the ‘ hebasisforImposing boaftecledif?. such sanctions would action: ‘ ifted until EPA (orma]l approves ‘the reasoni stated above EPA ‘ ‘ enhan çd IIM program for the State of or further analyze the economic . Indiai a In sãcha case, EPA would f in lire Executive s’ofthi action on small entities. action to lift the sanctions Et the same - - - Pursuant to the terms of Executive .. The statements I time as EPA took final action appruvln( ‘ Order 12866, it has been determined ... -constitute EPA s full regulatory the State’s UMpro rani. . - -- . that this rule isa “significant regulatory .. flexibility lj,sls.: - -‘ . - . - - USEPA’ action imposing or tolling action.” Nevertheless, this action .C. Reporting dndRecordkeepin,g . the section 11O(m) sanctions will In no’ - been Informally submitted to 0MB for: i . Requ rnen manner affeá EPA’sobligation to review. - . :- . - impose mandatory sanctions under . This rule does notcontain any section 179(a). The mandatory sanctions RegulatoiyFjexibilityAct ‘. .. lzforznationcol1 ction requirements clock for Indiana was triggered on- Under the Regulatory Flqxibility Act, which reOulre 0MB approval under the NoveMber 29,1993 by EPA’s 5 U.S.C. 600 et seq., USEPA must Paperworlr Reduction Act (44 U.S.C. disapproval of Indiana’s committal SIP. prepare a regulatory flexibility analysis - 3501 et seq.). Should the highway - Theraforeone mandatory sanction shall assessing the impact of any proposed or sanctions become effective, the apply 18 months after USEPA’s final final rule on small entities. 5 U.S.C. 603 . Secretary of the U.S. Department of disapproval of the committal SIP and and 604. Alternatively. USEPA may - Transportation (USDOT) is required to the second mandatory sanction shall certify that the rule wifi not have a - determine which projects or grants apply 6 months later. Sanctions under significant impact one substantial ,. should not be affected by the sanction section 179(a) apply to the areas for number of small entities. Small entities end which, therefore,-are exempt. This which the deficiency exists and until - include small businesses, small not-for- determination will be based on such deficiency has been corrected, profit enterprises, and government Information readily available in existing Moreover, lithe State does not adopt entities with jurisdiction over documentatio i gathered for the purpose and USEPA does not approve populations of less than 50,000. For of evaluating the environmental, social,. regulations providing for an I/M . reasons cited below, USEPA has not and economic impacts of different program within the 18-mohth and completed a regulatory flexibility alternatives for transportation projects. additional 6-month periods following analysis for this nile: ‘ These analyses are already required for the effective date of EPA’s disapproval, The USEPA cannot reliably predict the preparation of environmental the sanctions will automatically apply the impact of these restrictions because assessments and Impact statements on those areas of the State that were - of the exemptions authorized for certain under the National Environmental required to have but do not have such highway projects related to rn ”- transit, Policy Act (NEPA). Historically. - a USEPA-approved I M pr: ram under public safety, and those that l . exemption determinations by USDOT _________ beneficial air quality impacts. Careful - for sanctions have been based on such - - ‘o impi ediacreticnay eanctiont only on review and evaluation of each project i” NEPA dotument ion anc have not e a that hek 1e 51.Iative au: -.-f ’y US. ‘. necessary to determine wheth not ‘iecessitated additional i rmatio1 k .vesthtubikinte . remo%e. at &eui teinp aiiIy. thea. di th, a oroject is exempt. ‘athering and analycis by the states. In ibi. on the State of Ind Iana ‘Major stationary sources of ‘ut. and addition, since under NEPA. final bs tgIaI 7e aulbozfty. NOx with emissions are generally not environmental documents must be ------- • Federal Register.! VoL .59; No. 15! Monday, January 24, 1994 / Proposed Rules • . 3549 (j) * * * of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control. Carbon monoxide, Motor vehicle pollution, Nitrogen oxide. Volatile organic compounds. - Dated: January 7.1994. Carol M. Browner, Adminisb’ctor. - 40CFRpart52 lsproposedtobe amended as follows: - approved by USDOT, in m ist cases the. NEPA documentation will already be in USDOTs possession. Therefore, USEPA ______________________ does not believe that the highway inrtiOnS, when applied, will impose an additional information collection __________________________ burden on the states. - - .Wben the offset sanction applies, sources subject to it will not incur an additional Information collection burden because sources are already - _____ isquired under section 173 OffSet • PART 52—APPROVAL AND ____ _____ requirements to obtain an emission • PROMULGATION OF ____ _____ offset from between 1(01 and 1.5 to I IMPLEMENTATION PLANS _____ _____ (depending on the classification of the. . - . - nonattainment area In which they are. 1. The authority citation for part 52 _____ located). Should the offset sanction . continues to read as follows: apply. If would not Impose an -. - • . * then. 42 usc 7401-7671q.- idditlonal Information collection - • :. - . S-.. - . burden becausó sources will not have to Subpart A—jAznendedj ____________________ provide additional informatlonin tb. •. application beyond that which they; 1 d ° ’° ___________________ •wouldalreadybavetoprov ldelnUie-- • -. I. . .._, • . _________________________- - • 11- - - L - • ., .a , t. . . I - e . Vwuore .. IW LI 1 5i54 . I - . •. ;‘-. . . . _ - . -. es uw ‘ ‘ufl . tror r . .. — I .L - - - Information - Uectl burden f w • ..;. b. - . .. • . . n?u E si 1 and(cX2)toread o° , _______________ ndpreennofs1gn1fi” nt - 623 Dlacrellena,yeanctlonunder. • . “. . .-. • - deterioration, an Infonnatloncollqctlon section 110(m) of UIOCioSA Air ACL• - - - - :‘--- • maui sta1ie ln p r eparedtosup iort -. . * . RDaC O4- l lSlFflOd l-2144.10000nd nifenialclngchan estoparts51and52.J ( J * * .. - ‘.“acocjmeo, r - - Date Affected area sancton applies S - • • ._ S State of Indiana: - — VOC, NO. Elthart —. - -__ - VOC. NO. Royd- . Lake__— - . VOC. NO. - Mai lan — - • VOC,NO . P 0 , 1ev VOC. NO. St. Joseph — ...._ _.... VOC. NO . 1 Vendeiburgh - VOC. NO, • — - • ••, • . ... 3 1,. : . - -•,_..• ------- I — 1478 Federal Register I Vol. 59, No. 7 I Tuosday, January 11, 19 4 / Rubs and Regulations before exercising this right. CNMA will attempt to have the Mortgage assigned to another eligiblo coinsuring lender (unless GNMA dotorminos, with (ho agreement of the Commissioner, (hot the attempt would prove ineffectual because of market conditions or other factors). This attempt will be undertaken by soliciting offers to assume (ho defaulting lender-issuer’s rights and obligations under the Mortgage from those eligible coinsuring lenders that are also CNMA Issuars and that are Indicated on a periodically updated listing furnished to GNMA by the Commissioner. (b) For any Coinsu red Mortgage that is In default and held by a defaulting lender-Issuer. GNMA will have the right to perfect an assignment of the Coinsurod Mortgage directly to itself before extinguishing the Mortgage by completion of foreclosure action or acquisition of title by deed-in-lieu of foreclosure. (c) GNMA. as assignee, will give the Commissioner written notice, within 30 days after taking a Mortgage by assignment in accordance with this section. in order to allow an appropriate endorsement and necessary changes in the Commissioner’s records. (d) The Commissioner will endorse any Mortgage assigned to CNMA as provided by this section for full insurance, effective as of the date of assignment in accordance with the appropriate provisions of 24 CFR part 207. Any future claim by GNMA. or any. assignment of the fully insured Mortgage. will be governed by the appropriate provisions of 24 CFR part 207, except that any payment will be made in cash instead of debentures. Dated: December 16, 1993. Nisebas P. Retsinas. Assistant Secretoryforilousing-Fedeml Housing Commissioner. IFR Dec. 94—35 Filed 1—10—94; 8.45 uml IUWNO CODE 4210-87-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26CFR Part I [ T.D. 8474) fIN 1545-AQ99 Removal of Finat and Temporary Regulations Relating Primarily to Provisions of Prior Law; Correction AGENCY: internal Revenue Service (IRS), Treasury. ACTION: Correction to the removal of flnal regulations. SUMMARY: This document contains a correction to the final and temporary regulations (T.D. 8474) which was published in the Federal Register for Tuesday. April 27. 1993 (58 FR 25556). The regulations relate primarily to provisions of prior law for which action is taken in response to the Regulatory Burden Reduction Initiative. EFFECTIVE DATE: April 27, 1993. FOR FURTHER INFORMATION CONTACT: Paul C. Feinbeig, (202) 622—3325 (not a toll- free number). SUPPLEMENTARY INFORMATION: The final and temporary n ulations that are the subject of this correction amended the Code of Federal Regulations by removing regulations under parts 1. 5. Sc, 12. 54 and 602. Need for Correction As published. T.D. 8474 contains an error which is misleading and is in need of correction. Correction of Publication Accordingly, the publication of the removal of final and temporary regulations (T.D. 8474), which was the subject of FR Dec. 93—9694. is corrected as follows: PART 1—(CORRECTEDJ On page 25557. column 2. in part 1, in the table at the end of the column, third entry following the column headings, the language Section Description of amendment Section Description of amendment Jacquelyn B. Burgess. Alternate Fedeml Register Ljaison Officer. Assistant Chief Cou nsel (Corporate). IFR Dec. 94—454 Filed 1—10—94; 8:45 8mb BLUNO CODE 4830-01-U ENVIRONMENTAL PROTECTION AGENCY 4OCFR Part 52 LF RL-4822-4 1 fIN 2060-4t010 Criteria for Exercising Discretionary Sanctions Under Title I of the Clean AIr Act AGENCY: Environmental Pmotci.tion Agency (EPA). ACTION: Final rule. - SUPPLEMENTARY INFORMATION: I. Overview The EPA Is promulgating criteria under section 110(m) of the Act to ensure that, during the 24-month period Following a finding, disapproval, or SUMMARY: This rulemaking sets forth Background criteria that EPA must (:nhlsi(ll’r when exon:isitig its (Iiscrotionnry nul hority In 1 c 1 050 snnt:Iiu,ia on a hituwIih, basis pursuant to the Clean Air Act as amended in 1990 (Act). If EPA makes one of the findings of State implementation plan (SiP) defIciency described in the Act. EPA may iinposo an emissions offset or highway funding sanction on any portion of the State that the Administrator determines is reasonable and appropriate for the purpose of ensuring (hat the requirements of the Act relating to plans are met. This nilemaking establishes the criteria EPA shall use in exorcising its discretionary authority during the 24- month period following a finding of a plan deficiency to ensure that these sanctions are not applied on a statewide basis when one or more political subdivisions are principally responsible for such deficiency. In addition. EPA describes the discretionary sanctions provision and EPA’s anticipated application of those sanctions “at any time” alter the Agency makes a finding. EFFECTIVE DATE: This rule will be ___________________________________ effective February 10. 1994. ADDRESSES: Materials relevant In this • • • • • rulemaking are contained in Docket No. A—91—66. A reasonable foe may be charged for copying docket materials. • ‘ The Docket Is located at time following address end may be Inspected from 8:30 a.m. until noon and from 1:30 p.m. until 3:30 p.m.. Monday through Friday: Room M—1500 (LE—131), Waterside _________________________________ Mall, 401 M Street SW., Washington. DC 20640. FOR FURTHER INFORMATION CONTACT: Ted Creekmore. U.S. EPA, MD—IS, Research Triangle Park. North Carolina 27711. • . (919) 541—5699. 1.48-1(e) Removed and Reseived. Is corrected to read • . . • 1.48- 1(I) Removed and Reseived. ------- Federal Register / Vol. 59, No. 7 / Tuesday, January 11, 1994 / Rules and Regulations 1477 rklerminalinn (hereinafter “finding”) referred to iii section 179(a), sanUions 1 I(irSIILIIIt to section 110(m) are not on a statewide basis where one or inoic politkal subdivisions are lrincipally responsible for such deficiuiu.y. Thus, these criterid apply only in the limited circurnslan(.e in luitii EPA is considering the i iii posit ion of statewide sanc.tions under section 110(m) within 24 months after the Agency makes a section 179(a) liiicliiig. (lii September 28, 1992 (57 FR 44534), EPA prapoi ud criteria that EPA will use to deturinind if sanctions imposed pursuolit to section 110(m) of the Act may not be applied statewide. The lireatitbie to the proposed rule contains a detailed discussion of the background o1th AU, of the proposed criteria, and of the provisions of section 179 and section 11(1(m) (see 57 FR 44534— 44535). New § 52.30(c) of the rule provides five criteria that EPA will use to determine if sanctions imposed pursuant to section 110(iii) may not be imposed statewide. If at least one political subdivision meets all five of the criteria, then that political subdivision will be considered principally responsible, and EPA will not iuiposo sanctions on a statewide basis. Rallier. EPA will impose satictians only on the areas of the State for whk.li EPA determines it is icasonable and appropriate to impose sanctions. If all of the criteria are not unit by at least one political subdivision, ilwii no politic:al subdivision is pruicipally responsible, auid EPA will use its tlist.iution to determine whether to apply statewide sandions. Howevçr. if EPA, using its discretion, initially determines that less-than-statewide sanctions should be applied, the Agency will not need to consider the criteria; EPA will impose sanctions on those political subdivisions the Agency has determined to be reasonable and approprhite. Such decisions will he iii,ido on a t.aso-by-caso basis and each action will be subject to the notice-and- .ouiimetit rulemaking procedures of thu Adumiiiiistnstive Procedure Act.i ‘As notud iii El’As proposed rule. ihe A cncy wilt Follow nutii.e .and.conimcnt rulemaking in every Instance that LPA anticipates Imposing suciiors 110(m) sanctionS (57 FR 44534, September 26. 1992) In each rulemaking action, the public will have an opportunIty to comment on the proposed geographic scope of the Sanctions, the timing of die sanciions. and the order in which the two available sanctions will ho imposed le the extent die public has commented on these Issues as a general mailer in this rulemaking action. EPA has responded by suggesting that the issue is more .ippropriaiuly raised In independent rulemaking .1(1 unit. Iii wlik Ii sULIiofl 1 1o(inl sant tiun , are ir i , Pi i .,uiil In the final rule, EPA has changed four provisions from the proposal based on comments received regarding spu(.iIlC details of the regulatory text. l’huy are as follows: 1. In § 52.30(a)(2), the definition of “required activity” was revised in two ways. First, the phrase “may include, bitt is not limited to” was deleted from the definition. Second, the phrase “adequate SIP or SIP element” is replaced by the phrase “plan or plan item.” These two changes were mado in order to follow more clearly the ldnguage of section 110(m). Since section 110(m) refers only to actions required with respect to a “plan or plan item,” EPA agrees that the phrase “may include, but is not limited to” is unnecessat’y because it appears to imply EPA has authority to impose sanctions with respect to findings other than those For a plan or plan item. Furthermore, since section 110(m) uses the phrase “plan or plan item,” EPA believes it would ho more consistent to use that phrase in tile regulatory language rather (hart the phrase “adequate SIP or SIP element.” 2. The terms “plan or plan items” are added to the definitions section of th rule, § 52.30(a)(4), and are defined as follows: “For purposes of § 52.30, the terms ‘plan’ or ‘plan item’ mean an implementation plan or portion of an implementation plan or action needed to prepare such plan required by the Act, as amended in 1990, or in response to a SIP Call under section 110(k)(5) of the amended Act.” 3. In § 52.30(c), “criteria,” as defined in the proposal, provides: “The EPA will use tIm following lIve criteria, all of which must be met, to determine whether a political subdivision is principally’responsible for the deficiency.” This section is clarified by revising it to read as follows: “For the purposes of this provision, EPA will consider a political subdivision to be principally responsible for the deficiency on which a section 179(a) finding is based, if all live of the following criteria are met.” Thus, the nile clarifies that all five criteria are to be met, not merely used by EPA to dutorrnimw how sanctions will be imposed. 4. In its proposed rule, § 52.30(d)(1), EPA provides: “If all of the criteria in paragraph (c) of this section bave been met through the action or inaction of the ‘same’ political subdivision, EPA will not impose sanctions on a statewide basis.” Although no comments were received from the public on this language, a review by the Agency suggested that tile phrase “same political smihilivislon” niay be confusing. By including that language in the nile, EPA was attempting to Indicate that one political subdivision must meet all five of the criteria before EPA’s authority to impose sanctions on a statewide basis would be constrained (see 57 FR 44536). For example. if a State has two nonattainment areas and a rule, which was past due under the Act, was not yet adopted and submitted to EPA for either area, EPA would look at each nonattainment area independently to determine whether the five criteria were met. If the first three criteria were met by one nonattainment area and the last two by the second nonattainnient area, then EPA’s authority to impose statewide sanctions would not be constrained. However, ii one nonattainmen area met all five of the criteria, EPA could not impose statewide sanctions based on the finding for that area. The EPA is replacing the word same with the word one in the rule in order to alleviate any confusion, This provision will be implemented in accordance with the interpretation above. II, Background In general, the preamble to the proposed rule notes that the Act contains two sanctions provisions: 1, Section 110(m)? provides the Administrator with discretion to impose sanctions at any time on any portion of the State that she determines is reasonable and appropriate: 2. Section 179(a) 3 requires the Administrator to impose sanctions after specific timeframes if the deficiencies on which the sanctions are based are net correctod. This rulemaking considers the application of sanctions under section 110(m). However, because section 110(m) and section 179 are interrelated the preamble to the proposed rulemaking discussed sanctions under section 179 (a) and (b) in order to clarify what is required by section 110(m). The specific types of sanctions which may be imposed under section 110(m), or must be imposed under section 179(a), are listed in section 179(b). Tile two sanctions provided are a highway 242 USC. seCtion 7410(m). ‘42 U S C. section 7509(a). Ii is necessary, for clarity’s sake, to understand that seCtion 179(a) performs two very distinct functions It defines several types of findings, and requires EPA to bnpose sanctions if one of these findings has been made. Section 179(a) (i) through (4) sale forth the four type. of findings which may lead to the imposition of. sanction. The introduction and latter pail of section 179(a) mandate that at least one sanctIon must be imposed 18 months after a finding has been made with ruapoct to curtein types of plane If the dufk.ienr.y is 1101 corruc,iod ------- 1478 Federal Register I Vol. 59. No. 7 / Tuesday, January11 , 1994 / Rules and Regulations ‘unding sanction and a 2:1 offset anction. Those two sanctions are lescribed in more detail in the preamble othe proposed rule (see 57 FR 44535). Section 179(b) sanctions may be applied pursuant to section 110(m) when the Administrator makes a finding under section 179(a) (1) through (4), provided that the Agency has followed all procedural requirements for imposing a sanction. The Administrator has no authority under section 110(m), nor any mandatory duty under section 179(a). to impose sanctions until she has mod o a finding. The types of findings providod under section 179(a) are discussed in more detail in the preamble to the proposed rule (see 57 FR 44535). Section 110(m) may be divided into two distinct parts (see 57 FR 44535). The first part of section 110(m) contains four distinct elements: 1. The timing of the imposition of section 110(m) sanctions; 2. The availability under section 110(m) of the sanctions listed in section 179(b): 3. The reference to a finding. disapproval, or determination under section 179(a) (1) through (4); and 4. The geographic scope of application of sanctions under section 110(m). The second part requires the Administrator to propose criteria to be used when considering the application of sanctions on a statewide basis under section 110(m) within 24 months of a section 179(a) fInding. Although not central to the purpose of this rulemaking, EPA presented a detailed discussion of the four elements referred to in the first part of section 110(m) in the proposed rule. The purpose was to explain how sections 110(m) and 179 provisions are interrelated. As shall be evident In the “Response to Comments” section. the preamble language discussing those four elements was the basis for numerous comments. The criteria, which are the basis of this action, seemed 10 generate significantly lower comments. HI. Development of Criteria The second sentence of section 110(m) requires the Agency to establish criteria that EPA must apply if the Agency considers applying sanctions under section 110(m) one statewide basis with In 24 months of a section 179(a) finding. These criteria should enable EPA to determine when a political subdivision, 5 rather than the ‘In § 52.30(aXI), EPA defines the term political subdivision as” • the representative body that Is responsible for adopting endlor implementing air entire State, is principally responsible [ or a section 179(a) deflciency. Whore the political subdivision is principally responsible, EPA may not impose sanctions on a statewide basis. The EPA recognizes that an understanding of (ho term “principal responsibility” was integral to the development of the criteria. l’lso preamble to the proposed rule contains a detailed discussion on how a political subdivision may be held “principally responsible” fore section 179(a) failure when the EPA recognizes that the States have primary responsibility for meeting the requirements of (ho Act (see 57 FR 44535—36). The EPA believes that the criteria promulgated today will clearly indicate when the political subdivision carries the principal burden of carrying out an activity. The EPA is promulgating five criteria (summarized below) that it believes will enable a determination of when’n Slate has relinquished its primary control over an activity to a political subdivision and the political subdivision has failed to perform that required activity. The EPA believes that the political subdivision is principally responsible when the political subdivision: 1. Has the legal authority to perform the required activity; 2. Has traditionally performed, or has been delegated the responsibility to perform. the required activity; 3. Has received, where appropriate. adequate funding or authority to obtain funding from (ho State to perform the required activity; 4. Hasagreed to perform (and has not revoked that agreement) or is required to accept responsibility for performing the required activity: and 5. Has failod to perform the required activity. If one or more political subdivisions each meet all five of the criteria, EPA will consider those subdivisions principally responsible, and EPA may un pose sanctions only on those political subdivisions and on other areas (short of the entire State) for which the Agency determines reasonable and appropriate. The EPA would not impose sanctions statewide. However, if all of the criteria have not been met by at least one political subdivision, EPA will use its discretion to determine whether to apply sanctions on a statewide basis. pollution controls for one, or any combination of one or more of the following: city. town, borough. county, parish, district, or any other geographical subdivision created by. or pursuant to. Federal or State law. This will include any agency designated under section 174.42 U S.C.. section 7504. by the State to cari y out the air planning responsibilities under part 0.” These five criteria are intended lobe applicable to SEP failures relating to stationary, area, and mobile sources. The EPA believes that the criteria developed here will enable it to successfully determino when a political subdivision is principally responsible for a deficiency. IV. Limits of ‘I’hig Rulemaking Nothing in the Act precludes EPA from applying sanctions pursuatit 10 section 110(m), without examining the criteria. ii the Agency ele ts to impose a sanction on a less-than-statewide basis or where EPA imposes statewide sanctions more titan 24 months after a finding. Furthermore, this rulemaking does not affect the situation where each of a group of political subdivisions. whose combined area comprises the entire State, suffer a deficiency. The EPA could impose a sanction on each of those political subdivisions as an independent area without applying the criteria, even though this may appear to be a statewide sanction. All decisions to impose section 110(m) sanctions will be made on a case-by-case basis, and will be subject to notice’and.comment rulemaking. This rule is not intended to identify which sanction EPA will apply in a particular circumstance, nor the type of deficiency for which EPA might use its discretion to apply sanctions. Furthermore, it is not intended to describe the notice and comment procedures EPA will ultimately use to impose a sanction pursuant to sect ion 110(m). V. Response to Comments The EPA received comments from 15 sources including business associations, and Federal, State and local govornment entities. The following section providos a summary of the responses to major comments. A Tire EPA’s interpretation of the Statutory flequirentents of Section I iO(nr) Under this category. the commenters expressed concern with respect to the timing of sanctions and the application of sanctions beyond a nonattainment area. Although, as stated before, these issues are not central to the criteria being promulgated. EPA has responded to these comments below. 1. Imposition of Sanctions Earlier TItan 18 Months Comment. l’he Illinois EPA (IEPA) and the Virginia Department of Transportation (DOT) believe section 110(m) does not give EPA the authority to impose sanctions earlier than 18 ------- Federal Register 1 Vol. 59, No. 7 I Tuesday. January 11, 1994 / Rules and Regulations 1479 months after a finding under section 179. These commonters believe it is incorrect to impose any sanctions during the 18-month period immediately following a finding because section 179 clearly states that EPA may not impose sanct ions if the deficiency Is corrected within 18 months. The IEPA believes Congress Included this 18-month period in recognition of the magnitude of the State’s responsibilities under the Act as well as the limo involved in the legislative and rulemaking processes. Also, the Illinois DOT states that because section 179 is the more detailed sanctions provision, under established principles of statutory construction and interpretation, it must prevail over section 110(m). The IEPA suggests that if EPA determined to impose sanctions earlier than the 18-month period specified in section 179. EPA should develop 5l)u(;iIic: criteria for when these early sanctions will be imposed, and provide notice and opportunity for potentially affected parties to comment prior to Imposing sanctions. The IEPA also indicates that those criteria are necessary to avoid placing industries that are located in States that meet deadlines In a timely manner at a competitive disadvantage. Response. Section 110(m) provides that the Administrutor ‘ may apply any of the sanctions listed in section 179(b) (at any time or at any tirno after) the Administrator makes a finding. “ under section 179(a). ibis language plainly authorizes sanctiuns without regard to a waiting period after a finding is made. The EPA believes that section 179 is phrased to require sanctions after 18 months not, as the commonters say, to prohibit sanctions before 18 months. Section 179 states “for any hnpleinunt.ation plan or plan revisi4n required under this part (or required in re ponsu to a finding of substantial Ina(loquacy as described in section I W(kft5)), ii the Administrator linakes a findangi, unless such doficiwu.y has boon corrected within 18 months after the finding ‘one of the sanctions referred to in subparagraph (b) shall apply. ‘This provision intindatorily imposes sanctions at 18 months if the deficiency lies not been corrected, but does not prohibit sanctions earlier. Because i.oct ion 179 does not prohibit the earlier application of sanctions, it does not conflict with suction 110(m). which provides that sanctions may be imposed earlier than 18 months. Therefore, there is not a statutory construction issue of whether section 179 needs to prevail over section 110(m). Regarding the request by the IEPA that EPA develop specific criteria for when an early sanction wilL be imposed, the EPA does not believe such criteria are statutorily required; however, since EPA will provide the public with an opportunity to comment on any sanction action under section 110(m) through notice-and-comment rulemaking prior to imposition of the sanctions, the public will have the opportunity to comment on EPA’s rationale for the application of sanctions earlier than 16-months following the finding. Although EPA does not intend to develop specific criteria, Section A(4) of this preamble provides further discussion on application of sanctions earlior than 18-months following a finding. As to IEPA’s concern about competitive disadvantage, imposition of sanctions under section 110(m) should benefit sources located in those areas that make timely submittal of plans and plan revisions. Rather than delaying sanctions until 18 months after a finding, under section 110(m) sanctions may be applied much earlier than,18 months. ilieroforo, delinquent areas may be burdened much sooner than the 18-month period under section 179. Imposition of section 110(m) sanctions should inhibit any advantage achieved through delayed submittal of required plans and revisions. 2. Application of Sanctions Beyond Nonattainment Areas Commont Five commonters believe highway sanctions should not be imposed outside of a nonattainment area. The Texas DOT, New York DOT, Illinois’ DOT and IEPA are concerned that EPA has not extended the nonattainment limitations of section 179 (a) and (b) to the imposition of sanctions under section 110(m). These commentors indicate that sanctions should apply only to nonattaininent areas. The Virginia DOT believes that suction 1i0(iiij sanctions should not extend beyond a nonattainmnent area, except in extreme cases (such as where lack of good faith exists) and after a 24-month correction period has passed. The New York DOT and IEPA believe that EPA’s position regarding the geographic applicability of offset and highway sanctions is Inconsistent, and that the reasoning that is applied to make the offset sanction applicable to a specific area should benefit the highway sanction as well. The IEPA feels that section 110(m) refers to the section 179(b) sanctions without exempting the Administrator from complying with the geographic limitations specified In section 1 79(b). - The illinois DOT comments that section 110(m) allows EPA to sanction an area less than a whole nonattainment area if a unit of local government is really to blame. The New York and Illinois DOT also state that since the statute is clear and understandable on its face, no reference to legislative history is required or allowed. The Illinois DOT believes that section 110(m) should be viewed in conjunction with section 179(b)(i), and if Congress had not meant to limit the use of highway funding sanctions to nonattainment areas, it would not have placed that limitation in section 179(b). The Illinois DOT comments that Congressman Anderson had prefaced his remarks as expressing the intent o 1 only four members of the House Public Works and Transportation Committee. The commenter noted that in May 1990 the House Energy and Commerce Committee sent out a version of the Amendments with no limit in section 179 (h) on the area for sanctions (see H. Rap. No. 140. 101st Cong., 2d Sess., Part 1). The House Public Works Committee responded with a report of Its own at that time amending section 110(m) and repeating almost the same words quoted by EPA in the proposed rulemaking. Congressman Anderson’s words may have been on the point then, but they did not agree with the language of section 179(b) the way it was finally passed by Congress. Also, the Illinois DOT cites the House Conference Committee Report which accompanied the final version of the Act as evidence that sanctions are to be limited to nonattainment areas (H. Rep. No. 952, 101st Cong.. 2d Sess. 335—6; Cong. Rec. H1310 1, 13197; Oct. 26, 1990; 1990 U.S. Code Cong. & Adm. News 3385, 3867—8 (Discussing tmposition of sanctions” in an area that falls to prepare or implement a plan to attain air quality standards. fle ponse. To address the concerns of all five comnmentors. EPA believes that section 110(m) and section 179, although interrelated, do set up two distinct sanctions processes. In general, section 179 provides for mandatory sanctions with respect to failures uneer part D (in general, the nonaltainmont area provisions). As provided in the proposed rule, section 179 focuses on nonattainment areas in several respects (see 57 FR 44536—37). First, the general in)roductory language of section 179(a) provides that sanctions must be imposed for a failure with respect to * any implementation plan or plan revision required under this ------- 1480 Federal Register I Vol. 59. No. 7 I Tuesday. January 11, i o4 I Rules and Regulations * “ Tho provision is referring part D of title I, (lie portion of the Act ding with nonattainment area luirements. While some part D requirements may also apply to attainment areas in Iinhitc(l .iruiinstances, the primary focus of part I) is nonat(ainiiient areas. Second. the’ highway sanction language expressly limits the application of sanctions under sm.tion 179(o) to nonottainineni areas. Finally. the offset sanction requires new or modified sources in complying with the requirements of section 173 to increase their offsets to 2:1. Typically. only sources in nonattainnient areas need to comply with section 173 and. therefore, in most instances (lie offset sanction will only affect sources in nonotlainment areas. For the above reasons, EPA believes that section 179(n) does not require statewide imposition of sanctions. On the other hand. section 110(m) clearly provides for the imposition of sanctions beyond nonottainment areas. The express language of section 110(m) provides that the Administrator may impose sanctions on” • any portion of the State the Administrator determines reasonable and _.oppropriate. “ Ueyond that. :tion 110(m) provides for the ;crctioiiary imposition of sanctions for inding that an area has failed to meet any requirement with respect to any ‘plan or plan item” under the Act. Such requirements could apply to nonattainment, attainment, or unclassified areas. Although section 110(m) refers to the sanctions established in section 179(b). there is no language stating that the geographical limitations in section 179 override section 1 10(mis express authorization for sanctions on any part of the State that EPA determines reasonable and appropriate. Section 110(m) refers only to the sanctions themselves, not the accompanying limitations. For the above reasons, EPA believes that section 110(m) does establish Its own geographic scope. The Virginia DOT suggests that EPA should limit application of section 110(m) sanctions beyond the nonottainment area to circumstances where there is a lock of good faith. While EPA may take good faith into consideration in determining the geographic scope of section 110(m) sanctions. EPA does not agree that it should establish lack of good faith as a prerequisite for imposition of section _1 10(m) sanctions beyond the iottalnment area. Vith respect to the comment of nois DOT that EPA can sanction less than on entire nonattainment area, the Agency agrees that under section I 10(n l)’s broad grant of authority for (lie imposition of discretionary sanctions, EPA may select an area smaller than (lie nonottainment area. The IEPA cutnmnwits that EPA is treating the geographic limitations of the highway and offset sanctions dilferwitly and that EPA should s y that highway SHIR.tiolls are also liiiiik’d in s oi n. ‘Ilto El’A disagrees. First, we believe that both sanctions may be imposed Ofi ally portion of the Slate. However, by its method of applical ion, the offset sanction will emily have effect in those areas that must apply (lie emission offset requirements of section 173. Therefore, the offset sanction would have no effect in certain areas. The highway sanction is not self-limiting; therefore, it will have a broader effect. Second, the EPA did not rely Oil legislative history to override statutory language, hut rather to support statutory language that grants EPA discretion to apply sa.:ctions to other than nonattainment areas. The Illinois DOT bases its argument that the legislative history does not support the imposition of sanctions beyond the nonattainmnent area on an assumption that section 110(m) does not provide an independent grant of authority to impose sanctioi s. However, the Act does provide two separate grants of sanction authority with different. geograpjiic scopes; this is supported by the language of the Act, as described above, and by the legislative authority. The language from H. ConE. Rep. No. 101—952 that references the imposition of sanctions on on area that fails to attain (lie air quality standard appears to refer to the imposition of sanctions under section 179 because it discusses the required imposition of sanctions. The language cited by EPA in the preamble to the proposed rule addresses a different grant of statutory authority to impose sanctions, namely. that authority under section 110(m). In additIon, Illinois DOT cites Ii. Rep. No. 101—490, which clearly provides that EPA may impose sanctions beyond nonattainment areas by stating that EPA a •isempoweredtoapply sanctions to any portion of a State.” Time committee goes on to clarify how it believes EPA should use this broad grant of authority, indicating that EPA should impose sanctions on the governmental entity that is “primarily responsible.” and noting that a State legislature’s failure to adopt an inspectionlmaintenance program is a circumstance where statewide sanctions are appropriate. 3. Section 110(m) Docs Not Estahli 5ll Independent Authority to Sand ion comiiicnr. The Virginia DOT bclie ’es section 179 is the basis for im losiIlg smi tions H 1 1(1 is hot u’ persodei I l ’ section 11(1(1 ,,) Furthiernmore, tlui Virgiuuin I )t)1 uouiuui,’nts that c m” tiotu 1 10(m) exi lamiulS mm scct ion I7 by m u:qii i ri ill; that au mu hI it tonal i ii iii iI’! 11111 6- llUi!llhI gracn lieriwl must be lisi i v .’d nrtr.r the initial 18-month period (i e . 24 muiwitlis) before samictions may be impose(l n a statewide basis where a political Sul K 1 ivision is principally responsible for the deficiency. The City of Chicago comments that EPA’s proposed imposition of statewide sanctions under section 110(m) as an altemajive to section 179 would vitiate section 179. Once EPA determines none of the political subdivisions meet the criteria, and tilus the entire State is principally respotlsihlo for a section 179(n) deficiency, EPA is bound by tIme Tequiroments of section 179. Rm’spoiise. ‘rile EPA agrees that sanctions cannot be imposed stalowide within the first 24 months following a finding where a political subdivision is found principally responsible for the deficiency. However, EPA disagrees that section 179 provides the solo authority for inlposing sanctions and, In doing so. allows for the imposition of statewide sanctions. As discussed in the responsu to Comment 2 above, section 179 does not refer to the imposition of statewide sanctions and, in fact, focuses on the imposition of sanctions In nonattainment areas. In fact, tile EPA believes the reference to statewide sanctions under section 110(m) makes it clear thet section 110(m) establishes a different authority to sanction States and that statewide sanctions are not required under section 179. Section 110(m) provides that statewide sanctions shall not ho applied within 24 months of the time a finding is made if a political subdivision is principally responsible for the doficiency; this provision means that statewide sanctions may be imposed earlier than 24 months if no political subdivision is found principally responsible. If section 179 required statewide sanctions after 18 months, it would be contrary to the section 110(m) provision that sanctions shall not apply within the 24 months following the finding if a political subdivision is principally responsible for the deficiency. Therefore, EPA believes that its ability to impose statewide sanctions during the 24- month period following a finding is based on a determination under section 110(m) that a political subdivision is not ------- Federal Register I Vol. 59, No. 7 / Tuesday, January 11, 1994 I Rules and Regulations 1481 principally responsible for the deficiency. Suction 110(m) does not vitiate section 179 because section 179 sanctions are not statowidu but are imposed on the spe.ific area for which thu deficicacy arises, in most instances iunuitlaiiinluilt areas As state l pni iuiisl y. set:tlnn I Yfi ,naii&Ldos that ;iou.tItiiis ho iinpo uil lii months dl i i i a finding is made. Whale the imposition of sanctions earlier under section 11(1(m) could remove the need to impose sanctions under section 179 sanctions in that area, section 179 has continued force and effect in areas where section 110(m) sanctions are not imposed. The EPA does not believe that imposition of sanctions under section 110(m) conflicts with section 179 sanctions. Application of sanctions earlier than 18 months is not inconsistent because EPA believes the purpose of section 179 was to ensure that EPA did not delay sanctions beyond the periods proscribed in that action. 4. Regulatory Limitation on Early Imposition of Sanctions Comment. The United States Department of Transportation (U.S. DOT) recommends adding a statement to the rule that EPA expects to impose sanctions on a statewide basis earlier than 18 months only In limited circumstances, after notice-and- comment rulemaking. Response. This statement was not in the proposed rule and EPA believes it should not be included in the final rule. The EPA stated in the preamble to the proposed rule that It would only apply sanctions eariy in “unusual circumstances where the State has indicated explicit resistance to working to resolve a plan deficiency” (see 57 FR 44534). The final rule revises this preamble language because EPA believes the term “unusual circumstances” provides little guidance as to when EPA intended to use its discretionary sanction authority. While EPA does not intend to use the section 110(m) authority in all situations where a finding is made, the Agency needs to ascertain that it has the floxibility to use this option when necessary. In order to develop some plans or plan items, States must perform certain steps that EPA can track to determine whether the State will meet deadlines In the Act. When a State believes that EPA can impose sanctions only after a deadline is missed and 18 mouths have goiiu by. then there is little incentive for the Slate to take the necessary actions to complete authorization end implementation of politically-difficult rules and regulations. The EPA needs to maintain its flexibility to respond rapidly to situations whore it appears a State will not moot a deadline, and to assure the State that it does not, in fact, have an extbnded grace period for nomu:mnpliauace. The certainty and swiftness of imposition of tho Act’s los BrU i Ii ical to tiniuly toiiiplut lou of the SiP’s. consequently. the revised language, clarifies EPA’s position concerning when discretionary sanctions may be appropriate while retaining EPA’s flexibility to use such sanctions to ensure compliance with the Act. Thus, EPA will exercise section 110(m) sanctions earlier than 18 months only in cases where: 1. The State has indicated an explicit resistance to resolving a plan or program deficiency or to making a requiredplan or program submittal; or 2. Where special circumstances, - particular program needs, or time constraints dictate the need for use of such sanctions. Thus, the rule retains the Administrator’s discretion to apply sanctions at any time after a finding ia - made; however, EPA will provide potlc and opportunity for comment on the basis for all section 110(m) actions. B. EPA Discretion to Del ennine the “Reasonable and Appropriate” Area for Imposition of Sanctions 1. Comment. The City of Chicago believes the discretion in § 52.30(d)— that ii the criteria are met EPA may Impose sanctions on a less than statewide basis to the area It determines is reasonable and appropriate—was not ,r Congress’ intent In enacting section 110(m). The City of Chicago believes EPA’s only discretion is whether to apply sanctions to political subdivisions that meet the criteria. Thus, the City of Chicago believes EPA has no basis to apply sanctions when the criteria are not met (i.e., to apply sanctions to political subdivisions that were thought to be principally responsible, but did not meet the criteria, an4 to any other surrounding political subdivisions EPA determines is reasonable and appropriate) and that to apply sanctions to these areas is arbitrary and capricious. Response. Section 110(m) states that sanctions may be applied to any portion of the State the Administrator determines reasonable and appropriate, with one exception. If one or more political subdivisions are principally responsible for the deficiency, sanctions may not be applied statewide. Therefore, if the criteria are met, i.e., a political subdivision is principally responsible, then EPA may not impose sanctions on a statewide basis. However, if no political subdivision is principally responsible, the text of section 110(m) expressly authorizes EPA to move forward and impose sanctions an a statewide basis. The EPA would make a determination, however, concerning what area of the State for which sanctions would he reasonable and appropriate. Furthermore, EPA is not required to establish criteria to determine the area of the State for which it is reasonable and appropriate to apply sanctions under section 110(m). 2. Comment. Four commenters, New York DOT, the Orange County Transportation Authority (OCTA), the City of Chicago, and the U.S. DOT, requested clarification of how EPA will determine the “reasonable and appropriate” area to apply sanctions. The City of Chicago and the U.S. DOT assert that the statute requires su h clarification. The New York DOT believes that the lack of adequate guidance on what area is “reasonable and appropriate” will create confusion - and continual uncertainty on the part of States as well as Federal agencies. The New York DOT suggests that the prime consideration should be whether a good faith effort has been made to bring the nonattalnment area Into compliance. The New York DOT believes that if this Issue Is not addressed in this rulemaking, it should be the subject of another rulemaking. The OCT/i cites the example of California, which consistsof several regional authorities, which, in turn, each consist of several local jurisdictions. The OCTA is concerned about how EPA would Impose sanctions in the case where a regional authority contains several Local jurisdictions and where a local authority failed to do everything mandated by a regional plan. The commenter believes it would be more reasonable and appropriate to apply sanctions to the single local jurisdiction, not the regional authority. In addition to assuring that the State does not suffer sanctions if one political subdivision Is principally responsible for the deficiency, the commentor suggests that EPA assure that regions within a State would not be subject to sanctions if one or more local Jurisdictions is/are principally responsible for the deficiency. The U.S. DOT comments that in situations where a nonàttainment area contains multiple political subdivisions, none of which are principally responsible according to the five criteria, the rule must clarify how EPA will determine whether to apply sanctions to the specific responsible ------- 1482 Federal Register I Vol. 59,No . 7 / Tuesday, January 11, 1994 I Rules and Regulations political subdivision(s) rather than the entire nonattainmont area. The City of Chicago and U.S. DOT assort thai the statutory mandate to promulgate criteria is not limited to the determination of principal responsibility. These commenters argue that EPA must also develop criteria to determine when the imposition of sanctions would be reasonable and appropriate, and the criteria should be sufficient to put potentially affected political subdivisions on notice of the activities or agreements which may put them at risk of sanctions. Response. SectIon 110(m) specifically provides that EPA may impose sanctions on any part of the State that EPA deems is reasonable and appropriate. Section 110(m) then requires that EPA “ establish criteria for exercising (this) authority a a a to ensure that I a a such sanctions are not applied on 8 statewide basis where one or more political subdivisions covered by the applicable implementation plan are principally responsible for such deficiency.” The EPA believes this language strictly limits the required development of criteria to those necessary to determine if a political subdivision is principally responsible for the deficiency. There is no requirement that the criteria must guide EPA’s further decision of which area is ‘reasonable and appropriate” for the imposition of sanctions. At this time. EPA does not have experience with Imposing these sanctions and, therefore, does not want to constrain the Agency in the exercise of this discretion. The variety of circunisthnces would make it difficult to develop criteria that would be applicable in every instance. As to the comments of the City of Chicago and the U.S. DOT that EPA needs to establish criteria for when it will impose sanctions under section 110(m), EPA does not beliçve that such criteria are mandated. The public will have an opportunity to comment on EPA’s determination of the area on which it will Impose sanctions and the timing of sanctions during each specific section 110(m) rulemaking action. C. Selection and Design of Criteria Under this category, the commenters focused their particular concerns on the sanction criteria. 1. Comment. The OCTEt suggests that the rule clarify that all five criteria are to be met, not merely used, by EPA to determine if a subdivision is principally responsible for the deficiency. The OCTEt suggosts the following language; “Criteria. The EPA will use the following five criteria, all of which must be met, to determine whether a political subdivision is principally responsible for the deficiency.” Response. The EPA agrees with this comment but determined that language other than that suggested would be clearer. Therefore, EPA has revised § 52.30(d)(1) to read as follows: “For the purposes of this action, EPA will consider a political subdivision to he principally responsible for limo deficiency on which a section 179(n) finding is based, if all five of the following criteria are met.” 2. Comment. The Now York DOT comments that the necessity for all five criteria to be met is overly strict and biased toward imposition of sanctions statewide, and it may be difficult to establish that all five have been met. Therefore, the New York DOT suggests that only a majority (three out of five) be met. Response. The EPA believes a lJive criteria are needed to determine whether a political subdivision is principally responsible. The EPA sees no compelling reason to weaken this requirement. In addition, the failure to determine that one or more areas are principally responsible does not presuppose the imposition of statewide sanctions: the EPA must determine that the area sanctioned is the reasonable and appropriate area. 3. Comment. The U.S. DOT requests clarification of what State actions are necessary to provide adequate legal authority under time proposed Criterion 1. Criterion I states that the Stato must provide adequate legal authority to a political subdivision to perform the required activity. Response. The EPA does not bçlievo that there is a single distinct definition of the term “legal authority.” What constitutes adequate legal authority may vary from State to State. This should be handled on a cnse.by.caso basis. 4. Coinnment. The Now York IXYI ’ comments that under the proposed Criterion 2 l 52.30(c)(2)j, there must be a very clear agreement in the SIP or some other document as to which functions are to be performed by which agencies. For example, functions traditionally performed by local agencies may not be performed that way under the intermodal Surface Transportation Efficiency Act (ISTEA). Response. The EPA agrees with the commenter and encourages States to develop clear agreements as to which functions are being performed by which agencies. Note in particular that section 174 of the Act requires States to jointly review and update, as necessary, their planning procedures that woro in effect before the Act was amended in 1990 or to develop new procedures as appropriate. In preparing such procedures. State end local eleued officials must dotormino which elements of a revised SIP will ho developed, adopted, and imnplenmentwl by the State. and which elements will be carried out by local or regional entities. The EPA has provided guidance on this and other section 174 requirements in a document entitled “1992 ‘l’ransporlntion and Air Quality Planning Guidoliumes” (July 1992. EPA 4201R—92—O01). The EPA will work with the State and the political subdivision to ascertain if this criterion has been met. In addition, any comments raised as to this issue during tIme rulemaking process on a specific sect!pn 110(m) action will be properly considered by EPA. 5. Comment. Concerning Criterion 4 I 52.30(cJ(4)I, the U.S. DOT also comments there should be a prbvision included to provide against “State failure.” If a local agency cancels aim agroement to perform a certain functiom , it might leave the State without the time or resources to peujonn the function. Thus, the State, instoad of the local agency, would become principally responsible. Time U.S. DOT believes it would be inappropriate to apply statewide sanctions In such a case. Response. If the local agency cancels its agreement to perform a function. EPA would take this into consideration when determining whether the political subdivision is principally rospumisilila iii causing time deficioncy. Moreover. Ibis factor may be considered in determumiumiuig the area to which it is reasonable and appropriate to apply sanctions. The EPA can consider all factors In determining what area is reasonable and appropriate. 6. comment. The Massachusetts DOl believes the rule should contain a specific provision for State consultation in determining principal responsibility because many factors such as regional demographic trends, changing local traffic patterns, amid land-use decisions in adjoining areas have a larger impact on emissions than institutional arrangements for air quality planning. The proposed criteria may be the best way to evaluate whether the State or time political subdivision is solely responsiblo for time emissions requirements, but it may not bo relevant in targeting the actual source of the problem or in defining solutions. Response. To the extent it determines appropriate, EPA will consult with the State when evaluating the criteria under section 110(m). In any event, tim Stato will havo ndcquato opportunity to raise aimy such omicurmis in time conmument period following the notice of proposed ------- - Federal Register / Vol. 59. No;- ? I Tuesday, January ‘ -ii; 1994 1’ RUlo s’ii d Regülat1on “‘1483 rulemaking for imposition of section 110(m) sanctions. D. Other Relevant Comments 1. Comment. The State of Vermont comments that it is the only State in attainment with the ozone national ambient air quality standards and also located within the Northeast Ozone Transport Region. Vermont requests clarification in the rule of whether attainment status or Inclusion in the ozone transport region (OTR) is the deciding factor with respect to applicability of these rules. Response. Neither attainment status nor inclusion in the OTR Is the deciding factor. Under suction 110(m). EPA may impose sanctions on a statewide basis or on any area of the State deemed roasolml)lo and appropriato l)asod on the failure of the State or a political gubdivision of the State to meet a requirement of the Act with respect to a plan or plan element. If a requirement is applicable to a political subdivision of the State, Ei’A will determine whether that political subdivision was principally responsible for the failure, using the criteria established in this rulemaking. The EPA’s ability to use the section 1Iti(m) sanctions is not limited to nonattainment areas or areas that must meet the title I, part D nonattaiiinient requirements. 2. Conimciil. The City of Chicago comments that the term “required activity” contravenes the definition of required activity in section 179 and permits EPA to sanction ontitios without providing ally prior notice that EPA considers a particular action to be sanctionablo. The City of Chicago also comments that since section 110(m) inc.orporatus section 179(a). EPA is not permitted to create a second, conflicting definition. Ftii tliermore, the proposed deli ni tioii h Ii ’S uiot identify covered , t iv it ins. miii ii tines m it give ulit ii mus P °” ulutu u of baulctl000blu activities? Finally, the City of Chicago is Loncorned about (lie ambiguity of the defluition and that it may moan EPA is expanding tho definition from section 17 9(u). Response. Section 179(a) does not define ruqiiirod activity. Rather, EPA believes this introductory phrase under soc.tioii 179(a) refers to submittals required under part D of thu Act. Thu four general categories of activities listed in section 179(a) are the four possil)lo typos of State failure with respect to the required activilios under part D. The typus of failure are not synonymous with required activities undor the introductory language of section 179(a). Finally, the City of Chicago contends that the definition of “required activity” is too opon.ended because of the language “may include, but Is not limited to.” The EPA interprets the term “required activity” for purposes of section 110(m) in a manner similar to that for section 179(a); however, EPA recognizes that for section 110(m), “requIred activity” refers to any plan or plan item requirement under the Act, not just those required under part D. Finally, EPA agrees that the language “may include, but is not limited to” may provide broader authority than that granted under section 110(m). Therefore. EPA has changed the definition in the final rule to provide: “The term ‘required activity’ refers to the submission of a plan or plan item or the implementation of a plan or plan item under the Clean Air Act.” 3. Conunent. The OCI’A and the U.S. DOT request clarification of the term “political subdivision.” Both commenters appear concerned about whether EPA in making a determination of “principal responsibility” may’ consider less than (ho entire nonattainmant area. The OCTA notes that California has several regional authorities that each are composed of numerous local jurisdictions. These local jurisdictions often have the responsibility for “adopting and implementing air pollution controls.” Response. The definition of”political subdivision” set forth in § 52.30(a)(1) - includes all types of governmental entities, including local jurisdictions. The EPA could sanction less than an entire nonattainment area based on a determination that a local jurisdiction was principally responsible for the deficiency on which the sanction is based 4. Corn :pent. The OCTA comments that the proposed rule should include a definition of “plan item.” The OCFA notes that sw.Iiwi 1 lt)(mn) roads iii part in relation to any plan or plan item (as that term IS defined by the Administrator), a a a” The OCTA cites the example of the California SIP, which is partially composed of regional plans. Some regional plans require local jurisdictions to take certain actions, which to the ommuntor appear to be plan items. Response As discussed earlier, to make this clearer, EPA replaces the phrase “adequate SIP or SIP element” under § 52.30(iI)(2) with the phrase “plan or plan item.” Although EPA intorpreted the phrase “adequate SIP or SIP element” to essentially mean the same as the phrase “plan or plan item,” this roplacement is more consistent with the language of section 110(m) which refers to “plan or plan Item.” “Plan and plan item” are also defined under § 52.30(a)(4). E. Comments on Policy Stated In Preamble to Proposed Rule 1. Choice of Sanctions Comment. The Texas DOT, the Chemical Manufacturers Association (CMA), and the Northwest Indiana Regional Planning Commission (N!RPC) asked EPA to Ideptify which sanction will be applied for various types of SIP deficiencies. These commenters all state that the sanction should be tied to the underlying deficiency. For example, the commenters state that highway sanctions should only be applied when there is a SIP deficiency relative to mobile sources and the offset sanction where the deficiency Is relative to stationary sources. The CMA recommends adding extra language to the rule as follows: “The EPA will assess the nature of the deficiencies and take this into account when determining which sanction to apply.” The NIRPC further asserts that only those projects which have the potential for increasing emissions should be targeted; withholding highway funds which may correct a problem is inappropriate. Response. The type of sanction to be applied and the selection procedure are not part of this rulemaking. Sanction determinations will be made on a case-s by.case basis. The EPA will go through notice.and-comment rulemaking on selection and imposition of sanctions under section 110(m). The notice will propose for comment which sanctions or sanction wlli be applied. in addition, the Ad sets forth those projects exempted from the highway funding restrictions. The EPA will act consistently with the requirements of the Act In imposing the highway Itimiding restrictions. 2. Iinpac.t of Rule on Title 23 Funds Comment. The American Public Transit Association is concerned about how EPA’s sanction determination process could affect the process and procedures of transferring flexible funds (i.e., certain title 23 program funds) fm -em highway to transit purposes. The Southeastern Pennsylvania Transportation Authority requests clarification of how any imposed restrictions on highway funds would affect funds previously flexed to transit as provided for in the ISTEA. Response. This rulemaking Is not intended to address how the highway sanctions will be implemented. The EPA is in the process of developing procedures with the U.S. DOT to ------- 1484 Federal_Register/Vol. 59, No. 7 I Tuesday, January 11, 1994 / Rules and Regulations provide for the coordinated iniplcinontaiion of the highway sanction. The EPA and the U.S. DOT will develop procedures consistent with the specifications in section 170(b). 3. Authority to Sanction For Failure to Implement Comment. The Massachusetts DOT comments that EPA’s authority to sanction a State il” a a a requirement clan approved plan is not being implemented is too broad, given the large number of agencies, regulatory authorities, and group interests which can prevent a planned project from being implemented.” Instead, a State’s eood faith effort to implement an approved project should be identified as an exception to this policy. Response. The types of findings that may lead to the imposition of sanctions are specified in the Act; they are not being developed by this rulemaking. Therefore, once a finding of failure to implement a plan has been made, section 179(a) requires that (he 18- month mandatory sanctions clock begins. Furthermore, any finding made under section 179(a) provides EPA with discretion to impose sanctions under section 110(m). 4. Clarification of Offset Sanction Comment. The Massachusetts DOT requests clarification of the requirement for a 2:1 emissions reduction from existing sources to offset emissions from major new facilities. The Massachusetts DOT believes it is not reasonable to require reductions from existing. older or congested facilities before major new improvements are made. Response. The procedure by which facilities offset emissions is noL the subject of this rulemaking. Those issues must be resolved in regulations adopted by the State pursuant to the requirements of section 173. VI. Miscellaneous A. Relationship to Permit Progmm The Act includes specific sanctions provisions for permitting requirements in section 502(d) and (i), 42 U.S.C., 7661a(d) and (i). The section 110(m) sanctions procedure does not apply with respect to findings regarding permit program failures. B. Exccutive Order 12866 Under Executive Order 12866, (58 FR 51735, October 4, 1993) the Agency must determine whether the regulatory action is “significant” and Lhereloro subject to 0MB review and the requirements of the Executive Order. The Order defines “significant regulatory action’ as one that is likely to result iii a nile thai iiiav: (1) Have an annual effect on the ec.onomy of $100 million or more or adversely affuict in a material way the economy. producii vity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees. or loan programs or the rights and obligations of recipients thoreof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles sot forth in the Executive Order. Pursuant to the terms of Executive Order 12866,0MB has notified EPA that this action is a “signifitant regulatory action” within the meaning of the Executive Order. For this mason, this action was submitted to 0MB for review. Changes made in response to 0MB suggestions or recommendations will be documented in the public record. G. Regu!otoiy Flexibility Act Pursuant to the provisions of 5 U.S.C 605(b), the Administrator hereby certifies that tho attached rule will not have a significant economic impact on a substantial number of small entities. Since the rule requires EPA to consider criteria before applying sanctions on a statewide basis, it potentially could result in a reduced burden on small entities. D. Paperwork Reduction Act This proposed rule does not contain any information collection requirements subject to review by 0MB under the Paperwork Reduction Act of 1980. 44 U.S.C. 3501, et seq. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Oione. Carbon monoxide, Nitrogen oxides, Sulfur dioxide, PM—la, Sanctions. Dated December 29. 1993 Carol M. Browner, Administrator. 40 CFR part 52 is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATiONS PLANS 1. The authority citation for part 52 continues to read as follo ’s: Aulhoriiy: 42 U S.C 740 l—7671q 2. I ’arl 52 is ninemled by adding a iiew § 52 3(1 to suilqmrt A to tu’a(l as fullot ’s’ § 52.30 Criteria for limiting application of sanctions under section 1 tO(nij of the Clean Air Act on a statewide basis. (a) I .)i2fiuI.tions For the purpose of this sodion: I) ‘lime term “political subdivision” refers to the representative body that is responsible for adopting and/or implementing air pollution controls for one, or any combination of one or more of the following: city, town, borough, county. parish, district, or any other geographical subdivision created by. or pursuant to, Federal or State law. This will include any agency designated pnder section 174.42 USC. 7504. by the Slate to carry out the air planning responsibilities under part D. (2) The term “required activity” means the submission ole plan or plan item, or the implementation of a plan or plan item. (3) The term “deficiency” means the failure to perfonn n required e.tivity as defined in paragrnph (a)(2) of ib is sect ion. (4) For purposes of § 52.30. the terms “plan” or “plan item” mean an implemnentetion plan or portion olan implementation plan or action needed to prepare such plan required by the Clean Air Act, as amended in 1000, or in response to a SIP call issued pursuant to section 110(k)(5)of the Act, (b) Sanctions During the 24 months after a findirg, determination, or disapproval under section 179(n) of the Clean Air Act is mado, EPA wilt not impose sanctions under section 110(m) of the Act en a statewide basis if the Administrator finds that one or more political subdivisions of the State are principally responsible for the deficiency on which the finding, disapproval, or determination as provided under section 179(a)(1) through (4) is based. (c) Griteria. For the purposes of this provision, EPA will consider a political subdivision to be principally responsible for the deficiency on which a section 179(a) finding is based, if all five of the following criteria are met. (1) The State has provided auieqnate legal authority to a political suludivisiomi to perform the required activity. (2) ‘Ike require(l activity is une which has traditionally been performed by the local political subdivision, or tim responsibility for performing t lie required activity has been delegated to the political subdivision. (3) ‘The State has provided adequate Funding or authority to obtain funding (when funding is necessary to carry out ------- Federal Register I Vol. 59, No. 7 / Tuesday, January 11. 1994/Rules and Regulations 1485 the required activity) to the political subdivision to perform the required activity. (4) Thu political subdivision has iq n,iiil to imrloriii (and luis not revoked lhiit agiuuiiient). or is required by State law to u(:cupt responsibility for performing, the required activity. (5) The political subdivision has failed to perform the required activity. (d) Imposition of sanctions. (I) If all of the Criteria in paragraph (ci of this section have been met through the action or ina(.tion of ono political subdivision, EPA will not impose sanctions on a statewide basis. (2) If not all of the criteria In paragraph (c) of this section have been mel through (lie action or inaction of Gnu political subdivision, EPA will determine the area for which it is reasonable and appropriate to apply. sanctions. 1FR Dec. 94—551 Filed 1—10—94; 8.45 anil SILUNG CODE 6 5 10-60-P 40 CFR Part 52 (ND4—1-6670 , UTS—I-5842; FRL-4823-eJ Clean Air Act Approval and Promulgation of Title V, Section 507, Small Business Stationary Source Technical and Environmental Compliance Assistance Programs for the States of North Dakota and Utah AGENCY: Environmental Protection Agency (EPA). AC11ON: Final rulemaking. SUMMARY: On August 25, 1993 EPA published the notices of proposed ruloma king to approve the Stale Implementation Plan (SIP) revisions submitted by the States of North Dakota and Utah for the purpose of establishing a Small Business Stationary Source Technical and Environmental Compliance Assistance Program (PROGRAM) in each State. The implementation plans were submitted by the States to satisfy the Federal mandate, found in section 507 of the Clean Air Act (CAA). to ensure that small businesses have access to the technical assistance and regulatory information necessary to comply with the AA. The rationale for the approval was sot forth in thu proposals. NI) coiuhiieuils were received pursuant to these proposed actions. Therefore, EPA is proceeding with its approval of the revisions to the North Dakota and Utah SIPs for establishing a PROGRAM In each State. EFFECTIVE DATE: This rule will become effective on February 10.1994. ADDRESSES: Copies of the documents relevant to this action are available for public inspection dining normal t)usiness hours at: Air Programs Branch. Envlrounwiital Protection Agency, Region VIII 990 18th Street, Suite 500, Denver, Colorado 80202—2405. FOR FURTHER INFORMATION CONTACT: Laura Farris, Mail Code—8ART-AP, USEPA Region VIII. 999 18th Street. Suite 500. Denver, Colorado 80202— 2405, (303) 294—7539. SUPPLEMENTARY INFORMATION: I. Background of Revisions Implementation of the provisions of the Clean Air Act (CAA), as amended in 1990. will require regulation of many small businesses so that areas may attain and maintain (lie National ambient air quality standards (NAAQS) and reduce the emission of air toxics. Small businesses frequently lack the technical expertise and financial resources necessary to evaluate such regulations and to determine the appropriate mechanisms for compliance. In anticipation of the impact of these requirements on small businesses, the CA.A requires that States adopt a Small Business Stationary Source Technical and Environmental Compliance Assistance Program (PROGRAM), and submit this PROGRAM as a revision to the federally approved SIP. In addition, the CAA directs the Environmental Protection Agency (EPA) to oversee these small business assistance programs and report to Congress on their Implementation. The requirements for establishing a PROGRAM are set out In section 507 of title V of the CAA. In February 1992, EPA Issued Guidelines for the Implemeqtotion of section 507 of the 1990 Clean Air Act Amendments, in order to delineate the Federal and State roles In meeting the new statutory provisions and as a tool to provide further guidance to the States on submitting acceptable SIP revisions. The States of North Dakota and Utah submitted SIP revisions to EPA in order to satisfy the requirements of section 507 of the CAA. In order to gain full approval, the State’s submittals must provide for each of the following PROGRAM elements: (1) The establishment of a Small Business Assistance Program (SBAP) to provide technical and compliance assistance to small businesses required by section 507(a); (2) The establishment of a State Small Business Ombudsman to represent the interests of small businesses in the regulatory process which is required by section 507(a)(3); and (3) The creation of a Compliance Advisory Panel (CAP) to determine and report on the overall effectiveness of the SBAP required by section 507(e). II. Summary of Submiltals The State of North Dakota has met all of the requirements of section 507 of the CAA by submitting a SIP revision that implements all required PROGRAM elements. N.D.C.C. sections 23—25—02 and 23—25—03 grants the Department the authority to undertake the elements of the PROGRAM. The Governor, through Executive Order 1992—5, established the Small Business Compliance Advisory Panel. The North Dakota State Department of I Icalth and Consolidated Laboratories (the Department) formally adopted the SiP revision on October 23, 1992, which identifies a plan to implement the PROGRAM. This SIP revision Is being added to the North Dakota SIP as section 12. The North Dakota PROGRAM was submitted to EPA by the Governor of North Dakota on November 2, 1992, and was initially reviewed for administrative and technical completeness. In a letter dated December 15. 1992. EPA requested additional Information from the State in order to make a positive determination on the submittal. After receiving the additional information on January 18, 1993, EPA notified the State In a letter dated February 2, 1993, that the submittal was administratively and technically completes The submittal then underwent review by EPA headquarters, and received a concurrence from all reviewers. The State has met the first PROGRAM element by committing in its SIP revision section 12.5 to meet the six requirements set forth in section 507(a)(3J for the Small Business Assistance Program. The State has met the second PROGRAM element by locating the position of the Small Business Ombudsman in the Office of the Chief of the Environmental Health Section effective AprIl 6, 1992, as stated in its SIP revision section 12.3. The State has met the third PROGRAM element through Executive Order 1992— 5 dated May 21, 1992, issued by the Governor of North Dakota, which established a Small Business Compliance Advisory Panel in the State of North Dakota. and by outlining in its SIP revision section 12.4 the functions of the CAP and how the members will be determined, which is consistent with section 507(e). Additionally, the State of North Dakota has established a mechanism for ascertaining the eligibility of a source to receive assistance under the PROGRAM, including an evaluation of a source’s ------- ThuNday) August 41994 EnvlrónméñtàJ Protéctioñ; Agency - 4&CFR Part 52 Clean Air Act Sanctlàns FInalRuI ànd. -• Notice’: — -.. — - — — a ------- 39832 Federal Register I Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regul tions ENVIRONMENTAL PROTEC11ON. B. Coosequeaoesof State Failure . ‘ requirements of the Act. Under section AGENCY . 1. Section 179(a) Scope and Fimilings 179(a) of the Act, for any plan or plan - 2. Section 17 9 (b) Sanctions . . .. revision required under-part D of title I 40 CFR Part 52 3. APPl cat1 ns and Tuning of Section or required in response to a finding of C. Notice of Pro d RuIem t ” - substantial SIP inadequacy under (AD-FRL-5023—3] . . - . --• section llo(k)(5) (42 U.S.C. 7410(k)(5)),2 Selection of Sequence of Mandatory 2. Rationale for Sanction Order - Act sets forth four findings that Sanctions for Findings Made Pursuant 3. Sanction Effectuation EPA can make, which may lead to the to SectIon 179 of the Clean Air Act 4. Opportunity for Comment . - apphcation of one or both of the II. Today’s Action - sanctions specified under section 179(b) AGENCY: Environmental Protection A. Final Action :(42U.S.C. 7509(b)). The four findings Agency (EPA). B. Siimmi.ry of Comments and Responses me (1) A finding under section AcTioN: Final rule. 1. Sanction Sequence and Rationale . iig( j (i ) that a State has failed, for a ___________________________ 2. Sanction Effectuation ‘nonattainniont area, to submit a SIP or su ARV: The EPA is promulgating a 3. Sanction Clock Policy . an element of a SIP, or that a submitted rule governing the order an which the Ol 5! m Rule - SIP or SIP element fails to meet the emctions shall apply under the -. . ‘ ° - . completeness criteria established man Ory san 011$ provision 0 2. Section 52.31(b)—Definitions - - . - . pursuant to section 110(k) (42 U.S.C. Clean Air Act (Act), as amended, after 3. Sectlcm 52.31(c)—Applicehility . 7410(k)); (2) a finding under section EPA makes a finding of failure specific 4. Section 52i1(d —Sanction A licetion ’ 179(aX2) where EPA disapproves a SIP - to any State Implementation plan (SIP) . Sequencing . - suhmls -qion for a nonattainment area. or plan revision required under the 5. Section 52.31(e)—Available ‘ ‘1)S baàed on Its failure to meet one or more Act’s nonatt%lnment area provisions, and Methods for Implenenatieri.. . . pl elemesats required by the Act (3) This final rule provides that the offset a Iinpllcatläns of Todaft Pn1ini Mng a finding under section 179(a)(3) that sanction shall apply in an 18 A. Implementation of theS nciIours . .‘ the State has not made any other months afler the date on which EPA B. Areas Potenuany Subject to Sonctious .: IhmicaiØfl required by the Act -. maIm 5 such a finding wi regard to t A. Executive Order 12890 - (Includ1ng an adequate maIntenaiir area and that the highway sanctions B. Regulatory Flexibility ct . - plan) or has lade any other sitinnindon: shall apply Inihat area B months i , -p ( ( ai . . that fails to meet the COmpIS* -. following application of the offset .2. ( “ents -. . . - or has made a requlred Once thu rule Is-effective,- 3. E iuaa . — - . submuss1on that Is disapproved by EPA nrflons will apply automatically in C. Paperwork Reduction Ad for not meeting the Act’s requirements the sequence prescribed in all instances i - - - - ;•.• (4) a finding under section 179(a)(4) In which sanctions are required;. - - -. . - . that a requirement of an approved plan - following applicable findings that EPA. A. IntrOdUction :- .. is not being Implemented ,. - . has already made or that EPA will -On Octther 1; 1993 EPA prm o d* . - - 1 A makes sectIon 179(a) . • in the future, excent whenEPA.. .# .::.,. &seo)go ai ifindings of failure to submit and determines through a at iatory u aii - ‘findings of Incompletanasa via letters rulemaking to r hange the sanction - - sectioni79(a)142.u.s.a . from EPA Regional Admlni ators to sequencefarioiusermiorejpecthc - ad , State governors or other State officers to- - dEcumstanens..Theipublic will have-an’ - ext mive , whom authority has beendelegated. 4 oppoitunhtytocominent.on any - - of which ii hy Ia marIzedin1b1s:i 0 letter itself tngprs the enflctIOns -. separate rulemaking. - . sectiom because it lw ..: . clock. To make flnwngs of failure to - EFFECTIVE na1 s This action will ‘ .. ,. 01 submit and flndlnp of Incempletaiimn beC0 flSOPt0flib 1994 ’L The onnation net repeated concerns annlar section 179 a)(1) and sedIon...., - ADORESS(ES): The public docket for this’ the overview atpeges 5127 2 ofthL t . 179(a)(3)(A), EPkis not required togo.,, action, A—93-28, is available for public ..proposal provided on the Clean AIvA .tthroiigh notice-and’omment - .. inspection and copying between 8:30:’ Amendments of 1990(1990 . - railarnaking.s For section 179(a)(2) and. - a.m. and 3:30 p.m., Monday through Amendments), title I requirements thon 179(a)(3)(B) finuaugu )f - Friday. at the Air and Radiation Docket the Act, and EPA action on su’s Isapproval. the Federal Register - - and Information Center, Room M—1500, background section uo ume it in wui .u EPA nuns .. Waterside Mall, U.S. EP& 401 M Street, proposal and the rationaie. actIpn disapproving the submittal (after SW, Washington, DC 20460. A. . . . :-- — . . . notice and comment) i ntiates the. reasonable fee may be charged for - . , -B. Consequences of State Fail we ‘ .uwlinns clock. FQr sectioni79(aR4) - cOpying .. - - .-. ‘ - -:., .-1.Secüon179(a)ScopeandFindin ___ FOR fIRmER INFORMATION CONTACT: - The 1990 Amendments revised . : cti iitL5)—lurown ,asa SW or 11”—Ispiade 1 Mr. Qlnstopher Stoneman, Sulfur - . vheuever EPA finds that _ fur any — - j • • Dio,ddelParticulate Matter Programs - . . A ’aubstanttaliy.lnadequate to attain urni i,itat . th,- Branch, Mail Drop 15, Office of Air State failures to comply with . — ed atlonal ambient air quality standard - Quality Planning and Standards, U.S. •fl asso Amendments also rect .- - - ‘Section i79(a refersto findings. dIsappmvalL EPA. Research Triangle Park. North F l is conorri Ing Federal implementation -nnd detennlnatlons. Th se will all be referred to by Carolina 27711. telephone (919) 541— plain (FIFe). Under section 11O(dlll). tim F ilheoiie term “findings.” - — ‘ -. - 0823.. - - guquizunient Is triggered by an EPA flndiu 5 tl ,ta > ‘7-ar.Finding of Failure to Submit a Requited - - - State has failed to make a requited subinittnierthat ’ 3State7niplementatian Plan orAnyOtherRequired- oaai iori: The . a received submittal d0e3 001 satisfy of the/ict. Clean Air Act. Delegations - content of today’s preamble is listed in - completeness criteria established underi lo .; ‘ 1 12/23/91. , -.... .- . — -the following outline:. - - - iiO(k)l1)(AL oran EPA disapproval of a g1!Notlco and c mtnont consijerations vie-a-vie. - - - -. - . submittal in whole c c In past. Howevee.slnce PIP’s- ;I5ndinga of failure to submit and Incompleteness are • - -- I. Background. - .. - - . - - are not the subject of this notito. these provlslons- ’ discussed In the proposal at page 51272. footnote - — A. Introduction -- - - - , - - - are nosaddiassedhere. - - - - - - : -, 7. and in section IV.C. of this document - ------- Federal Register / Vol; 59, No. 149 I Thursday, August 4, 1994 / RuIes and Regulations 39833 - r, 1*aHdtheSthtedoei ierect ih.defidencyLit is. not “ In the proposal at page 51275. for asmp1dly:aposethb Thns, by djate. Instead . sectIon 179(e) ‘. - three EPA propesedlbat. asa applying’the offset sanction at 18 piuvtdee we c iivthon “cto&” winch general matter, the offset sanction appLy men MthnStateccx iects the- -. j riih j th proposal pegs at 18 months followed by the highway defidencypxompthig thifindin pno 51274, Cenerally, nader 179(a) s sanctjon6uw , ths theseefter.First, EPA ., t:i1I iig i n .y sanot&th.sanctiosnr e Iby stated thatow Iu. 1 llytheoffset ‘ n *ia would notapptya d EPA and EPA applim Uths defldenq that” -. sandlenwIll ,in ui J,provide a more other affec dagoncIes nost notably prompted.the$ndii iglsn ot*orrected ontaIn qoa11tybenefit inihe shorter the Depastment of TxanspétnIL -. before Ihsiaw tlon cock exphe& 1The. and loogerterm thanlh&highway ‘‘ ‘. (DaE))wouldnoEbe ltfrIta. . ‘r sanction clock Is further disaissei}m- - senctiou. .: L’ oomparatively npL.mc. 1ad ow section H .3 oft rd’ ”-) -‘- :- - Seonnd ,theinopom lstatedtheoff set - , -. C. M 1PThde,nJ&n sanctionpwvi lss eaterpo1enfiaIforT. -. The EPA, therefore, proposed, as a • .‘. ., - • fl Scadt.fruBhtyP!0t0Cti0fls ‘ general matter, that the m t sondinn 1opmail . - -i ; :‘r ’ - - ‘r i bn 4tpot ntiaIlyaffactsall-? - ..: - apply before thehlghway.fwidieg that - W ‘ sanction folio vlngasection -179(a) —: . the a c t179(b)(2) offset sanction !WhIla ___ • uaatiihameat - .fiuidlng.The EPAiocomdhawever, would applyinneareal8inoIthsfrom- thatin s edficcases the particular the detewben EPAin esa finding - ____an ti.i r io e t • - c cum noosmay1edE A1n- noderw179fp -Fhennore EPA s NOT5I,avhtch conclude that kismozo appiOpthate for ; 9 1 1 ,L .&m a s tic a nd tfew thehighwnv asini4nn to.anplv first r ‘ “ ‘ • - .- ‘ —r na . —4i — - higbwuyiaiidlon would ap )y in on -& Therefme 1 A basspeciflca1Iy noted area 6-months following applic cit of p eamb t on of - that it maygo tnrougn notboo-and- the-offset eancfion.’The EPAproposed sOesa RfrA’ oIi95W ’ comment nhn king for theliighway to sequen the applicatkiniofsanctkms tp #n 7 wfthln sanction to apply after 18 months and- • 4 .,,g L . _______- eo o . Slatm.may an lq at . . / iwttnn UQUCS In w niu w - Zfl nonattalntnent. the Statesman miboiit reutsions w all eesesemt EPA determines. - -.: - their Str.iiy on ni eapifl ri rte.I .lni (The santlonsequence YnhnnalA $ - - throoghindMdualnolice-and -comment apecific put D aanrSS £z thee. urees ( g.. - ferthér dIScusse&iasectiQLflAI. of I nihtmakin&that bighways . - : - this document .) - Iy- __ OQun ctionEffoctuatioa • ihith sanctionashall apply as -. d isaetlonsiy anthartty toapply either eanction - At pages 51 275-51277 of the - ired under section 179(a) with - any time Cm at any time pwpO .l . EPA describes howihe offset led tea Ending made under- - sanction-applies-mid notes-that, under - - - • • - Stancttnontainllmitadons(57FR4453L the highwaysanction.EPA amposesa •IeectIe )proutdes kxawair Sept. 28.119* action of sanctions being -. prckb Uonon ue pwva1 bytho Secretary - peil. —- -- th pplies .togtan the- - ee byiheection. besect apply (a the of IXYF &qertain highwuyprojetsand EpA.m mande,w 4i niO6. If cver.s&me imponIdonci .rtI .by A.und ecUoia - . ‘K jh ,i 1½i - - ft (a sanction provided aectioa i?9(b).. tiO(ee3J ote that ..• grim - US, 0 - y Sai l 0015 - it Is ontone 6 ? the sanctionsthatanromatim y -- ilotmi findings will be made thzougbiiotlce-and- • not dmactly imptemautedbyEPA. apply under . . ,a,..179(e). - - - - - -- - tn.T.— - --&tngiodepevdent bection. lowever, EPA iloted’ that it isinthe flndingsofnonimplementation.the - subsections -(4)sleciflctoany saw tions.doth- Marts when EPAinakes implementation plan or plan revision a finding of nonimplementation in the required underpart Botany - Federal Register through nolile-and- implementation plan or revision - comment rulemaking. Fox-both required under pert Dfound disapprovals and flndingsof substantially inadequatepursuant-to noniniptementation. the-clock actually section iio(k)(5). In general, part I) starts. onihe date the final Federal plans and plan revisions are requiredior Register actiuus are effective. - - areas designated nonattaimnent under section 1O7. Th, proposal did not 2. Sedi”n 1Z9(b Sanctions - - - - encompass Endings EPA t n make Under section 179(b). two sanctions under section 179(a) regarding SIP lIs are available for v.lnrtion by EPA for non-part D plans or plan revisions or followingremlinil 179(a) findIng. 6 One the sancticnprovisions in-section - aailab&Ee IAuiS a zestridiomon -. -. - 110(m) cT-the Ad It also does not highway-funding, as provided tn-section encoanpose any findings EPA may make 179(bXl) ( 42 U.&C.7509(bXl)). which under other 6tIes of the Act (eg.. Is pages - section 502(d) for operetingpermitting 51V3—51274.Th eother available - sat onIsthe.ff sanction-as — - provided 1u . 4 ou 179(b)(2) (42TU.SC. 2 Rat 1A Ice a ider - 7509(b)t2fl. wbfthIs.abodiscuseodIa Mpages 51274-51 VS-If the - the proposal at page 51274. - - - - . : propesal ,EPA desalbedihe pinpose sanctions can serve. Onelunction isto 3. App lisatlon.andTiiningoLSedion -. tliehct’s -. 179(b)S . . ‘ --- -- - :- - requiieanente.Asecoodfw ic t icuoT -: Although-application of-section ‘- -• ew ictio n s4&b posted end preserve air 179 (b)sandio u is.may become quality hi weds until thedeficiency - mandatw,wbeoEPA *1iat a finding: - nrmant e s thansiwtiuiw ..Itht1attee categories 6! stationarTsources and. depending-onthepollutant(s) addressed in the deficiency promptingihe finding. may affect all criteria pollutants (i.e., pollutants for WhIChEPA has promulgated national ambient air quality standards. (NAAQS) such as carbon monoxide (CO), PM-b (particles with an aerodyu-wuic diameter less than ox-equal to-a nominal 10 m u ters), etc.). By wutjnnt , the highway sanction would affect onLy mobilersourcesand pollutants emitted by mobil,sources (Mobile sources-are • not, for-instance, regeecled as significant emitters of lead and su}fer -dio,dde - (SO 2 ).) - Third, in addi lon ioalrquality considerations, the 2-to--I othet sanction is less-complicated teimplement and’ adininisterthan the; highway sanction- by its-very natwennd ecause of the - inanne ,- In-wh lchEPAlutendsto - - effectuate It, as . iff sod1n the - - - - proposa latpages ’ 51275-61277.- -. - - Inadd ltion ’EPknotsdinthe -proposal that ftdeesu iitpead -. sanctionsasaierig4erm solution to air- ounlit - - - - ------- 39834 Federal Register 1 Vol. 59,- No. 149 / Thursday. ‘August 4, 1994 1 Rules and Regulations - process of developing procedures with . - applie4to both types of SIP’s; a - - - - sanction applying first; (2) commenters DOT to provide for the coordinated r.: - discussion of why the latter type of who believe that.EPA should determin( implementation of the highway -. . ‘ SIP’s—commonly known as part D “sIP sanctioxi order on a case-by.case basis sanction. (Sanction effectuation is calls”—are not covered by the final rule (3) commenters who believe that the further discussed in section II.B.2 of this is in section ILC.3. This rule also has the nature of the deficiency should be document.) - immediate effect of applying the offset considered in determining sanction sanction on September 6, i g in - - sequence. and (4) commenters who 4. Opportunity for Comment affected areas for which the . . . -. support the sequence as pronosed.- -• As discussed above, under section Administrator has not determined that t our cominenters stated that the.:.. 179(a). the Act requires that sanctions the 18-month sanction clock has expired sequence in which sanctions apply apply if the deficiency that prompted - by that date and for which the. should be reversed with the highway” EPA’s finding is not corrected within -. deficiency prompting the finding has .. sanction generally applying flt. x’ the timeframes prescribed. The not been corrected by that date. -. .. - - ..- Several of the oommenteis contend that discretion afforded EPA is which of the Specifically, in the notice section of - - the highway sanction will be more two section 179(b) sanctions applies at today’s Federal Register, EPA is’ - ..e’. - effective at compelling State correction” - l8monthsandwhichfimonths . providinga listofareasthatwillbe. .ofSWdefldendesboceueftwould thereafter. The proposal noted that if in’ potentially subject to sanctions gn .. have greater economic impact, and it ‘ i. the future EPA thakes-exceptions to this Seotember 6.1994. t - will be more effective at add sing t rule, then in Individual notice .and-.; ‘ .- f lote that the proposedrule did .. political and statewide failures. One comment rulemafring, EPA will -- include tables in which EPA ln nded to commenter disagrees with EPA’r vi2 ’ comment on whether the highway - .‘ list areas subject to sanctions. In the i-- . rationale that the offset sanction ismore sanction shall apply after 18 months ; finahule, EPA has removed thetebles -- likely to produce a greater air quality’ . and the offset aai ion shall apply 6 from thirule and decided to urovide --: benefit, arguing Initead that thec ’- months thamafter given the Infonnathm on areas that iiif be.i t4 highway sanction b encouziges ditwiistanomat h d.A. . potentially subject to sancttoniln they” early State complianr, I5 y p 4 J The proposal also noted that the’? -: separate notice mentioned abovi .- - - commenters t4 a1k g EPA’s rationale Administrative Procedure Act (APA) -- ..(Sections ILC.5. and IILB. below Include’ that the offset sanction potentially -, provides dHa ma withameans that -. --a discussion of whythe tableswere-. .‘‘ applies to all criteria pollulants the i ’ -- could be used t netition EPA to.’.:: removed from the proposed rule and -. ‘commenter argue that the fact that pronose that the fiighway s nuction ... .‘. why such removal does not carry any . stationary sources emit more.types of” app’y first. The APA, 5.U.&C. 553(e) . ‘ ib s tanfi fince.) -- - ’ , pollutants is Irrelevant since In the - ‘ ‘ - provides that ‘Each egmry (including • Sunimo’ofCnthents’aM. ’ ProDosed rule, the offset sanctlOn. ’. EPA) shall give an Interested person the Responses- - - ,. -. ,. ... applies only to the pollutant(s) In the- ’ right to petition for the Issuance, • - - ; .. .. - - deficiency. The commenters also raLca amendment, or repeal of a rule “This - With one exception, this section an argument that EPA’s proposed . .provjsi ji could conceivably be invoked of a brief sununary of the - sequence unfairly burdens industry by a citizen to petition EPA to propose ‘commentsrecelved on the pronosal and when the SIP deficiency Is Stato-c that the highway sanction apply fi ? -- EPA’S espOflse& A more detai’ed. , and that-sources wifi be unfairly . - with respect toa section 179(a) finding of commants and EPA’s - - penalized due top lo alien and; - covered by tiis action.. , .t - . Sp 5O5 can be found-In the docket In timing. s-. ‘- - . . - , , a document entitled ‘L’ Selectioniof. Four commenters believe thit EPA- fl• ‘ S ftA - ‘ . - -:- -“ Sequence of Mandatory Sanctions for should determine sanction order on a A. Final Action - - - - Findings Made Pursuant to SectIon 179 case-by case basis. These commenters of the Clean Air Act: Detailed Summary express concern that EPA’s streamlined By this document, EPA is of Comments and EPA’S Respothes” - approach provides Insufficient notice of promulgating a rule which provides that (herein referred to as !‘Detailed - snnøions and leaves many sanction, the section 179(b)(2) offset sanction Summary of Comments”), The one - application details unclear. One - shall apply in an area 18 months from - exception is for the sanction dock commenter argues that EPA should the date when EPA makns a finding -- -policy: a detailed summary is provided streamline its own rulemnicing processes under section 179(e) with regard to that here, as well as in the companion rather than deny notice to affected area if the deficiency prompting the d unent, in order to y explain in parties. These commenters were also finding is not corrected within such the Federal Register the changes EPA concerned that general application of - period. The final rule also provides that has made to the final rule in this area the offset sanction would negatively - the section 179(b)(1) highway sanction and because of the comple dty of this impact stationary sources. One - shall apply in an area 6 months - - issue. — - - - - - - .‘ commenter argues economic following application of the offset 1. Sanction Sequence and Ratiânale, competitiveness and air quality will - sanction in cases where the deficiency . - deteriorate under the offset sanction.. has still not been corrected within that a. Surnmazyof Comments. The EPA’s Fwo coinmenters were concerned that period. The section 179(b) sanctions ‘pro ’posal for the sequence of mandatory because of the length of the EPA - shall be sequenced in this manner in all sanctions and the rationale are provided rulemaking process stationary sources cases unless EPA proposes the high iay in sections I.C.1. and LC.2. of this will bear the brunt of the sanction:.. sanction to apply first through separate document, as well as In.the pro iosál at burden. notice-and.comment rulemaking. This pages 51274-5. The EPA received 14 Two oommenters believe that the final rule applies to plan or plan. - comments on this part of the proposed nature of the SIP deficiency should be, revisions required under part U but does rule. Comments on the sanction . considered lndetermining sanction not apply to plans or plan revisions- - — sequence and rationale can generally be sequence. One comnienter believe required under part D found . considered in fdur groups: (1) - the sanction chosen should be lin substantially inadequate pursuant to Commenters who believe the sequence the SIP deficiency and that EPA in section no(k)(s). The proposed rule. should be reversed with the highway conduct notice.and.coinment ------- S Federal Register / Vol. 59, No 149 1 Thursday, August 4. 1994 I Rules and Begulationi rtdemalcingto determinewhether the ghway.enction applies first .as to e flctypesof SIP deficiencies. The corn eris-concerned that stationary souzcesi ill bear &brunt of the auctions burden,and that this result x xLd stifle economic develnpment. ThTeea Inmenters support the_ )roflfl4i sequence-of sanctions. One ommen rsupports theposibon that he link between the.highway sanction nid airquality benefits is uncertain and moth teragreos that the-offset anction provides a quantifiable.aud nore likelyairqualitybeneflt Another anmentermq pomited.EP.As conce s egardüigtI administraUve and . inpleseentation b&dens of the highway andion as a basis for the offset nrti- pplying first.. ‘•. -b. )laspuuw’to Comments. InIhfs flnal rule, A be IIPI taiii d the proposed: o —- wlththeoFset-’ anotioitgeoersflyepplying andthe Iiigbwsysenthonseee &The- esie%es.eqoeniM&’ reppo Ied by4he proposed rationales that’the o et sanction l(cornpssed b-the iighway.andioir)wfll: . .ti Pr ld.ainorecsataã i -and direct mirqveli$yt.-. t, -C ___ (2) P ’b a$i 1Iy at fact more it aia ___ - (3)Beeasterbimplenient.and. Thilniaaotiflie EPA disagrees with the k (nus wihl always.ases iveiyddressS1P -. rehated.d M iw aad should, beinfore. be.generally.appbed first. i : ulooLdoesbehieve ihat the )ffset sandia vhlmoreilikely produce nst ak q a1ityb mAfit4n some.cases, offsat ” tion way-be ffectiv.at ei noies . cvei pIe an uea that s andergoingcigniet nit n, zni rowth, tb,o -on could help bring paessuzeLthzougb .stational!y sources wishingto.expand locate in Lhe aroa snd whL4i are faced wath the need for UL*Mifinnal ennssionoffset mahermere,dfsets schieved by such a sanction would benefit air quality in the affected area. FfOwev In -parPicularinstances,the EPA does-not deny that the-offset sancthmrey not be as effective because, for WLle.the reea may be e c onomn tllTdepres 5ed and i iot experiencing growth. ‘In-such ase. there-may be ! airqnality benefit and perhaps less pressure to correct the deficiency in applying the offset sanction first. Nonetheless, overall EPA continues to éliovethat iinr ptuaUy the offset unction (compared-to the highway sanction) providesa more certain, direct ir quality benefit in The near and long ources arguably applicalioneflhe offaet ’s mr$ionimey j t r cg the more .si uificant soin-conenetributhig to 39835 term andpotentially covers more olItheiofftersanction pollutants. An increased new source to produce a rality beneflL 1 review (NSR) offset ratio necessarily - - than thel iighu ysanctienbecaue.asj; reduces airiollutaiit emissions as sources locateinaunrea, dir sources modify or locate-in an area emission reductions will be achiev 4- under the offset sanction.By contrast, through the 2-to-i offset!ar,patentiilly’- the highway-sanction may not directly any of the aiteria pollutants. - : . reduce overall motorvéhideemissions - With respect to imp ngsanctions n in the nearterni and any-afrquolity -- a case-by-casebasis. EPA believesfhere- benefits zesulthig’from the lngh’way are two main disadvages-tothls’ 2 - sanctionwould be-indirect, as - approach whidhhave iedEPA4orreiect application of thel iighway sanction - it. Fhst . ’the individual notice - nd- 4 would not wily1entIuotoTis* - cominentruleinekings thldbe ka’- ’- from driving.noreven necessarily result needed for implementing the sanc6dñs inverahIeniissions eductions, at best on a case-by-case basis-wouldithpose : in th nit.tenn. The EPA incognims - signiflomt d nikne- thatin some fa ces - Thesereso nldthe b appropriate for theiilghwaysanciionto spent on-actlvflieslhat more dhectlj apply to .add ssapolith l failuieand servethe-gcml-of the htct a y.dean believes there are adeauate merh .nimus air. Second. s-a ts h! ?jnThe provided under the rüIebo address these - final nile w wvd h : it an c -’ . - - . - - - — -- - suffldet-ut1Con1u °*, The PA did ndtl d’t isu egin- - thepraposallhauhie o ’ffsetsandion will - pplçdionm Iw , app’ly.ln eveq áse,’to afl o fle ia - ‘ -. ImpIemonf euiThá ae . pollutants.il ’be offset a* -ictinn will 2 details a e1urthi discussed hf ictIu i?i appl r only to afl dita& ,poThitanliland IRA. and inthe detaøeduunma f their pro orsUorwliich the areals - - comw hi.dü iwuant ’ subjectiothe:ssctfon 173 I4Z US C. 7503) offsatreqnlramant when lhaSlP on- defldency Isgeneralin T 5IIITP When - the sañdion e ai ’- the nR ngic dflc to - -. - appioathfabto áth * - pofl ’kthhefrpecurso4 - impO D considerations-with iesp e4 thran ib n plies onlyto those- - -- ____ousIuc3rIS di onis ’ ‘- poll. nh (az/or precunsods)3. The more likely to yield th- , staternentin the proposal intAn led that quality benefit. The “A%e eves,asa - - ____ matter, thatlhesanctianlhat itemia pollutants. atfhar:becausa of _____ _______ pollutant-specific finAingcorganarnl ‘ n w iiu1t 4 C flndJnej t, dJemaf selectiugtha d sa rn.ibaSeU whether the flnA1qg1s I1iifse .aneci& the LMS 1UWOI C : ________________ deficiency. - - - -- a1 y a &y4t least te th. pollutants of direct amoern, and sometimes to . . ,. - - lua aawelL h&Wul, the approp e myw uL5I Way i . k - sandion-suai uivcn-Cums ces -vr uuW8y. . ’.-’uu.wns poinuusw.y WLOLA nod!the- - .- -; only tlmse-pdllutantsmobdo sow-ens emit a flcntlyandaicLfor kidsei - tmeniuIvJtfWdGso. !P air quality benefits. TheEPMuehiewes — rule-provides TT - - Additionall WA wzu(prelict - - - isedue.nriinnaitv.io,mobile aci’oss all saictlen findiogs, whic a - - --- - sactionwfhIm: .:; ____ State inaction and ’thus-could net-base’ the gsnera ____. _ __ __ . sal on that factor.Fnndmnentaly, A ’has based apphiee.toWiorasn a ttainmentNSR - - puspesesand thus will affect soun s sub t-tot1aiianentNSRthat ‘ greaterair-qusilty benefl is :- - - - ninme aroa,which would the unpacts ince te provide some arr sanctienedand orwhatdurationbe - area underthe offset . than. - - - not known - - - ThereforejPAsn’thnuestobelieve-that m. oes not eJthatlbe -. offset sanction has the potentiahe - ‘hs .-nste tin section LC otthismiti . under . ‘ -. i. . the APLritI -san petition the EPtiir impact 1fl ti 1 , - iuIemaking propone the highway sanction t maybe greater-onnidestry thanan the -epp lyt irn. - transpo rtatiorrsector.’Howevec.by - n?- nw iueo wa , awdn ------- 19836 Federal Register I Vol. 59, No. 149 /_Thursday, August 4, 1994 / Rules and Regulations ncluding the offset sanction in the Act, offset ratio for NOx until EPA grants an ongress clearly intended that certain exemption. ources, by virtue of the timing and (2) Highway Sanction. One - - [ ocation of their projects, would be cominenter requests that the rule nipacted. indude a requirement that EPA notify. several government entities of highway 1. Sanction Effectuation sanctions to focus multi-agency A discussion of EPAs approach for resources n resolving SIP deficiencies. effectuating th offset and highway Another cominenter believes that the ianctions is provided in section LC.3. of flow of flexible funds for certain this document and at pages 51275-7 of programs (e.g., congestion mitigation air the proposal. The following is a brief quality improvement program) should summary of major comments and EPA’s continue to flow if sanctions apply responses. because the funds are important for a. Major Comments. (1) Offset achieving the Act’s goals by improving Sanction. Comments on offset sanction transit. effectuation addressed both the source b. Response to Co’mments. (a) Offset and pollutant applicability aspects of Sanction Applicability. Regarding offset EPA’s proposaL One commenter objects sanction source and pollutant -. - to the timmg of the applicability of the applicability, in the final rule, EPA has offset sanction and believes EPA’s maintained the approaches in the proposed approach is contrary to past proposal. EPA practice. The comnienter argues On soui applicability. EPA believes that applying the increased offset ratio it is important to maxhith’i the air to all sources that have not received a quality benefit of the offset sanction by permit as of the date the sanction begins requiring that sources whose permits are wouldstopmanysourcosduringthe - .. issuedaftqrthedatetheoffsetsanction permitting process for reasons beyond applies comply with a 2-to-I mni ion thóir control The commenter believes, offset requirement. Contrary to the that in the past EPA hasavoided these ..comment, the source applicability -. problems by applying tighter NSR . - definition Is not a departure from all - requirements only where permit . past EPA practices because historically applications were not complete when EPA has not always used the “complete the requirements became effective. The application” definition. (The different commenter recommends EPA continue source applicability definitions EPA has’ with this approach. - -. . used in the past are discussed in the’ • Two c mments conoarn the poIbit nt. detailed response to oomments appllcability.of the offset sanction. One document.) Iherefore, EPA b.lIé Yes that commentercb eds to the application of past practice does not constrain It from tl e ffsetrequirement to both ozone: .• determining today’tbat It Is Important to precursors (nitrogen oxides (NOx) and . & nh nc thó effectiveness of the offset- volatile organic compounds (VOC)) even sanction by n1ng source when the deficiency relates only to one applicability on apernut Issuance basis. of the pollutants. In support, the: - - Môreová, EPA believes that once the copimenter notes the broad nature of ,- offset sanction applies, It would be a section 179 and the manner in which - ,violation of the sanction fo a permit to NOx emissions are treated under the Act be Issued with an Pmi.Qon offset of less vis-a-visVOC emissions. Regarding PM— - than 2 o.1. -The plain latiguaga oI..:.- 10 precursors, the commenter argues. . - section 179(a) and section 179(b)(2) that the offset sanction should apply to . does not provide for nor contemplate precursors only in those areas where-- . any grace period besed.on whether a -; EPA has approved a PM-b SIP control - - source has submitted a complete strategy imposing the offset ’requirement applicationP . on PM—b precursors. . - . ., .. ... - Regarding pollutant applicability of Another commenter believes that . the offset sanction, EPA believes the regardless of the SIP deficiency the - - proposed applicability Is reasonably offset sanction should apply to all supported andwill have the potential to criteria pollutants and precursors. In - effectively protect air quality. Section - - support, the commenter argues that - 179(b)(2) generally zeferencea the offset section 179 references section 173, requirements of section 173 and does which applies to all offset requirements- not restrict EPA’s ability to base the in title I of the Act, and that this reflects applicability of the sanction on a -. a clear Congressional intent to apply the pollutant or pollutants (and its/their offset sanction to these pollutants. The precursor(s)). Moreover, pollutant- àommenter also believes that areas that specific application of the offset - ‘ have not yet received a section 182(f) sanction is consistent with the.. - (42 U.S.C. 7511a(f)) NOx exemption - - requirements of section 179. Section from the section 173 offset requirements - 179(b)(2)’s language providing that “the should remain subject to the increased ratio of eniissipn reductions to iiu?eased emissions shall be at least 2 to 1” iS general enough such that EPA can determine the most reasonable method, to apply the sanction. While section - -179(b)(2) references the broader section 173 requirement, EPA believes it is more reasonable, with one caveat,’ 0 to apply the offset sanction to the criteria pollutants specifically related to the SIP deficiency in question. Pollutant- specific application of the offset - sanction will encourage the State to. correct its SIP deficiencies and will provide reductions in emissions of the relevant pollutant in the interim, without tinnecessarily pimkhing stationary sources in cases where the State’s program for other pollutants is adequate. . - Regarding ozone and PM—i0 precursors, EPA is maintaining the approach In the proposal that the sanction applies to and PM—b -- - precursors. The caveat to that general rule has expanded In one minor respect with respect to the ozone precursor. NOx. As provided in the proposed rule.- sources will need to achieve the increased Offset ratIo for VOC and NO, when the finding concerns anozone. requrement unless EPA approve section 182(f) demonstration tha Act’s NO* nonattainment NSR ‘ — requirements should not apply. in addition; EPA has added the exception- that if the area otherwise Is not subject - to the section 173 offset requirement lot- - ñonattalnment areas) then soürom in that area wouldnot be subjeot to that- re4ulremant under the oibet sanction (see sections-182(f) a d 182(b)(2)) This,.. exception is neces eiy In light of the-’ specific language of the offset provision, which ties, the offset sandlo iw -‘ specifically to offsets required ânder section 173. For PM-lU precursors, EPA has retained the caveat for cases in 1r which EPA hasmadeasection 1.89(e) ‘ (42 U.S.C. 7513a(e)) determination for’ an area that PM—b precursors are’not’ significant. ‘ .— -.,•:. (2) HghwajSanctionEffectuation. The issues raised by the commenters are not a subject of this rulesnnkng. The DOT has primary responsibility for - - - implementing the highway sanction and EPA is coordinating with DOT on the development of procedures for that purpose. - -‘ - - ‘°Where the SIP deficiency is geaetal, sanction applies to the thteria poUutact therprecunor(s)rwhichthearais i meet the sectIon 173 NSRrsqulrnnent& (ThIS pollutant applicability definition gunesal SIP deficiencies is also discussed in section ILC.5 below) - - - - - ------- Federal Register I Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules and Regulations 39837 r. Sanction Clock Policy implementing the approved plan or part a. Summw’y of Proposal. In the of a plan. proposal. EPA described its proposed b. Summary of Comments. Two policy with respect to the sanctions coinmenters raise both practical and lock at pages 51272—51273.” Under legal issues With respect to the hat interpretation, once the sanctions proposal’s sanction clock policy where lock has started upon EPA making a it indicates that EPA must hilly approve inding under section 179(a). in order to SIP submittals before sanctions clocks top the clock, EPA must determine that that are started by disapprovals can be he State has corrected the deficiency stopped. hat prompted the finding. Similarly, to The first commenter’s practical emove section 179(b) sanctions applied concern Is time. With respect to a inder section 179(a), EPA must sanctions clock started by a disapproval, letermine that the State has come into because of the length of the State’s ompliance by correcting the deficiency regulatory development, approval and hat prompted the finding that resulted adoption processes end EPA’s review ii the application of one or both period, the interpretation in the unctions. . j)1’Oj)OS d rule could result in sanctions ForafindingthataStatehasfailedto . bo I nifaStetehadfulIy rnbmit a SIP or an element of a SIP, or adopted and submitted the corrective hat the SIP or SIP element submitted rule. Sanctions would remain In effect rails to meet the completeness criteria of-.. until EPA finished Its rulemnkfng iection 110(k), the’proposal provided’ approving the corrected rule. l ’be hat EPA will stop the c nctions dock commontw Is concerned that the rule r remove any s”nct ons auplied upon could have an adverse Impact solely EPA’s determination that a 10 State has because EPA had not had time to act on rubmitted the missing plan or plan SIP rei lsIons that are fully approvable. alement and that the submittal meets . The commAnter further believes that the completeness criteria established EPA’s policy Is not suppor ed by the pursuant to section 110(k)(1). Note that language of the Act. lite commenter-. EPA’s July 9. 1992 SIP processing argues that the Act elsewhere explicitly. guidance indicated that if the 18-month (Iimjflg% shØ5 between correcting the.. ianctlon clock elapses during a (liflci and EPA’s process of rompleteness review, sanctions would approving a SIP. Section 11O(c)(1)(B) iiot be hnposed unless and until EPA - g ta that the MmIn(strator must determined the plan tobe incomplete.’ 2 promi lgñte Federal Implementation lii, such a case, the 18-month dock . plan (EIP) within two years of SIP - would continue to run so that If EPA . . u*- the stato: . . - determined the olan to be incomplete -- correctith def ciency, and the after 18-months)iad elapsed, sanctiofl Administrator approves the plan or plan would Immediately mmlv. - - - • • • “ SectIon 179(a), though. The proposal provi 6that if EPA merely provides that srinlliona shall.. disapproves a SIP submission based on apply “ unless such deficiency has been its failure to meet one or more pbm - • •,- “ and doesnot Include elements zequired by. the Act, to correct p g y jj g EPA plan approvaL the defidency for urposes of stopping The commenter believes that EPA .. - the sanctions cloc or removing the sanction, the State must submit a - cannot Ignore the difference betwien sections 110 and 179 because to do so revised SIP to EPA and EPA must would constitute “reading out” or ”;. - approve that submittal pursuant to - _____ section ,110(k). For a finding that a - .. - rendering meaningless the additional - - requirement of an approved plan is not phrase of section 11O(c)(1)(B).-. r ’ being implemented, the proposal .. To support its legal argument, the provided that the sanctions clock wouid cnmmenter states that principles of ‘ stop or sanctions would be rernoi(ed - jtatutory construction provide that through noticé-and.conunent . ftffect must be given to each word in a rulemaking determining that the State is hu1tory provision, and that every effort must be made to avoid an interpretation which renders other provisions of the - “For general guidance on EPA s.lntorpcetation.at the tim. ofp posal.ofhówth. ClOck same statute lnrnnaintent, manningless, functions and what Is neensaiy tosthp ft. see the or superfluous (Boise Cascade Corp. v. memorandum entitled Processing of State United States Environmental Protection Implementation Plan (SIP) SubmittaW ’ from John Calcagni to Air Division Directors. Iteglons i-x. July Agency. 942 •F.Zd 1427,1432(9th Ci i.-- 9.1992. A copy al this memorandum 1991)). The commenter also notes that placed In the docket icr this rulemaking, an agency cannot ignore or “read out” “The policy also provided that, following part of a statute (Natural Resowves findings of nonsubntjttal and in pleleness . - Defense Council v. United States - - - sanctions which had applied would continue to apply upon Slate submittal until the submittal - - Environmental Protection Agency. 822 determined to be complete. - F.2d 104, 113 (D.C. Cii’. 1987)): As an alternative to EPA’s proposal. - the commenter recommends that the sanctions clock policy for disapproval follow the process in the proposal for findings of nonsubmittal and - incompleteness. The commenter states that under that alternative policy the clock would be stopped if a new submittal is received, pending EPA’s determination of whether the deficiency has been corrected. The commenter - urges EPA to adopt a consistent policy to stop sanction clocks in all cases upon receiving a revised SIP submittaL IF - EPA’s preliminary review indicates the deficiency has been corrected, then the clock would remain stopped and EPA would proceed to approve the plan through rulemaking. If the deficiency was not corrected initially, the clock would restart via a letter to the State. A second commenter raised similar concerns with EPA’s proposal that actual approval was needed to stop a sanctions dock started by a disapproval. According to the commenter, the dock should be suspended with the submittal to EPA of a completed riilmnaklng and. remain suspended unless EPA: disapproves the SIP. The commenier -- notes that EPAhasthe opportunity to participate in the State’s rulennafring-. processtoensurathedeficiencyls corected. •:. • -. - :: c. Response to Comments. In response to the comments received, EPA . ;. . reevaluated its proposed sanction clock policyandma etwothanges.’3 ’ .’ (1) Overview of Cluanga One. For the - reasons stated in subsection (4) ofthla ’. section ILB:3.c., EPA does not adopt the . exact approach set forthby the-.. commenters, which would actually stop. a sanctions clock.started by a -. disapproval upon State submitta’ of a SIP. However, EPA has determined that it is reasonable totemporarily defer . . - and/or stay the application of sanctions, - as appropriate,’ 4 following SIP.. - disapprovals, where EPA proposes to hilly approve a SIP revision or proposes to conditionally approve a SIP.’ In “The EPA Is also m I,I!a clatificadonts the- sanction clock policy which Is db”. .ed in section ll ,C.4.- . ,... i ..•‘.. “Asdiscussed bi ow under change two, the proposed sanction clock policy specifically provided for the defarial of sanctions during completeness reviews of SIP’s submitted following’ nonsubinittal and incompleteness flodk s. but net staying the sanctions. The concept set forth here for Initial disapprorals end fl wlIngs of failure to - implement is carried forth from this process -. developed in the proposal fti Initial findings of failure to submit or of Incompleteness, In currying - this concapt over. EPA believes that it is logical and necessary that If the effect of sanction application” is tobe deferred that sanctions actually applied shou ldbestayed. r . ” , - -- “Note that a proposed paillalor limitea approval, ‘would not result In the,defezral and/or staying of ‘; cantievad ------- 39838 Federal-Register t VoL. 59; No 149 tThursday ,August 4, 1994 1 Rules and Regulations the preposedruleat page 51273 - iootnote9j where EPA indicated that if the sanction clock started by a finding of failure to submit or Incompleteness expires h1TingaomnpIeteness review for a subsequent SIP submittal, the sanction would not apply unless and - until EPA found the submittal incompletL In this Instance. EPA intended that the anwHp clock would not temporarily stop but instead would continue to run. During that time. EPA would simply defer the application of the sanction while it reviewed the SIP submittal to determine whether or not I The EPA’s -a Jannditka } approval wouht m&ely can unis. an stayer def l Ini’ by EPA’s pcup.sedmndfflonal approval and EPAs simultansoas bs ,rfm final detenithisUon th deficiency baa bena -coire e L -. -- -- the State had corrected-the defidency prompting the finding. Thus, ii and when EPA found the SiP incomplete after expiration of the 18-month dock. the sanction would apply on the date EPA found the plan incomplate ° After further analysis of this aspect of the sanction clock policy in the context of addressing commnnts , EPA has determined that it is inappropriate to defer and/or stay sanctions when sanction clocks elapse during review for completeness of plans submitted by States following findings of nonsubanittal and incompleteness.. Therefore, EPA’ s rule provides that the temporary deferral and staying of the application of sanctions occursonly - when EPA. takes an affirmative action in which it th. Agency’s belief that the State has corrected the • deficiency prompting the finding te.g., - that the State has ouftected the finding ofnoasutsnittai arfrwinarpleteness .The EPA believes this rhnngu . 1sne . ’naus ’ csnre , upon fluztherzeflectiou EPA - realizes that In such. situation there. has been no prforafflrmative action by EPA prelimmnarilyorfinally - - -determfn i ngthattheSta t ehu,fn fact, corrected the deflthncy A proposed approval of. revised SIP following a disapproval ciwactitutes such an actlo as does a proposed finding that a Stati is implementing Its SW following. finding of nnnhnplemsutation. - • However. mere EPA receipt of a SIP submittal from a State following. ngvtenhmittal or fncanpleteâess finding does not constitute such an iction, since EPA takes noafflnnativ.adfou preliminaril ’ fndlouthrgthat the State has submitted i complete SIP and there - isnothfngtogfverisetoanlntethuflna l - dretinatiOrt that the Stat ha& ‘. s,.- corrected thedefidency’. Under this thnnge, sanctions Will apply if a sanction clock expizesduring a completenessrevfewofáSlP submitted fbllowin è iioiisnbmfttal or Incompleteness finding. An example illustrates the implications of this change. Suppose EPA finds that a State failed to submita SIP and thenatmonth. - l7theStatesubmitsaSlPwhichthe, - . Agency then starts reviewing for - completeness. Month 18 arrives and - EPA is still reviewing the submittaL.- Under the approach in the proposal, application of the offset sanction at month lB would be deferred unless and until EPA found the plan incomplete Under the final rule, the sanction ‘ apply at month 18 and only be lift “Ntwthasthfa ricaspecPorth. 1 .. 1 . ....n sanaicn clock polky waa not actuaflysafl edIa the regulatoty longea e bf the prop wd rulebiat was discussed in thepreamble only. - - - - - addition, EPA has determined that such Interim final determination that the deferral and/or staying of sanction deficiency bad been corroded would be 4pplication is reasonable following rescinded or reversed. - flnding at noniinplementation” where For initial flnding of EPA proposes to find that a State is noniinplemeutadon. sanctions would be implementing its SIP. Simultaneous deferred and/or stayed unless and until with such proposed approval or finding EPA reversed its proposed finding that of SIP implementation. EPA will issue the State was implementing its SIP by a separate, interim final determination proposing to find or finally finding that that the State has corrected the - the State was not implementing its SIP deficiency that prompted the finding or by withdrawing its proposed finding that started the sanctions clock. In that Lbs State was implementing its SIP. - these cases , whether sanctions are -At the point of that subsequent action, - defirred and/or stayed depends on the the interim final detirmination that the timing of EPA’s proposed action vis-.-- - State had corrected the deficiency - vis the çi i 00 clocks., . , would be rescinded or reversed. - For initial SIP disapprovals where (Exactly how the application of EPA subsequently fully approves the - sanctions would be deferred and/or revised SIP, oanrtionswouklbe stayed following SIP disapprovals and deferred and/or stayed unlmc* and until nonimplenientation finsihigais EPA’, proposed full approval was disnissed in greater detail below in this reversed by a proposed disapproval or section. ( lienge one is reflected in the final disapproval of the revised SIPin rule in 552.31 (dX2L (dX3L and (dK4).) • whole or in put At that point, thó - - The rationale for the defèningand - interim final dot 1 vn ....Hs w , staying of sanctions in is deficiency had been ãoarected would be that the proposed full or smiAitfonal - resanded or reversed . For initial sir-- apProval orproposed flndingthat the disapprovals where EPA subsequently State Is implernenthig its SIP would be proposes to êlondltionally approve the thebasis fovEPA’s Interim final i ed SIP, i -ti wa be - determination that the Stats hal - - deferred and/orstayed nileasazutunifi OjirudsUl the deficiency.” When EPA- EPA reverses its proposed ainditionair issues this proposal, the A 5 eMcy approval by a proposed disappuvJ or indicates that ft believes It Is more likely final disapproval of the revised SIP In than not that the State is complying - whole or in part. For Initial S W - with the relevant requirements of the • disapprovaIswher EPA q g y Act The EPA bsllevre it would be • conditionally apprqves the s vioadSIP inequitable for sanctions to apply in in final. annsnierrs would be defined - sduatlcns where EPA hal mad. such an md/or stayed unless and until the ‘• • a ithe finding. even though it Is -. condit icna lapp rova lco nverts tea ‘ - Only prelianinary . Moreoem EPA - - s disapproval, orEPA proposes to— ‘• believes it iMbeim toepp!y disapprove La whole cnn pert the - -smrction,mer* because the clock bad revised Sip the State fafflfl BA 1 JIIndbeIOIe EPA Is able to tak, final - the commitment n its conditionally— ctIOfl on the submittal In these -- -;.-approved sw ° Where any ofnihes. si 1ons ven th. length of the - - events oocur with respect to a proposed - -, seconddiangetothesulecomtcernsthe _____ - - . - euidaocedlarnqnad in the oreambleto jlz. application d ..—iIL _ . b.u.. .mth Iç ’ - - - diaippronl& IPeraft.c onoIpertIaInrá - - li t - UI IW JI ilUU W UUCU WW • Implementation Plan (SIP) Subniittals”frcmlohir - Cakagni to Air- isSo Dhectora, Regions P-X, July 51992.) - - - - - - - - “Although the cnansnento Focused one clock - Vastedbya d .p ,. . .’ ...L EPA bnsextsnded Ito - changes-toadock stoted bye finding of Whiz. to- inaplement. Boding nozemon to treat findings of Wluzeto implement di rentfy. -- - “On July. 9, 1992, EPA fuuedapolfcy that Included a of hoe , nou4jtInTh taDDcOVa1s - “.- Plan (SIPI Su ” ’ &omJohnC fragnito Air Divisl a Dfresors.Rcgjonsl-X. July 9.1992) Dai note that. by thI acdon. EPA law lthdrawlngth. pest ot the july is9Zguldanan that addresans how m&a l approvals nonvert to disapprovals. Is- the uoa - future. EPA intends to Issue addftionalguidancu to - address this aspect of the coiulitioual approval policy. .- - --- - - ------- Federal Register I Vol. 59, No. 149 I Thursday,_August 4, 1994 I Rules and_Regulations 39839 o EPA takes affirmative action (3) Scenarios Ulustrating First Change. finding the plan complete. The following five scenarios illustrateS For EPA to continue with the how sanctions can be deferred and/or proposed policy of deferring sanctions stayed following SIP disapprovals and following nonsubmittal and noniinplementation findings. 22 They are incompleteness findings, EPA would provided to clarify change one have to view mere receipt of a submittal discussed above, (Section IJ].A. from the State as a preliminary discusses how the States and the public correction of the deficiency. However, will be kept informed of the status of EPA’s view is that receipt of a State p ) sanction a lication.) does not constitute an affirmative EPA First, if, fore month 18, EPA determination that the revised SIP is proposes to fully or conditionally corn p ete.ne Therefore, it is approve a plan or proposes to find that inappropriate to defer and/or stay a State is implementing its SIP and that saiictions following nonsubmittal and action is reversed 24 or more months incompleteness findings. lurtliermore, after the findins. at which tinie.the 18- once EPA has affirmatively determined month clock has expired, application of the plan Is complete, any sanctions the offset sanction is deferred until clock or any applied sanctions would be EPA’s proposed approval or proposed permanently stopped. Therefore, it is that the State is implementing inappropriate to defer or stay sanctions, its SIP is reversed. 23 For both tyises of following nonsubmittal and Offset sanction applies on incompleteness findings until EPA has the date EPA reverses its preliminnry affirmatively determined the plan finding. Following disapprovals, where complete. 2 ’ The EPA beli . EPA proposed to lly approve the SW . change. as well as change one, makes- _____ Ncte that In tb. five cases di.r. a..,,4 below In. the Agency’s approach in deferring and g j p , .j t - .. staying the application of sanctions would apply errespply when corn (lanai ore consistent with the requirements ap toa ppreval Just U th ydO the Act. . -. when a proposed full approval Is reversed tea - diiSPr...,.... Note also thai, unlike full approve1. _________ a the mandatory sanctions promsa would not orase •A,guably. EPA could make an Inlerlsñ’Rnal upon final arnd1tlonal provaL Following a uetarminatlon that the Slate’s sulanittal is complete. ppro Lai l dIcat above. UEPA proposes suth.n interim determination Is P °” 1 of the Slate’s revised plan, resulting Impractical and Inappropriate for at least._ In the feeral andlor staying of sanction reasons. One, the short time period provided under appl ‘eand thin takes final, full approval the Act for EPA to make completeness the - I Iory n’ik , determInatIons (I.e.. 60 days) indicate that Congress lk .. If the acanado were one where EPA was did not Intend for EPA (no, contemplate For EPA) . conditionally approving the plan. thdfin l th make preliminary completeness determinations, conditional approval does not stop the manalaffi,y Two, the nature of the completeness review does : sanction proc.becauae It done not relnesent net land Itself to EPA making preliminary and final” EPA’s final determination that thi SIP Is adequate. determinations. The completeness review Is - The EPA will make that deter, , .b..ik.. when It - Intended asa straightforward exercise to determine reviews the revIsed the State r . n,nit.t 0 iLthe SIP revision Indudes the enbinittingas part C the con approval. warrant further review for overall adequacy. .. Ultimately, of course. If the State to Its commitment and EPA approves the S .s plan Therefore..there Is no room fore preliminary’.’ -. revision. then any sanction clocks are l i ei detenninatlom any review sufficient to make such stopped and no sanctions are applied or reapp a pralinilnary determination would be sufficient for that EPA p p EPA’s final completeness determination. - - 21 A clarification Is being made In the final approval prior tote months and that EPA’. positive finding Is reversed after 24 months. In that Inslanca. which was not specifically addressed In the - after 24 months, only the ia-month dock has proposed rule. Following nonsubinlttal and . expired (and not the a-month dock) because thes. lntx,mpletenes , findings, the final rule effectively month clock Is not triggered until the offset provides that sanction docks can be stopped (and sanction applies. (Section lILA. below discusses. sanctions lifted) only when EPA makes an how the sectIon 79 sanctIon clocks function.) affirmative completeness finding, and not when Therefore, In this sconarlo. the a-month dock does - SW’sbeconscon iplete by operation of law not start until EPA reverses its positive finding after pursuant to section iiO(k)(1IW) of the Ant. This 24 months. The neat paragraph and Figure 1 give change is Further discussed in section ILC.4. below, an example of how this fniwi3t the reversal would be either a proposed or final disapproval in whole or in part, whichever occurs. Following disapprovals. where EPA proposes to or finally conditionally approves the SIP. the reversal would occur as described in subsection (1) above of this section I1.B.3.c. Following findings of nonimpleinentation. the reversal would be either a proposed or final finding. whichever occurs, that the State was not implementing its SIP. For both disapprovals and noniinplementation findings, the highway sanction applies 6 months from the date the offset sanction applies, unless EPA determines within that period that the State corrected the deficiency prompting the finding. (This scenario is provided for in the rule in § 52.31 (d)(2)(i), (d)(3)(i), and (d)(4)(i).) The following discussion and Figure I provide en example of how this’ process functions with respect to a sanctions dock started by an initial disapproval. The process would function in the same manner where the initial finding was a finding of failure to implement Suppose EPA Issues a SIP disapproval, initiating the section 179” sanction process. Suppose that the State submitsarevisedSlPtoEPAwhich EPA proposes to ly or conditionally ‘approve, prior to 18 months from the date the sanctions dock started. The EPA would simultaneously issue.an interim final rulermfiklng a finding that the State has corrected the deficiency. In, that case, the application of the offset sanction would be’deferred. Now suppose that, at month 25. EPA reverses its preliminary determination. The -reversal would be a proposal to - disapprove the SIP in whole or in part or a final disapproval of the SIP in - whole or in part. At month 25 (or. for final actions, on the action’s effective date), the offset sanction applies. The highway sanction then applies 6 months -later at month 31 (or, for final actions, shortly thereafter, as appropriate). if Within that period EPA has not - determined that the State has corrected the deficiency. - - - ------- 39840 Federal Register F Var. 59, No 149 1’ Thursday, August 4, 1994 F Rules andRegurations Figure 1: I Case 1 for SIP Disapprovals S. I WUD coca iei . At. month 25 - (or shortly thereafter toUoving final actianal. offset sanction. applies Per disapproval. -, Stat. i hoita rewired SW to EPA-. • prior to month i ‘I , 4.. -’ At month 31; highway sanction 1 . applies (or shortly thereaftex following final acttonal. imleea EPA dstzahisa-. State corrected. deficienCy’ Prior to month 10. EPA. proposer to fully, or - conditionally . - approve SW and make. lnten’j final doterminak.ion ,def.ioiency corrected . . — ‘ 1E- nth semotlom . .cloch expires and• app1i -tii n. of. - offset semctlon ! deferred I . - - -At month 2S. full or conditional. approval becomes — disapproval and EPA determines deficiency not corrected ------- Federal Register F Vol. 59, No. 149 / Thuxsday &ugust 4, 1994 ‘ 1 Rules arid è f ions . 39S41 - Second, if EPA proposes (before expiration of the 18-month sanctions clock) to fully or conditionally approve a plan or proposes to find that a State- is implementing its SIP and that proposal action is reversed before the 6- month clock expires that would have followed upon application of the offset sanction, application of the offset sanction is deferred until such reversal of EPA’s proposed finding. The offset sanction applies on the date EPA’s proposal finding is reversed (or, for final actions, on the action’s effective date). The highway sanction then applies 6 months later if EPA has not determined during that period that the State has corrected the deficiency. (This scenario is piovided for in the rule at § 5231 (d)(2)(i), (d)(3)(i) and (d)(4)(i).) The following discussion and Figure 2 provide an example of how this process functions for a finding of nonimplementation. 2 The process would be the same for an initial disapproval. Suppose EPA makes a finding of nonimplementation. initiating the section 179 sanction process. Suppose that EPA, prior to the end of the 18 month sanctions clock, proposes to find that the State is implementing its approved SIP. At the time of the positive finding, EPA would ‘ ThIs exampla Is given bra finding of Failuie to Implement. while the othur four esamples aze gtven for SIP d sappesvaIs. for iIIust athe purposes only. - simultaneously issue en interim fiuial rule, finding that the State has corrected the deficiency. - In this case, the application of the offset sanction would be deferred unless and until EPA reverses its proposed positive finding. Now suppose that EPA. at month 22, reverses its proposed positive fInding by withdrawing its’ proposed finding that the State is implementing its SIP. At month 22 (or, for final actions, on the action’s effective date), the offset sanction applies. The highway sanction then applies & months later at month 28 (or, for final actions, shortly thereafter; as appropriate), ii EPA has not determined that the State has corrected the deficiency. ------- . 39842 - Federal Register / Vol. 59, No.. 149 / Thursday. August 4, 1994 / Rules and Regulations Figure 2: Case 2 for’Findings of Nonimp1ementation - - At month 22. or EPA makes finding ________________________ shortly thereafter of following final noninipeiaentation actions), offset - sanction applies 1 . . ____ Prior to month 18, . . Ac month 28 (or EPA proposes that . shortly thereafter State is following final implementing SIP actions) • highway and makes Interim sanction applies final determination unless EPA th t deficiency determines the corrected State corrected deficiency - 18-month sanctic& clock e ires and application of - offset sanction, deferred. At month 22. EPA’ - -: proposes or- finally finds that the State is not.. implementing the- SIP and deficiency has not been - corrected -. - onLmG coos meo c -. ------- Federal Register 1. Vol. 59. No. 149 I Thursday, August 4. 1994 / Rules and Regulations 39043 Third, if EPA proposes (altec month 18 but before expiration of the subsequent 6-month sanctions dock) to fully or conditionally approve a plan or proposes to find that a State is implementing its SIP, application of the offset sanction is stayed unless and until EPA’s proposed positive finding is reversed. (This scei rio assumes thai EPA’s reversal oocurs before expiration of the 6-month sanction clock.) For both types of findings, the offset sanction reapplies on the date EPA’s prelimii ary positive determination is reversed. The highway sanction applies 6 months from the date the offset sanction initially applied. If EPA has not determined that the State has corrected thedeficiency prompting the findin& (This scenario is provided for in the rule at § 52.31 (d)(2)(ii), (d)(3)(ii) and (d)(4)(ii).) The following discussion and Figure 3 provide an example of how this process functions for a SIP disapproval. The process is the same where EPA hes made an initial finding of failure to implement. Suppose EPA makes a SIP disapproval, initiating the section 179 sanction process. Suppose that the State submits a revised SIP which EPA, after 18 months but before the subsequent 6- month clock expires, proposes to lly or conditionally approve. The EPA would simultaneously issue an interim final rule. Fmding that the State has corrected the deficiency. In that case. applicationof the offset sanction would be stayed unless and until EPA’s proposed approval is reversed. Now suppose that, at month 22, EPA reverses its proposed approval. The reversal would baa proposal to disapprove the SIP in whole ca’ in part or a final - disapproval of the SIP in whole or in part. At month 22 (or, for final actions. on the action’s effective date), the offset sanction reapplies. The highway sanction then applies at month 24.6 months after the offset sanction originally applied, unless EPA determines that the State corrected the deficiency within that r- ------- 39844 FederaL Register I Vol. 59, No. 149 I Thursday, August 4, 1994 I Rules and Regulations Figure 3: Case 3 for SIP Disapprovais At month 22, (or shortly thereafter following final actions), offset sanction re-applies 18-month sanction clock expires and offset sanction applies At month 24, highway sanction applies, unless EPA determines that State corrected deficiency Per disapproval, State submits revised SIP to EPA after ionth 18 but before month 24 1. After á th 10 but before month 24. EPA proposes to fully or conditionally approve SIP and make, Interim final d eterminat ion that deficiency corrected ‘I, On date of EPA interim finar • determination, • application of offset sanction - . stayed - J’. At month 22, approval becomes disapproval and EPA determines deficiency not corrected BiLLING CODE 1660.40-C ------- Federal Register / Vol. 59. No. 149 I_Thursday, August 4, 1994 I Rules and Regulations 39845 rourth. if EPA proposes (after month 18. but before the subsequent 6-month sanctions clock expires) to fully or conditionally approve a plan or proposes to find that the State is implementing its SIP, and EPA does not take action reversing such positive action until after the subsequent 6- month clock expires, application of the offset sanction is stayed and application of the highway sanction is deferred unless and until EPA’s proposed positive finding is reversed. The offset sanction reapplies and the highway sanction applies on the date EPA’s preliminary deteiinination is reversed. (This scenario is provided for in the rule at § 52.31(d)(2)(ii). (d)(3)(ii) and (d)(4)(ii).) The following discussion and Figure 4 provide an example of how this process functions for a SIP disapproval. The process functions in the same way for an initial finding of failure to implement. Suppose EPA makes a SIP disapproval, initiating the section 179 sanction process. Suppose that EPA. after 18 months (but before the subsequent 6-month clock expires). proposes to fully or conditionally approve the SIP. The EPA would simultaneously issue an interim final rule, finding that the State has corrected the deficiency. In that case, application of the offset sanction would be stayed and application of the highway sanction deferred at the time EPA makes its positive finding. Now suppose that, at month 26, EPA reverses its positive finding. The reversal woqld be a proposal to disapprove the SIP in whole or in part or a final disapproval of the SIP in whole or in part. At month 26 (or. for final actions, on the action’s effective date), the offset sanction reapplies and the highway sanction applies. u c coca -_ --- r ------- 39846 Federal Register / Vol. 59,. No. 149 / Thursday, August Figure 4: Case 4 Per disapproval. State s fts revised SXP to EPA after month 18 but before month 24 After month 18 but beforo month 24. ‘A proposes to gully or conditionally approve sIP-and sakes interim final determination tMt deficiency corrected 4, 1994 i Rules. and.Regulations for SIP Disapprovals 1 At month 26, approval beconea disapprovaL and EP& determines deficiency nor - corrected 18-month sthcttcn clock expires and offset sanction applies At month 26. (or shortly thereafter foiloving final actions), offset ancLio re—applies and highway sanction applies On data of EPA thterii. final determination, application ot offset sanction stayed 6-month sanction clock expires and application of highway sanction deferred - muj Q COOS M ------- Federal Register / Vol. 59, No. 149 I. Thursday, August 4, 1994 / Rules and Regulations 39847 Lastly. the rule also provides that. following a SIP disapproval or a finding of failure to implement, if EPA proposes after both sanctions clocks have expired to hilly or conditidnally approve a plan or proposes to find that a State is implementing its SIP, application of the offset and highway sanctions is stayed unless and until EPA’s proposed positive finding is reversed. The offset and highway sanctions reapply on the date EPA’s preliminary determination is reversed. (This scenario is provided for in the rule at § 52.31 (d)(2)(iii), (d)(3)(iii) and (d)(4)(iii).) The following discussion and Figure 5 provide an example of how this process functions (or a SIP disapproval. The process functions the same for an initial finding of failure to implement. Suppose EPA disapproves a SIP, initiating the section 179 sanction process. Suppose that the State submits a revised SIP which EPA, at 25 months, proposes toiully or conditionally approve. The EPA would •. -. simultaneously issue an interim final rule, finding that the State has corrected the deficiency. In that case, the application of both sanctions would be stayed on the date of the positive action. Now suppose that, at month 30, EPA reverses its proposed positive finding. The reversal would be a proposal to disapprove the SIP in whole or in part or a final disapproval of the SIP in whole or in part. At month 30 (or. for final actions, on the action’s effective date), both sanctions reapply. BWG COOS 6560.60.P ------- 39848 Federal Register / Vol. 59. No. 149 / Thursday. August 4, 1994 1 Rules and Regulations Figure 5: Case 5 for SIP I isapprova1s 2 1• At month 30, approval becomes disapproval, and EPA determines deficiency not corrected 18-month unction clock expires and of feet unction applies At month 30. lot shortly thereafter following final actions), both sanctions re-apply 6-month sanction clock expires and highisy sanction applies Prior to month 25; per disapproval, Stat submits revised S P to EPA At month 25 EPA - proposes to fully or conditionally approv. SIP and EPA - determines deficiency corrected On date of EPA interim final determination, application of both sanctions stayed • mu o coon =c a ------- Federal Register / Vol. 59, No . 149 / Thursday, August 4, 1994 / Rules and Regulations 39849 In all cases following disapprovals and findings of nonirnplementation, the sanctions dock stops permanently and any sanctions applied are permanently lifted only when EPA completes final notice-and-comment rulemaking action fully approving the SIP revision or finding that the State is implementing its SIP.23 (4) Legal Basis and Rationale for Change One. The EPA believes that its policy darification is consistent with the statutory language of section 179 and that it is a reasonable interpretation of that language. The EPA believes this policy is consistent with the legal requirements of section 179 of the Act end section 553 of the APA. Section 179(a) of the Ad requires sanctions to apply 18 months after a deficiency finding “unless such deficiency has been corrected ,“ and requires that ‘sanctions apply “until the Administrator determines that the State has come into compliance * .“ The EPK interprets this language to require that EPA make a determination that the State has corrected the deficiency before permanently stopping the sanctions ‘ock or lifting ganctjw s. In the e of lock started by a disapproval, such a btermination would be represented by - final, full approvaL However, EPA does not believe that sectIon 179(a) requires a final approval in order to defer or stay the application of sanctions, since the statutory language -speake generally in terms of •‘ ectjnr’defldendee and “determining” compliance without - explicitly lhildng those events to finaF ap ruvalactlons. SIP disapprovals. EPA recognizes the first onnunanter’s qonomn over timing and believes that this policy clarification eliminates the potential for sanctions applying in an area when EPA has a submittal in house for which EPA has determined that it is more likely than not that the State has corrected the deficiency that prompted the original disapproval. Extending the approach For disappmvals to findings of nonimplementaticu also serves to avoid applying sanctions when EPA has proposed that a State is implementing its approved SIP. - Consequently, EPA believes it is consistent with section 179 to treat proposed full approvals following isapprovals 2 ’ as the basis for deferring These aOloc, p anoSly stop the senstioas xk and p manently iweie sanctions became such actions repesuent a ’Aa 5naI detseminaflon that the State has inst the requirements of the Act and thus has anrrected the deficiency that Initiated thew aL i. process. The IoHowh ig diacusefon on EPA’s legal rationale and basis Sr staying and def . g or staying the application of sanctions, State’s failing to submit a complete while not permanently stopping the revised SIP to which it committed or by sanctions clock or permanently lifting EPA s disapproval of the State’s revised sanctions. The EPA also believes it is- SIP. -. consistent with section 179 for proposed The EPA believes that this approach and final conditional approvals to be the is similar to the method courts basis for deferring andJor staying the traditionally use to grant interim application of sanctions. 27 The proposed equitable reliet Courts may grant full or conditional approval then forms preliminary injunctions to parties that the basis ForEPA to issue an interim the court determines are likely to final determination, which EPA would succeed on the merits of their case. publish in a separate action in the . where there i no adequate legal remedy Federal Register contemporaneously available, and where the public interest with the proposed approval notice, that would not be served in not granting the.. the State had corrected the deficiency injunction. Such injunctions may and come into compliance with the - typically last until the court has finally requirements of the Act 28 While this decided the merits of the case, either for interim final determination would have or against the narty granted the the effect of deferring or staying injunction. Deterring or staying the sanctions, it would not have the final application of sanctions upon proposed effect of either approving the submitted .approval of a SIP revision is analogous, SIP revision, or permanently stopping a in that an EPA proposed approval sanctions dock or permanently lifting represents EPA!s view that it is more. sanctions. The Interim final- likely than not that the State has determination would be subject to corrected the disapproval deficiency notice and comment and would have and come Into aunp )iavHw with the effect only until either EPA made a final requirements of the Act. Also, as SIP determination that the deficiency was approval actions generally require con-noted at the time of a final approval notice-and-comment rulemaking before - - of the S W revision, or EPA rev od Its they can become final, ifa sanctions interim final determination at the time clock is due to expire after proposed EPA reverses its proposed full or -. approval but before the Agency can conditional approval Uan EPA practicably fulfill Its notice and • proposed full approval were by commcpt duties and g fl • pwposeud disapproval, the Agency appmvc1,tb e Is no other “remedy” would publish a separate action In the available to rei!eva the State from the Federal Register withdrawing the ‘ - piininhment of sanctions, even though it interim £nal determination (that the isprobable that the State hati Vuuade4 • State has corrected thu deficiency) ‘- the defl .iiaum.v. •• .. - . contemporaneously with the notice of - - Moreover, PA does not believe,’- the proposed disapprovaL If en EPA following proposed appróvals,that-it” proposed approval were reversed bya - WOuld beu the public Interest for final disapproval. EPA would take final sanctions to remain-In effect; as at that action finding that the de icy lass - point the Agency believesthat therein not been corrected in fi nothing further that the State need do to disapproval action. For an EPA :‘ come into compliance, end thus there is proposed conditional approval, a - no fwihar heed for the deterrent effect-. reversal could occur by a proposed or. -. of sanctions. The EPA also believes that fiUl disapprovaL For an EPA final • • in these tUStIOBS ft would be -. - conditional approval, a 5(fl 5} 3 especially unfair to States to begin the . occur when the conditiOnal approval - applicationof sanctions where the only converts to a disapproval through the reason the sanctions clock has not -. ______ - perittanently stopped is that the Agency addresses SIP cannot comPlete its rulemaking process- disapprovalsbmt applies equally tn Endbigsof to finally approve the S W before •.• -. sanctions apply. Finally. EPA notes that nra NRDC a. EPA. N c 92-s 53 5 alIp op ailS like the judicial preliminary injunction. (D.C. Cir. Maya. 1994), theCourt struck down EPA’s policy of conditionally approving model, this approach provides that- SIPs (La., SIPs coeislsttng solely olaccenmltmeei). upon reversal of EPA’S preliminary. Howesur, the Cowl provided that the conditional assesnnent that the SIP revision i approval . p.lrnnI,, , , wee Intended to provide A approvable. and that, therefore. the with an altesiestive to disapproving substantive, but Itot entirely satisfactory. SIPs ’’ ‘.“ The EPA will deficiency has not been corrected, beI*IO)ndItlOflal ftPPIO al3 Consistent with that sanctions Would be in effect if the • interim final determination that the wslncea final conditional approval has the effect State had corrected the deficiency bad of continuing di sbylngandlo - never been made.’- •. •- . - . sanctions. upon final conditional approval. EPA..:. - - The EPA also believes that this • buId not publish a second Inturim fins) detormlnation that the State hes .,,cte1 the approach is consistent with the --. . -. deficiency bee footnote 15). . - - : . - .- : iuim of section 553 of The APA.. -’ ------- 39850 Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Rules . nd Regulations Generally, under the APA, agency the State’s SIP revision and publicly rulemaking affecting the rights of stated its belief that the submittal is individuals must comply with certain approvable and that the State has minimum procedural requirements, corrected the deficiency, but due to the including publishing a notice of procedural requirements of the Act the proposed rulemaking in the Federal Agency has not yet been able to issue a Register and providing an opportunity final approval. The EPA believes for the public to submit written sanctions coming into effect following comments on the proposal, before the proposed approvals would rulexnaldng can have final effect. The unnecessarily risk potential dislocation EPA wiU not be providing an in government programs and the opportunity for public comment before marketplace. The EPA also believes that those deferrals or stays are effective, the risk of an inappropriate deferralor Consequently. EPA’s approach may stay would be comparatively small, appear to conflict with the requirements given the limited scope and duration. of the AM. However, EPA will provide deferrals and stays would have and an opportunity to comment on the given the rule’s mechanism for making proposed approval that was the basis for sanctions effective upon reversal of its the Interim final decision and will initial determination that the State had provide an opportunity. after the fact, corrected the deficiency. Consequently, for the public to comment on the EPA believes that the “good cause” - Interim final decision. Thus, an exception under the APA allows the opportunity for comment will be - Agency to dispense with notice and provided before any sanctions clock is• comment procedures before deferrals permanently stopped or any already. and stays of sanctions become effective, applied sanctions are permanently and that it is thus appropriate to lifted. In the context of the SIP approval respond to the commenters with the ‘rul in’i1dng, and with respect to the approach adopted In today’s rule. ’ Interim final rule, the public would P° ° Other Cominents. have an opportunity to comment on the The EPA does not support the appropriateness of EPA’s interim alternative proposed by the commenters determination that the State had that EPA temporarily or permanently corrected the deficiency and on whether stop the sanction docks started by the Stale should remain sub jec disapprovals upon EPA receipt of a sanctions, even though tb” ia e aI or submittal that the State believes corrects stay Is already effectiyC ” the deficiency. The EPA cannot determine whether -The b , asis far Uowing such an iiiterim the State has wrm tød the deficiency flnal tlon stems from section 553(bXB) until it reviews the plan for adequacy. -of the APA which provides that the If the senr*ion clock were temporarily or notice and opportunity for comment permanently stopped upon mere requirements do not apply when the submIssIon of a pran following any Agency finds that those procedures . section 179(a) disapproval (or finding of “impracticable, unnqcessary. or contrary nonimplementatlon) and not started to the public interest.” In the case of again until subsequent disapproval, sanctions, EPA believes it would be - mandatory sanctions would then take • both Impracticable and contrary to the- that much longer to have the effect of public interest to have to propose and ‘encouraging State compliance and - provide an opportunity to comment ..• protecting air quality in the area.,- before any re ’ ief is provided from the Temporarily or permanently stopping effect of sanctions. First, until EPA - the dock upon mere submission of a proposes approval of a SIP revision, the plan could result in abuse of the system Agency’s first step in determining- by States knowingly submitting SIP’S whether a State’s SIP submittal meets that EPA cannot approve in ôrder.to the requirements of the Act. EPA is not defer the application of sanctions. By in a position to propose that the State allowing such abuses, such an approach has corrected the deficiency; thus, there would also be unf i , to States which, is no point in the process before . despite a good faith effort at developing proposed approval at which EPA could a corrective rule, aie unable to avert propose that the State has corrected the sanctions following disapproval. In — deficiency and provide an opportunity sum, under the revised policy, the for meaningful public comment on the underlying requirement for stopping the issue. Second, as discussed above, EPA sanction dock is maintained: EPA must believes it would be unfair to the State take final action to fully approve a and its citizens, and thus not in the submitted SIP revision or find that a public interest, for sanctions to remain - State is implementing its SIP in order to in effect following an EPA proposed - permanently stop the sanctions clock approval, since at that point the Agency and permanently lift any sanctions. As’ - has completed a thorough evaluation of discussed above, EPA will defer and/or stay the application of sanctions when it proposes a positive finding that forms the basis for EPA to determine through an interim final action that the deficiency has been corrected; but in these cases EPA will not temporarily or permanently stop the underlying clock. The EPA also believes that its interpretation is legally supported under the Act. Generally, section 179 states that, “ * * unless such deficiency has been corrected within 18 months after the finding, disapproval, or determination * * “ one of the sanctions shall apply, as selected by the Administrator. Section 11O(c)(1) of the Act requires EPA to promulgate a FIP at any time within 2 years after the Administrator finds that a State has not made a required submission or has made an incomplete submission, or. disapproves a plan submission, “unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.” The running of the sanctions dock is tied to the particular deficiency at issue For example, if the clock was triggered by a finding of failure to submit or a finding of incompleteness, the dock will stop if EPA determines that the State submits a complete plan; it Is not also necessary for the plan to be actually approved to stop the dock. If the - - complete submission is later disapproved, then anew 18-month - dockwillbegintorun,asprovidedin .‘ - section 179(a), and will continue to run untilthatdeficiencyiscorrectedwith an EPA approved plan. For the PIP - dock, in addition to the deficiency being corrected, section 11O(c)(1). includes an additional a’iterion—EPA, SIP approval—that must be satisfied.for EPA not to have to promulgate a FIP within 2 years of a finding of .. -i nonsubmittal or incompleteness. The - explicit reference to an approval as an• added prerequisite—beyond “conectin the deficiency”— makes clear that. in the context of failures to submit or submission of incomplete plans, plan approval is quite distinct from . - “correcting the deficiency.” Therefore. the Administrator’s approval is distinct from “correcting the deficiency” for’ failure to submit and incompleteness. Therefore, the fact that the “SIP ‘- - - approval” language is redundant for disapprovals. where SIP approval is par of correcting the deficiency, does not render that clause superfluous. This interpretation of the section 1 sanction dock does not “read out” the” section iO(c) requirement, but rather merely illustrates that-following . .•‘. disapprovals what is necessary to stop ------- - Federal Register I Vol. 59, No.- l49fThursday,AugUst 4, 1994 / Rules and Régulétions 39851 - .... sanction and FIP clocks is the same EPA approval of the SIP. (See EPA’s July 9.1992 SIP processing guidance. page 10.) However, as discussed above, this is nOt the case for sanction clocks started by a finding of failure to submit • ore findingof incompleteness. There, the Stale can correct the deficiency merely by submitting a SIP EPA finds complete. This would stop the sanctions clock. In these situations, the additional step of EPA approval is required to stop the Fl ]’ clock, under the plain language of section 11O(dlll). • Therefore. EPA’s interpietationuf section 179(a) does not render the previsions of section 1l0(c)(1)(8) inconsistent, meaningless or superfluous. The Boise Cascode case -cited by the commenter addressed a situation in which one word. “promulgation:’ wan argued by petitioners to have the anne meaning an another. ‘npproval (942 F.2d at 1342). The cowt rejected that argument because failing to distinguish between the terms would have resulted either in a conflict between two subsections of .h Clean Water Act or made ,erfluoustheuse of ’approval In ther subsection ( Id ) . Here, EPA’S erpretadon of what is required to - binect a defidency under section 179(a) • does not nfl1d with the requirement TotEM approval to stop a PIP clock, ft. logically follows that approval is- impflddy7e4uiiedtocorrecta - deficiency based one disapproval, since a State cannot be considered to have remedied the underlying flaw that led to • a disapproval until EPA has determined that the State’s attempt to do so Is approvable. 29 The explicit language In section Z10(cX1XB) Is necessary because FlPclocks also may be started by a finding of failure to submit or SIP - disapprovaL Congress was explicitly. providing that in both these thstant EPA approval is required to stop a FIP • dock. Therefore, the reference in section 110(c) to the need for EPA approval still has meaning when the initial failurewasa failuretosubmitor an Incompleteness finding. Thus, EPA’S interpretation does not render Asd1scuasedaboia. E PAbe l ievesftIs appropriate sub. point otp . . ,d approval to contetnporeneonaly Issue as Interim final determination that the State has corrected the ‘laSdency icr pudngorstayütgth. imilon of any sanctions that are due. Again. Interim final determination would be aubject to ondition that EPA grant Irnal approval to the and would not have any final effect on the .....alapproval action, lithe subsequent condition Is not met (i.e.. If m ’ A . aopossd . p rn ..l is reversed b a proposed or Snal disapptpvalL from thai pOint on the interim final determination would have no effect and any-sanctions vequired to be applied would be applied. - -• - superfluous the explicit language in section 110(c)(1)(B). Moreover, EPA’s interpretation does not ignore or “read our of the statute section 110(cXl)(B) (NRDC v. IJS EPA 822 F.2d at 113). That case addressed a petitioner’s attempt to ignore a specific condition of the Clean Water Act’s applicability provision, which the court viewed as an wiacoeptable method of construing statutes (Id). here, rather than disregarding the requirement that EPAapprova l lsnecessarytostopaFlP clock. EPA is interpretIng section 179(a) to implicitly require that same element to be satisfied before a sanctionsilock stailed fore disapproval can be stopped. This in no way Ignores the section 1lO(c)(l)(B) language for purposes of the FIP clock, nor represents an attempt to interpret the Ad such that the 1angu ge -of section 1.lO(c)(1)(B) does not have full effact. As stated above, the reference to EPA approval in that section still has meaning where the clock was started by a finding of failure to submit or incompleteness. ‘ - ‘ (5) AdditloimI Comments Regurding - the Sanctions aock.’- Ia) Comments. Another commenter believes that the final rule should provide Toe resetting the sanctions clock wh ’inever a State that had failed to submit a timely SIP submits one, even iftheSlP lslsterfoundtobe. incomplete. The commenter notes that section 179 provides for en 18-month period following one of four diff r 0 nt’ types of findings of Inadequate State action before sanctions can be imposed. The commenterergues that EPA fflllyihorteisth lspeiiodby combining Into one, two types of - - - inadequate action under the same 18 - month period , and that the final rule should provide for separate docks for’ — each type of Inadequate action. - Another commeuter Is concerned that States may be tempted to view the 18- month sanctionsciock esadditiouaI time in which to meet a deadline. The cornmenter believes that Congress did not intend t iat States that failed to• submit a timely SIP and later submitted en inadequate SIP wouldbave more time.belore facing sanctions than States that submitted a ‘complete but unappmvable SIP on time. While the. commanter agrees with EPA’S policy that incomplete submittals cannot temporarily stop the ’sauctions clock, the coimnenter believes the overall policy rewards delay in completing programs. The coinmenter believes that the final rule should state that only EPA approval of a finil rulestops the clock. - (b) Responses. As noted above, section 179 indicates that sanctions - apply within-certain timeLdIfl , unless EPA determines that the deficiency that - prompted the finding starting the sanctions clock has been corrected within those timeframes. Therefore, EPA believes the Act requires that sanction clocks stop for findings of failure to submit and findings of incompleteness when EPA finds a subsequently submitted SIP complete (i.e., finds that the deficiency has been corrected). The EPA disagrees that a clock started by a finding of failuie to submit should stop based on a mere submittal that may or may not be complete The Act provides under section l1O(k)(IXC) that where the Administrator determines that a plan is incomplete the State is treated an-not having made the - submission. Based on this, EPA believes that an affirmative finding that a SIP is complete is necessary to cure a . - nonsubmittel or Incompleteness deficiency and stop sanction clocks Initiated by such findings.’°This . - inteipietation is further supported by - the factthata findingoffailureto’ - submit end Incompleteness are provided forunderthesanreprovision - of sections 179(aXl) and 179(aX3)(A). Ontheotherhand,EPAdoesnot believe that it is appropriate to allow’’ only EPA approval to pcnu nentIy atop thesanction clock for all types of flndings. 3 ’ It is conceivabl, that a Stale could abuse th, system under the - - predess established in the final rule by - submitting a complete but inadequate -. SIP at 17 months that stops.a sanctions dock that started based an a finding of • fallwetosnbmitoraflndlngof - incompleteness. Such an area could face sanctions later then the State that; submitted a timely. complutebqt - - tmepprovable SIP. iIows r, as b’ - discussed above, EPAbelieves the’ - reference tosuth eflc1ency” immediately following the list of the - types of deficiency findings insection 179(a) indicates that sanctions docks will stop ii and when the State corrects the specific deficiency that prompted the finding. Consequently, the running and stopping of the clock is tied to the particular deficiency at issus, and EPA, believes that it lacks the statutory - seAs noted.above in this section. this change is reflected In the rule and is ‘ wd In-section this document. “As noted above, the nte Indicates that - It agrees with EPA’. proposed policy that incomplete aubminals cannot temporarily stop the sanctions clock. The EPA’ . proposed policy did not state that incomplete sulunittels cannot temporarily stop the sanctions clock. Rather. EPA’S proposed policy stated that Incomplete submhtale cannot’ permanently stop the unction. c1 ckinit1atsd bye finding of failur, to submit c c Incumpletenes& Thus, in responding to the cummeat permanently atop ha, been substituted fottexnporarily stop. 2’ ------- 9352 Federal Register I Vol. 59, No. 149 I Thursday, August 4, 1994 / Rules and Regulations ithority to apply mandatory sanctions nder section 179 upon those States that titially failed to make a submission hrough failure to submit or by virtue fan incomplete submission) but which ave subsequently submitted a complete lan. The submission of a complete plan sufficient to stop a clock started for failure to submit any or a complete lan because at that point the State has orrected the specific earlier deficiency f not having submitted a complete plan. Following this correction, the lain language of section 179 does not how application of mandatory anctions due to the original deficiency, ut if the complete submission is later lisapproved, a new sanction clock will egin to run and will continue to run Lntil that specific deficiency is orrected. 32 The EPA believes that verall its policy is consistent with the anguage of sectIon 179 and rational in hat it recognizes that what the State nust do to correct a deficiency relates Iirectly to the nature of the finding, and bat overall this policy will encourage omplianse with Act requirements. Finally, the Act contains due dates by vbich the State Is required to submit ertain SIP’s. The EPA does not believe hat Congress established the 18-month ieriod before mandatory sanctions must pply is a grace period in which States save a legal right under section .179 to ubmit SIP’s after the relevant statutory tue date. Iniact, EPA Interprets section 110(m) of the Act as providing EPA with he authority to’? . * apply aiy of he anctions listed in section 179(b) at any ime (or at any time after) the dministrator makes a finding, - lisapproval, or determination wider section 179(a) * PA is not precluded from taking mole, Iggressive action than required under action 179 when States fail to correct. leficient Pl8 &.’:. 1. Other Areas of Comment This ectioniddre eithe remaining - ireas of the proposal where comment as received. . - a. Lack of Good Faith Deteimination; Under section 179(a), both the offset and iighway sanctions shall epply after 18 nonths if the Administrator finds a lack fgood faith onthe part oftheState. In heproposa latpage5 lz74.EPA’ ndicated that any finding of a lack of - ood faith EPA makes under section - ‘ Funhezmore. It appears that the appnach irticulated by this cominenter (Le.. that sanctions locks and PIP clocks are both stopped by EPA ipproval of a revisedSIP) would present the ,roblegns recognized In reading out of section liO(c)(1) the clause ?the Administrator approves he pun or plan revision” (Boise Coscode, 942 F.2d it 1432. and NIWC.v. EPA. 822 F.Zd at 179(a) will be subject to notice-and- comment rulemaking. One comnienter believes that the final rule should define a “lack of good faith” and require appLication of both sanctions as a default where it exists. The commenter believes that some situations may require fact specific judgment, while others are so extreme that they presumptively prove the State has decided not to make a good faith effort at complying. The commenter believes that EPA need not undertake nàtice-and-comment rulemaking with respect to findings of a lack of good faith. Another coinxnenter believes that the phrase “if the Administrator finds a’ lack of good faith on the part of the State” is subjective and ambiguous and needs defining. In response to the comments. EPA still believes findings of a lack of good faith under section 179(a) must be subject to notice-and-comment since it is a discretionary action which requires exercise of a substantial degree of judgment on EPA’s part. The public should have an opportunity to comment on the basis for these actions. Further, EPA does not yet have a policy on how to further define the Act’s language, or when and where It plans to make findings of a lack of good faith other than the case-by-case approach described above. The notice-and- comment rulemaking will provide an- opportunity for the public to comment Ofl EPA’s interpretation of a ‘lack of good faith in each caso-specific circumstance. • b. Sanction Timing. The proposal at page 51272 IndIcated that since section 179(a) provides for automatic sanction application once EPA has made the selection, under this sanction sequence rule sanctions will apply automatically - in the-orderprescribed herein in all in zewes in which sanctions are applied.following findings under - section 179(a) (1)—(4) that EPA has already made or that EPA will make in the future, except when EPA takes a separate action to select a different sequan of sanction application. However the proposal indicated that where the sanction clock expires for any ndingsbeforethisactionisfinaland effective and EPA has not taken independent sanction selection action. EPA interprets section 179(a) to provide that sanctions shall not apply until EPA makes the sanction selection through notice-and-comment rulemaking, such as this action. At page 51272 of the proposal EPA also indicated that EPA intends to notify States of the automatic sanctions by • letter and publish a document in the Federal Register in which EPA amends the language of the rule to indicate areas subject to the applicable sanctions. The proposal provided that if removal of sanctions is warranted, EPA would notify the State that sanctions are being removed and amend the rule to reflect that. One commenter believes that EPA’s interpretation of section 179 is incorrect and that section 179 unambiguously requires sanction application within 18 months of a finding. The commenter believes that Congress did not condition EPA’s mandatory sanction application duty on completion of notice-and- - comment rulemaking. The plain reading of settion 179(a) is that sanctions, “as selected by the Administrator,” apply within certain prescribed timeframes. The section does not provide any guidance to EPA on sanction application sequence. Given this wide discretion, EPA believes that ft Is necessary for sanction selection to be subject to notice-and-comment in order to provide for public comment. The EPA interprets thepbiase “as selected by the A Iininictrator” as words of condition that must be met before mandatory sanctions apply.. Indeed. EPA is undertaking this rulemaking to • satisfy the conditional duty so that sanctions may apply automatically when sanctions clocks expire. The EPA is also conducting this rulemaking to eliminate the future neea- (except to reverse the prrn ion - sequence) for IndMdual ruldmnldngc for every finding with respect to part D requirements. The EPA believes in the long run this actionwill facilitate.’ smooth applicatlonof sanctions to encourage State compliance and protect air quality. • - C. Notice and Coñiment for Nonsubmuttal and Incompleteness Findings. In the proposal at page 51272. EPA’s view was that notice-and- comment is not required for findings of failure to submit because of insufficient time provided by the statute. Since EPA has lessthan6Odaystodetermine - - whether a State’s submittal is complete, and it is impossible to provide notice- and-comment in 60 days, EPA believes that Congress clearly intended that EPA shouLd not go through notice-and-. comment rulemaking prior to making findings of failure to submit. Additionally. EPA argued that even if EPA’s findings of failure to submit were subject to APA rulemaking procedures, EPA believed that the good cause exception to the rulemaking requirement applies (APA section 553(b)(B)). Section. 553(b)(B)of tIn provides that EPA need not pmvh . . - notice and an opportunity for comment if EPA determines that notice and comment are “impracticable, ------- Federal Register! Vol. 59 , No. 149 /_Thursday, August 4, 1994 / Rules .and Regulations 39853 innecessary, or contrary to the public Congress appears to have adopted EPA’s interest.” The EPA argued that notice established process of making and comment for findings of failure to completeness determinations by letter. - submit does not require any judgment Moreover, EPA does not believe that the on the part of EPA and, therefore, is - completeness determination is highly unnecessary. discretionary, but instead is a One commenter states that under the straightforward exercise to assure a APA, burdens such as sanctions cannot State’s submittal has all the basic be imposed without notice-and- elements to warrant further review for comment. The commenter argues that overall adequacy. EPA provides no defense of its denial 91 Regarding the APA, EPA continues to public comment for findings of believe that even if EPA’s findings of incompleteness and cannot defend such failure to submit and incompleteness denial for findings of nonsubmittal and were subject to rulemaking procedures incompleteness. The commenter further - under the APAP the good cause argues the judgment of whether a SIP exception applies to such findings for meets the SIP completeness criteria is - the reasons discussed above. It would often debatable and discretionary. not be practicable to subject every - Therefore, the commenter argues, the. . completeness review to notice and public should be able to comment. comment because of the limited time Another commenter believes that afforded by the statute. It would also not EPA’s proposal contradicts the spirit be in the public’s interest because it and letter of the notice-and-comment would impose a tremendous burden on provisions in the Act. The commenter - argues the proposal is contradictory on the Agency and divert resources from when it allows for public comment in more important substantive SIP reviews. sam, instances but not others. Regarding the consistency comment.. • In tesponse to the thmments, EPA - EPA believes that it is adhering to maintains that notice and comment is notice-and-comment pràvisions of the ot necessary for findings of failure to amended Act and the AM. Where it is ubmit and incompleteness. The 60 . appropriate.: because The determination ays the Act provides EPA to determine requires EPA judgment, EPA provides whether a State submittal is complete’S for notice and comment (i.i, for SIP does not provide sufficient time to. •- disapprovals or findings of • conduct notice-and-comment.. .-• - - .. . nonimplententation). Additionally, as rulemaking prior tomaking dis L- EPA has aone via this action, when EPA failure to submit or findings of’. - make a andi 6 n selection notice and - incompleteness. The EPA contintiis Ic. comment am also provided. On the believe that the impossibilify other hand, as discussed above, in othei conducting notk e-and-comment . ‘ ; ce ses sufflciönt time does not exist to rulemaking within the 60 days prvided.. provide for nOtice and comment ai,d the for cdmp lèteness decisions is itself -‘: -. determinations themselves require little, compelling evidence that Congress did - if any; judgment. Finally, as discussed in section ILC.3.,-tho final rule does not not intend such rulemaking.: Additionally, EPA does not believe that - cover findings of substantial inadequacy notice and comment are necessary for. under section l1b(k)(5) for part D SIP’s findinl of incompleteness because - .(so-called SIP .calls), which were section iiOtk)(i)(B) does not ‘- ,- - Covered by the proposed rule, because specifically require it. Byinacting ;s Qf concerns about adequate notice and section iiO(k)(i) on completeness, - . . comment befór sanctions are applill Congress was codifying an EPA practice:: for State failur to respond to a SIP call. - created in late 1989 in which PA did ;.c.:fhe EPA intends to develop an - - - not provide notice-and-comment alternative approach for applying mandatory sanctions for State failure to rulemaking before makingS inconipleteness findings. 3 By î 1 i respond to SIPcalls thaiprovides for - - that practice and by not specifically. - - notice and comment. . requiring anything more than the -. - - d. PM—b Waivers. The proposal did . process EPA already established; ¼, - not a4dress the PM—b waiver -: _________ - . provisions in semion 188(Q of the Act. - • Note that in prwnulg.tntgthe completeness The commenter expresses a frustration. criteria. EPA noted that the purpoá of the with the definition of PM—b - mpteteness procedure is to ‘keep incomplete ‘- “significance” and argues that in the - packages out of the more extensive review S fstom West, PM—b levels above the standard i.e.. miemaking for approval), thereby eaviag both EPA and the Slate valuable time” FIt 2138. 2139 are caused predominately by fugitive, (January19. 1989)). Therefore, requiring rulemakjeg ‘dust and mob.ile sources. Therefore, the action to determine whether a SIP submittal is - . commenter believis, applying 2-to-I complete would defeat the purpose of the ‘‘ ‘ ‘ offsets to industrial sources will have a completeness criteTia. which Is to allow for a quick rejection of those submiflals that are “essentially negligible effect on PM—b 24-hour unre iewable” (hi). •. - .- - concentrations. - - - S A July 1992 draft addendum to the General Preamble (57 FR 31477, July Th, 1992) addresses severn! waiver policy issues, including significance levels. The EPA believes the comment period for that policy, rather than this action selecting sanctions, is the appropriate forum for comments on that issue, The EPA recognizes that in some nonattainment areas industrial sources may be less significant contributors. In those cases, EPA may decide to apply the highway sanction first, which this jule provides flexibility to do.,;- - C. Summasyof Changesin Rule,. 1. Section 52.31(a)—Purpose Section 52.31(a) seta forth the purpose of this rulemaking, which is to establish the sequence of sanctions required to apply under section 179(a). The - substance of this provision was not changed from the proposed rule. - 2. Section 52.31(b)—Definitions - Section 52.31(b) sets fdrth-the- ‘definitions applicable under 40 CFR - - 52.3t. The definitions of “Act” and’ • ‘1990 Amendments” aie not ‘-- :• substantively changed. However, the. citations for these two definitions wer inadvertently switched and they now correctly proyide that the Act is located at42U.S.C.etseq.andthel99O..- Amendments were set forth in Public’ Law’101—549. . • , • In. addition, several definitions were’, added. Since the regulation provides’s that the offset sanction only applies to- the pàllutant(s) that the finding. concerns and its precursors, EPA has:. added a definition of “precursors.” The ‘EPA has also added a definition of pm uzsors’ which ’specifically identifies the two ozone precursors— - VOCánd -. .‘, , -. - The EPA has added a newdefinftion for “affected area.” This term, while used in the proposed rule (e.g.ç the tables), was not previously defined. Furthermore, its usage in the final rule has been expanded; in many places the word “area” has .now.been replaced by “affected area:” The definition provides that an “affected area’ is the geographic area subject to or covered by the Act requirement that is the subject of the -. •linding and either, for purposes of the offset and highway sanctions,’ is or is within an area designated - - - -- nonaltainment area pursuant to 42’ - U.S.C. 7407(d) or, for purposes of the offset sanction, is or ,is within an area otherwise subject to the emission offset requirements of 42 U.S.C. 7503. As ust d in this rule, in conlunction vith §52.31(e) (1) anà (2), the affected area is the area potentially subject to a ------- 39.854 Federal R1!gjster I Vol. 59. No. 149 / Thursday. August 4. 1994 / Rules and Regplatinns sanction based oaa finding. The new definition clarifies that the sanction applies to the gwgiaphic area subject to or COvcwd Piy the recpñrement at issue in the finding. This wfl usually be the entire c sigjxated area, but in some instances may be a portion of a - dest eted area. This point is made throu t the first portion of the definition. Moreover, since the affocted area istbeareein whinha sanction applies, It w ecessary lfm4t the definition tethose areas that could be subject teasandion. Therefore, the second portion of the definition restricts the deflaltion of “affected area” b incorporating the geographic limits of the highway aiui offset sanctions. Fhst. the highwaysandien. as applied aeder sedina 179(a), is Ilsaitod to noaau t eaa. sin i cecth 179(b)(1l des.that the highway sanctioo ybe”applicable tea nonattaMunea& area” ’ Second. b r Ito terms, the offset sanction has effect only in thosearearin whfchthe offset requireseentsofs on 173 are re ired to apply. (See 59 FR t4 ) (January U.. 1994) for a firrthetdi usaiou of fbi geogaphicapp l isetñlityofseetian. 17 * 1 ThisIfldHdeSal oeseotae add tin a .sosrs tboaetosated in NQTRaeahlhe sub ject to the offset s n rni_sinsa the eases may be sub t tn’thao et requirements of section 173..evea • - tho ye c --. esection exainpl4.Ther me..ll se chuee. of the ds niinn. areen te no o eatareen(whith be - sidije to both the higK” y and o et... nctiorr) and asses wuasEhfrIl to the . s*sequiremonts tf ...i secties 173 ( wbkb would be to: the offset sanctions).. .. • Thresuca eni1rstratehcwt - - definition appti.a - One, if EPA finds that a Slate folIate 5 i La 4t a Phi-il) plea for a pM_1Ooonatta i nm. k area a tesectino 1*IancIlhe. State does not emsect tbe deficiency. • within 18 n then. persu tet rule,, the offset maclion shall app1 pin the PM-b nenattainmant ares whose boundaries asedescribed in 4 Q fl past- 81. 1 16,monihslates the dsfidasw y resnsins.una*rected. then the hisbwair Two, if EPA finds a State fails to submit a required SD> revision under the Act for a requ irement that applies to only-a portion of an area, than the sanduii apply-to the portion of the area subject to the requirement and not the whole area. Forexainpie, the enhanced inspection and maintenance plan reqiniement forserious, v rv. antI e ,ctnnne flon ttdunuent areas applies only to “çach Ukbau d area (in the neeettainoient area) as defined by the Bureau oltheCensus, with a 198& population Of 29O,O9 or mere” (see S bti I 192$c )(3)(AJ). Section 184 provides that for all maes within the NCXTR. thfsrequwement will appiy to uibeakosd areas with a p p’alatIon in excess of OO9 Therefore, this requirement enuld apply to a smaller area wit a de gnatednooattaãtmeut. et ent er classiSed moo. If the State lateadapt the pre ram fur such enmea,the 179 m wo’jtd annhønl rth1hnt mt allpr- i dstha within thsNCfllkilaiosubmIa - SWkw VOCa shed pusmant t s’ioa48 bk1) B with voiced Is all the isthaSthiecitothis. ____ reqiairemenL aed theState does not coned the defr nry within 18 months, then.. pursuant to this rule the et sanction would apply in the entire StMo. Ifgmcaths la r the deitcieacy zeu in uncosrected. then the b1ghwa , sanction. would ppLy to all .1’ the -.. - nonat L eet ameafu the Stole. If there were ,no.dis ign t ad nenotlainmei s _____ within the Slate , the highway sandion. dnotapolyia thatSiate. • - The gd.fi.ittonsa m e ___ ii’ n Ive1j ! m anged fro n these in __ t 0 . ___ 3. edo 1 (c)i—Applicablllty -. - Section 5Z.3 1(cl establishes the applicability of the final rule. The portions off 5231(cJ setting forth the _______ - findings that frf pr the sanctions clock remain unchang.edas these portions were tsifr it directly from sections 179(a) (1)-(4) .Cenorally. these fincflngs aze thala Statebas failed to submit a required SIP or SIP element, has -submitted a SIP or SIP element that does not meet EPA’s completeness criteria. has submitted a SIP that is not approvabte. or that the State is failing to implement an app edS!P. The portions of §52.31(c ) imlicating the SIP u ,UtS to which this rule ______ applies have bee !! madffiett. ‘lire proposal indicated the rule covers any pavtl SIP or SIP rvvib uazequired unclertheAct ranypartO SiPor SR revision requfredbi response to a’ finding of substantial in acy under section 11o k)(5]. This section of thel final rule has been modified to cover only past DSIP and S W revisions and no! calls for pail D SIP’s or SIP revisions under section 11O k)f5 . The final rule does not cover part D SIP calls because of con iiic abou l apptyingsanrtians for Stale fafluzesto responcito such SIP calls following EPA nui cuftt t finding without opportunily fourotrce and comment SIP calls are iirrøntIy not subject to netica-aad aimmenr., The public and. affected sources musthe g vea notice and appathanity to coáment before SIP calls cea have binding effectas a result c ia section 179(a) finding that a Slate has (hued to submit a S W in response te.a SIP cafl Thus. if this rulerwere to apply teState failures to respond loSiP calls. mandatory sancffonsrau,LI apply wizhcrrtaaappectunily forsuch. - . comm t before now obligations - barrima limiting against eatzd sources. ‘this woLild be fnmneidpnt svith thaAPArnqj’irnn ofsertinn 553. Thereihre. as discussedin section. ILC.3., the fina l rule doesno& osmer part D lls.ThaEPAwi11da ie1op neihkarappco toeddroes calls pro ddlngaa ppaiv mfty w otico ond r mantbaiasemi a.d*tnry i ctii apply for eState blithe to sosporad SIPcaL,.. - .,,. 4. Section 5a3d1—&nction Application Sequencing. .; - Section 5231 (43(ljis the heart of this’ ruib In that It estab?k)we the order In. which the automatic snnrlions under section 1(alshaltappty SeveraT: • c?anfirmtionshavabeen mace to the.. sedion ‘ - . - - - One, s p IflflU affirmative EPA action tnstopnanction- ___ -• • section fl*) Endings. Including ’ nonsubiiifttal end iecosn il-I— . .ve . - findings. TheEPA’s. proposed and final sanction d i policypruv de s that. following findings of nons*nittal and leteness ariqw f ion ate- nennenPPw tOrmad land en , ___ - flO J( pz desthat iw ttu}is deemed complete if a thmplelauess findingis not medebyEPA within 6 months of EWs receipt of the plan. Under this clarification to §52.31(6). a SIP beccuuingcotnplete by operation of law wifleotbesirifirinuttostop a1 zq dr or for an area to avild sanctions. The’ EPA will need Is afflrrnMivety’d eteunine that the completein order lbr the s ndiuii to stop and any sanctions to he tilted. This policy clarification li henceforth govern what is required to sanction applies an the aonattainioen( area as well. In both cases the sanction applies only is the nosettoinment area. because that is the geographic woe. coveredby theAct reqalr ’n oh - -“SeU on i 2 lihfbies ‘eoeac uz eaearea re “an area d ‘ed’noiaita aineae 1th respect’to(an aIz?puflutan within the meaninguf -. secI o, ifirt - . - — , - - ------- Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 I Rules and Regulations - 39855 stop sanctions clocks and lift sanctions . substantial adverse environmental effect standards. Completeness reviews are Following findings of nonsubmittal and or could permanently foreclose use of only indirectly related to attainment and incompleteness, and the other section part D provisions such as sanctions. The maintenance of the standards in that the 179 findings. Prior to this policy EPA does not believe that . completeness review is not intended to clarification, in certain cases EPA did grandfathering these areas from this be review of theSlP’s adequacy to meet stop sanction clocks started by EPA policy clarification will have an the standards. Therefore, thern findings of failure to submit or imminent and substantial grandfathering of these SIP submittals incompleteness by SIP submittals being environmental impact given the limited from the policy clarification satisfies deemed complete “by operation of law.” number of area and given that the this exception as well. The EPA believes that thIs approach States’ submittals must be adequate to - Two, the phrase “affected area” has - was consistent with EPA guidance at the attain and maintain the relevant been substituted for “area.” This is to time and that it is appropriate to NAAQS beForoEPA can approve them. darify that the sanction only applies in grandfather these areas under EPA’s - in addition, this grandfathering does not affected areas, and not necessarily all grandlathering guidance. permanently foreclose the application of areas for which EPA makes a section The EPA believes that after . sanctions in these areas should EPA, 179(a) finding. (See the discussion of consideration of its grandfathering : - through rulemaking, find the SIP “affected area” under the definitions policy for SIP requirements 35 it is submittals inadequate to attain and section above.) Three, the second permissible to grandfather these cases - maintain the NAAQS and disapprove sentence regarding highway sanctions from this policy clarification. The EPA’s them.. . . has been clarified to provide that general grandfathering guidance The fifth exception provides that correction of the deficiency “forming provides that SIP revisions will remain action on a SIP revision which comports the basis of the finding” is needed to subject to the requirements in effect on with the revised requirements but not . stop the dock. This language is - the date that the State adopts the SIP the original requirements may be based consistent with the language included revision, provided a complete, fully on the revised requirements. In this in the proposal section 52.31(d)(1) for adopted SIP revision is submitted . instance, this is indeed the case;. the offset sanction Insentence I and promptly. generally.withln 60 days of conceivably, one or more of those SIP’s - donslstent with the Interpretation ‘-. the adoption. Since the policy . . deemed complete by operation of law . established in the preamble to thern clarification as effective by this action may have lacked one or more of the proposed rule at pages 512fl—51273. and all of the SIP submittals in question . elements needed for EPA to find a plan This revisioimerely clarifies what were adopted more than 60 days prior affirmatively complete. Nonetheless, - . deficiency needs to be corrected in to September 6, 1994, under this general EPA cannot fully approve a plan if any order to stop the sanctions clock. grandfathering, these cases are .- of the required completeness-elements .Finally, a new final sentence has been grandfathered. However, the guidance-- are lacking. For example, if a SIP , “ added to the ection. The sentence indudes several elceptions to the :.. submittal lacks compliancelenlbzvement provIdes that for clocks started by. - general guidance which must be :, ‘.strategies, one of tethnical elements. ., -, rulemaking actloñ (La., disapprovals : addreésed before an action is considered equimd for completeness, then EPA;..,.. -and findülgS of failure to Implement). by EPA to be grandfathered. ... ...... : could not fully approve the plan. . , , the dater of the finding starting the clock-- .The first exception concerns the:.-.. . Therefore;while EPA Is grandfatherlng. ‘ is he ffel Jive date” of the action, not -. intent of the policy not to grandMher these SIP submittals from completeness, . necessarily the date it is signed orthe SIP’s submitted hurriedly to aVoid new. EPA is not grandfatheniig these areas . ‘ .-date.it’Is published in the Federal - requirements. In the cases at issue, such “-tfrom having adequate SIP’s to attain and - Registet. Sin thedlsapproval or -. action has not occurred on the part of Th maintain the standards; .. - . finding of failure tb Implement is not’ the State since the States have received ... The sixth exception raises a concern ‘ . ‘effective until the ’effectiv date” of the - no early, formal notification-that the asto whether grandfathering the SIP ’ - flnaiaction the sanctions’clock’should sanction clock policy is being cIarifled from the requirements hi question not startuntil uch action is effective. - -. in the manner it is today. -.. .‘-‘, - - ;-would-render the SIP as iwhole ‘-,‘ - -. Upon further reflection,’EPA . Thesecond exception to general. . - .r .. substantially inadéquate. ‘- r - .. determined that the clarification should guidance on grandfathering concerns.,c;-. Grandfathering these SIP submittals - beinctuded In-the rulein order to situations yihere a court ruling has : ‘ from this policy doesnot raise direct - ‘ensure that the.public is adequately explicitly changed a current Federal’ r . concern that doing so might render the’ ‘ ‘apprised ‘of when the sahctions clockS: requirement or has convinced EPA that-; ‘SIP’s substantially inadequate since the “has started fOrparticular areas based ha - a previous requirement is no longer j --- .: - completeness review Is not a review, a rulemaking actlon. . ‘ ‘ ‘ supportabte. Here no such court ruling- .‘ intended to pass judgement on the .“-. . The EPA ha,s revised thefin rule to is at issue so no exception should be .... -- adequacy of SIP’s. Rather, it is intended ..add new sections § 52.31(d)(2), (d113), made in this case. -.--- - - -‘ . ..as a straightforward exercise to - - - and (d)(4): In response to comments, -: The third exception is that the - -‘-- determine whether the SlP’ contain all these sections incorporate a,revision Administrator may determine that - the technical and administrative.. , 7 made tbtherule.conceming how and grandfathering is not appropriate under - elements to warrant further review. As -when sanctions, not yet applied, may be, a new policy. In this case, the -. . - discussed above, if any of these SIP - - .deferred and sanctions, already applied. Administrator is determining that - .. submittals deemed complete by - - - miy be stayed.-A complete discussion of grandfathering is appropriate. -‘ - - operation of law lack any such - -. the revisions is set fórth in section’ The fourth exception indicates that elements, then such deficiency will be 11.8.3. above. These corrections concern grandlathering is not appropriate if it - reflected in EPA’s determination as to the circumstance whOre EPA has - would have an imminent and - - the SIP’s adequacy to attain and . “ disapproved a required submittal or - __________ - maintain the air quality standards. -- where EPA has found that a State has ‘ 3 See “Grandlathering’ of Requirements for - The seventh exception concerns - . failed to implement an’approved SIP.’ c rtain c!asses of changes which are -Sections 52,3 1(d)(2)and 52.31(d)(3) set June 27, 1988. This memorandum has beenenrered . only indirectly related to attainment and forth language concerning disapproved - in the docket for this rulemaking . maintenance of the air quality - SIP’s and § 52.31(d)(4) sets forth the ------- t985b Federal Register I Vol. 5 . No. 149 / Thursday. Augnst. 4. 19 / Rules and Eg cn angi aga segardiegcases. where EPA h na deaflnaLflndingoHaiarete - o pIø Foi-purposesef an initial Iappaa aL Os annutial finding of ete plemeat far whith EPA. iubsequently prop a positive in og aid issues 50 intedse fl.eal nile ndingtha&theState has carrected the feflciency. any s ’tsi nainsulling.fr cIes that iqu wilL bedeferred and my saac$ionsihet have beea appt!âed v áU bega 1reL ( pjuovol w ufdamtinueaay slap as deferral thairasalted from a proposed conditional appacwaL).This change prouidingforestepasdefernalei ranctioas doss net change the male’s req me$ that cue and sanctioaadecks.are n pannaneatI stopped until EPA issues a final felL appnivalos e i atha&a Staten implementing its.S IP. A.aaw §5Z.31 dU5 hasbeea. added which reaffirms what EPA actions are n& c ty for tha mandatory sanctions. procoss.to pllrm ThAnt1y cease. SpedficalLy 1tproiz that any sanction cinch vdJLba p,rn1nn aLy stopped and thin applied, stayed or deferred will be permanentLy lifted upon a w1 E P&fln&ngtha$ the deficiencp f r ingth.basLs of the - finding has. been corrected. Far a senctioaa cl..ck and applied. sanctions based on a finding of failure losnbreit or h .pfateae .a finding that the - , l ffr a .i r h basacoimctarLwilL.cxu, by letter n EPA tegovasner..f s a dockctapplin4 stayedee - —— — or deferred i bas crea a lading lnanimplemeatations eflndingthat the defl’ 4 —”y hasbees, eorrectockwill ostb.oug)t final notice in the Federal Register finding Lhattbe.Stot. is thprowedS lP.. • on 52.31(d)( Jis essentieILy unina pdfrore S52.3 .t(d)t Lotthe proposed aida -This section . reakes clear that EPA may take rulemaking action in any specific dwimstance to reverse-the order in which sanctions will beap$ied under se i n 179 (a) .. In other words. EPA can takam emakingactioni sothe the highway wxndd appl yafter lB months. and tbeeffset sa .ion.& months thereaflaL two mimer, nonsubstanti changes were made. FIrsLEPA repisr ed the phrase “the E pA” with”theAdministcatar. ’ Seceerl, EPA changad the. torn . to. “shall’ to- mere firmly- reflect the.mandatäry nature of the sanctions proposed role. The EPA has c1 fied the applicability oFtha offset sanction to PM—b precursors, modified the rule for PM-1 and w.uu - dar fle eIa w 6 e in the rule regarding the pollutant applicability of the o et sanction when the SII deffdeucy-hz questi on is not specl&to a polTutantor pollutants. A disn’c4on ofthese changes in the context oftha specific sections follows. The EPLhasravi d § SZ.3e)rIJtJlin — Fh* EP moved .the o w iAroa table frmn the rule - and . cIdadtupmvfdethepubflc In Ofl ouereasthat will be pohw’ff Wysubiect to sthictlons In a separate Federal egister notice. ft mi&na clear elsewhere-In this para&apb end the rule, the sanctions autoinat caUy apply lathe timeframes prescaibed under I 5Z311d7. unfres .EP& determines that the State has corrected the relay utSWdeflciency Ibrmfngthe basis of the !ndfng The EPA news intended thaf’ for i otareaa faa table iu.this.rub o be n y fbr sen ons to apply aufnm ti fly.1be saxictionam lhase lecteLtedoso through notices lathe Fil.r l Regicte ‘ ratheribaaIhrnmagJt atable .thabod 1 . oftharofa.Subchinfively,thereisnn. illf ri .ni in tha sanss that areaswill. - lace inosTa the tfmeframes - pr ti ’ i d ILndQr 5 52.314d1 r gptdIessaf whether they am1i ied in a table in the rule or listed na.sepezateaotice. Second.EPA as .addedthe bi . “in - the twiof m pmscsibed under - — - § 52.31(dloflhis .sedion.oa those affected areassubject under § 52.a1(dL to - the offset sanction of this section..” As - noted above, sancticimapply automaticalLy TogeAiIass .of whether. themisa tablefn the rule listingtbe. areassubject ctioris.Tha this change wasma4ato make itclearthat the sanctinosapp1 within the time frames set ferthin §saal(dkIe further darity isp th4..asecond change to—. proposed §5 .31(e) tl(iJ . was to delete “following’ in theclausereferencing prep .31teUI)Lil bys tket - olisets inastbeanhiavedfiar po aedila la) 1 ner isfe, which the fl- s 1 u, EP&basm 1 i& the L of propo e the final rule athhas ,ed the resE’—- ’—— ofp posed § 31(e tI) e tci fl § 52.31(eX) . The L.i&cermw - localedeoth. sececièem’.’ .i - if Ihematarijiag C _ j Innatrpe . toansce - pallnfatds2nèthele precursor apply tool poll it i&asielewa their pen - .-fotwltichthe ases is — subject heeawsouz re . —-- ..erit of 173 of Act Ser sa . -. ILB.2. for fu d -.s—-.o1polMael appli iky alibi i.imikl app’y toany erea - -- -’ - ----- ‘S. - un dJththi . she saWeclef the finding. ; •.. - - In -.. - now piaukl t the.. hvim . .;i - o nt s c a appi s’wi the - specified in § 53 .31tdk .ere.the the rule n taincan.t-1. . It .s - table f2 thet4hs asi ealemersron - - - redut osn . .In .i d ishalL be 21:e.d(3)thetthee t tInshatt ap to reemosa r- a - - theirprei raG r— 52.3*) - finding anado C, bell pefhitsnts.. - and forw&iieh the ewe is sub jeci to the new so eaquirumeat of section 173 .fthaAc*if the finding was net ._-: •. - TheEMirass flak new “ - - - § 52.3l(ellt)Ili)tospeciflcallyaihI the isse. of fl i&n me4wjth anpacs to ozone and itatwo and N&, This was disczrssed generally in the p . .. ..nJ tnthapooposed r page 51276, b ote 1 , although i specific language was included. lxii proposed rate. The Ast tabtishes requirements- fbi ozone- nonattainmemit - - . amas , seine of which. are specik fèr. - either VOC or NO Howo ,snmco she -. 5 Section 5p2.3 .1{e)—Available Sa ns tire o et satin for pot1 re s.awl their and. Methods for Ithplementotioa - - pr The reasenfre this changem Section 52.3r(e) sets forth the two beC e the table has teen deleted amid sanctions that are-applied by section thus no e.wi1ibe Iid v ( The list 179(e ). Thin rile as did the sentesceofg5a3*)(1)(s) rule. interprets in greater dctuil the thSZto t cdfsetabn offset achieved forthepellutastorpoUntanes 79fMf2). Ul - Regarding § 52.3Ife)( ’1) applicability of theoffset sanction, there havebeen of tlasrssae,seesI !Pl4 afi.B.3.) several changes that are nteuded o- The EPA has edd da .-’ 5nn e .r 10 § 52.3i(e3 J . T sente is pamtialkydeaiuakhemS52.3*1Wt1r ______ ____ of the propose&nmle. The a _ rp eed moving this atmmewas to.alheiate redundai .e. the proposed rala-The ____________ first seatononal prçncI - ____ § 52 31Wlt ie) appeared ta uvIen ”- ’—- ’— ait.n i - - V. appaovaLafindtra tha& the deficiency bae.beencorrected will ancer tbzreagh s.lnaIn inthefedeea& - Register fel ppseuiag the revised . u peeu wunaa irmma’ ’ vue For a 4tcleckariOulied, staved as poasihia nn R1 tbatmay face ------- Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 F Rules and Regulations 39357 general assumption is that both - document located in the docket. EPA selection rulemaldng, the offset sanction prec irsors are critical to ozone has determined that the offset sanction begins to apply on any areas for which formation, EPA believes that even should have immediate effects in the sanction clock has elapsed on though.a finding may be specific as to .. affected areas. Septemberfl, 1994 To understand the one ozone precursor, the offset sanction Section 52.31(e)(2) of the final rule - -liming of the application of mandatory should apply for both precursors. sets forth the highway sanction. Several sanctions in these cases, it is first However, there are two exceptions to revisions have been made to this necessary to darify the discussion in the this general requirement, both of which - section. As with § 52.31(e)(1)(i). EPA proposal at p.51274 on how the- are based on the Act. First, affected has removed the highway sanction table sanction clocks function under section areas that are designated nonatt ilnment • from §52.31(e)(2) of the proposed rule 179(a). - for ozone but that are not classified as for the same reasons discussed above for . Section 179(a) sets up two distinct marginal, moderate, serious, severe or why the offset sanction table was sanction clocks. The Act states that if extreme, are not re4uired to achieve removed. Similarly, § 52.31(e)(2) the State does not correct the deficiency off ets under section 173 for NOx. The includes new language that directly within 18 months after a finding, one of second exception is for affected areas refers to the timing provisions of the two available sanctions shall apply, that have received a NOx exemption § 52.31(d). As with the similar revised as selected by the Administrator. It then from the NSR requirement pursuant to language In § 52.31(e)(l)(i), this is provides that if the deficiency has not section 182( 1). These two exceptions merely to darify that the highway J)een corrected within 6 months and the rationale for them are discussed sanction applies with respect to the thereafter, then both available sinctions In section ILBi. above. A new times set forth in that subsection, even shall apply.1he EPA interprets this to § 52.31 (e)(lliili) sets up a similar though the area is not listed in a table mean that the second sanction always provision with respect to PM—li) In the nile. In addition, a new sentence follows 6 months from the actual precursors, which is also discussed in has been added which specifies that the application of first, regardless of more detail in section ILB.2. above. highway sanction only applies to. . whether this would cause the Section 52.31(e)(1)(iv) of the final rule a d azeas that a else - - application-of the second sanction to be has merely been renumbered. Section, noiattiiinment areas. Although this delayed beyond 24 months from the 52.31(e)(1)(iii) of the proposed rule issue was not specifically addressed in date of the finding. Therefore. on previously contained these the proposed rule, the proposed rule - September 8, 1994 the offset sanction- requirements and substantially remains and the reamblo to the proposed rule shall apply on any area(s) for which an unchanged. The preamble to the. . referrotfliack to the section i7g(b)(1) . 18-month sanction clock has elapsed proposed rule at page 51276 provides highway sanction requirement of the and EPA has not detennined that the that this section requires States to apply Act (58 FR 51274,51279; § 51.32(e)(2) of State has not corrected the deficiency. the offset sanction consistent With ‘the proposed rule.) Section 179(b)(1) Both sanctions shall then apply 6 amended sectIon 173, regardless of. states that itihe Administrator may months from that date if EPA has not• whether the State has approved NSR Impose a prohibition, applicable to a determined the deficiency rules consistent with section 173 - - nonatuitnment aroa * .“ Therefore, corrected by ( ,; .-- . requirements. The purpose of this - - -. EPA is Incorporating this language. ‘ The EPA- intends to notify States of - urovision Is to ensure that States that- -’ which was merely referenced th - the-application and removal of section - - have been delinquent In meeting the . NSR requirements of the amended - - projiosed rule, Into the final rule. - -. 179 mandatory sanctions (as provided for in § 52.31(d) of this rule) before they - are not benefited by pplying sanctions - IlL Implicaticea of Tpday’s Pnt.m ildng apply. In addition;- In its actions on in accordance with NSR rules that A. Implementation of the sanctions - subniittals recefved after a section - 179 (a) finding. EPA will indicate what - more lenient than required by. the Act or - by the absence of NSR requireme its - - Section 179(a) provides that unless - -. the effect of its action is on the - - within the State. Under this section: -- the deficiency prompting the finding :- sinctions clock and sanctions -‘ - - therefore, all affected areas subject to . .4i.e.; nonsubmittal. disapproval. and - - application; Thö following diser ssion - - the offset sanctions would be subject te- - - nonimplementation) has been corrected explains how this will occur, first’ similar requirements in achieving those. 1i Periods pmm - sproviding the examples where. prior to offsets, as specified in the amendedA therein one of the sanctions in section 18 montbs,-EPA finally detennines Section 52.31(e)(1)(v) of this ‘. -. 179(b) “shall apply, as selected by the - whether the State has corrected the - unchanged from § 52.31(e)(iXv) of the - Administrator.” Under this final rule, - deficiency prompting the flndhlg,añd proposed rule. The purpose of this •- - - - sanctions will apply automatically In - then providing examples where EPA provision is to establish when the -- - - the sequence prescribed herein in all - finally determines the deficiency has increased offset requirement will be . Instances in which mandatory sanctions been con-acted after month 18. -: -. applied. As noted in section ILB.2. - - -. are applied under section 179(a) - - - - In the cases where, prIor to 18 above, EPA received numerous -, - - following findings under section - - months, EPA completes its action comments on this issue. For purposes of. 179(a)(1)—(4) for part D plans or plan - - determining that the State has corrected applying the offset sanction, EPA had - revisions that EPA has already made or the section 179(a) deficiency, sanctions’ - some flexibility in determining what that EPA will make In the future, except would not apply. The following two permits would be subject to the - - when EPA. takes a separate action to examples address instances In which - increased offset requirement. As noted -reverse ihe sanction sequence. However. EPA finally determines within 18- - in section II.B.2., numerous commenters if thesanction clock has expired for any months of the finding that started the suggested other possibilities. For’ - findings before September 6, 1994, no sanctions clock whether the State has example, some suggested that the - - sanction has yet applied since EPA corrected the defldency and how EPA’s increased offset ratio only apply to interprets section 179(a) to provide that action finding the State corrected the permits for which an application was - -- sanctions shall not apply until EPA ‘ deficiency affects the sanction clock. received after the date the offset.. ‘. - makes the sanction selection through .‘ - ‘In the case where, within 18 months sanction applied. As stated more fully noticeand-comment rulemaking. Since - following a finding of nonsnbmittal or in the detailed response to comments ::- this action constitutes the final sanction - incompleteness, EPA determines - - ------- 39858 Federal Register / Vol. 59, No. 149 I Thursday, August 4, 1994 / Rules and Regulations whether a State’s SIP submittal corrects the deficiency prompting the finding (i.e., is complete or incomplete), EPA will Inform the State of whether the sanctions clock ii stopped when it sends the completeness or incompleteness letter to the State. If the SIP submittal is incomplete, then the letter will indicate that the sanctions clock continues and that automatic sanctions will apply as prescribed by this rule, if the SIP submittal is complete. then the letter will indicate that the sanctions clock started by the prior finding of failure to submit or incompleteness permanently stops. In the case where, within 18 months followingi SIP disapproval or finding of noniniplernentation, EPA determines whether theState has corrected the deficiency prompting the finding (i.e., whetherthe SIP is approvable or whether the nonimplementation deficiency has been corrected), EPA will indicate whether the sanctions clock is stopped when it takes final rulenviking action on the SIP if EPA finally disapproves the SIP or finally determines that the nonimplementalion. deficiency has not been corrected, then the Federal Register action will indicate that the sanctions dock continues and that automatic sanctions will apply as prescribed by this rule. If EPA finally approves the SIP or finally determines that the nonimplementation deficiency - has beedoonected. then the Federal Register action , wIli Indicate that the sni rtIons clock started by the ior ‘dlsap’proval .or finding of noniinpleinantation pennanentl stops. The following examples address how, - - following the sectIon 179(a) findings.. .theStateswl l lbekeptinfo rmedwhen EPA’s actions on revised SIP’s are not completed within 18 months of the finding’s deficiency. As provided in this ruleat §52.31(d)(1) through (4), in explaining how the States will be kept -- • informed, these examples address sanction removal, as well as sanction - defenal and staying... — - ‘. - In EPA interim final determinations. thattheStatehascorrectedthe . -. - deficiency, issued simultaneously with — EPA proposed approvals and proposed.. findings that States are implementing - - their SIP’S (after EPA SIP disapprovals or findings of nonimplementation), EPA intends to notify interested parties, - “As discussed above in sectIon 11.8.1.. proposed approval (or a proposal that the nonimplementation deficiency bad been corrected) Following a SIP disapproval or nonlmplementatlon finding has the effect of deferring and/or staying the application of sanctions. In this case, though, such proposal action would not haveadererral and/or stayingeffect because It is assumed (for the purposes of this example) that EPA completes final rulemaking’ action on the Sip within 18 months. including States, of any deferral or staying of sanctions that will result from Federal Register actions proposing to approve SIP’s or to find that the State is implementing its SIP, as provided for in § 52.3 1(d)(2), (3) and (4) of this rule. In these cases, EPA will also indicate to all interested parties whether sanctions are removed, apply or reapply when it takes subsequent final action on the plan in the Federal Register. If subsequently EPA’s proposed positive finding is reversed, then in that action EPA will indicate that sanctions apply or reapply, as appropriate, and what sanctions, if any, apply subsequently. If EPA subsequently fully approves the revised plan, then in that action EPA will indicate that the sanctions clock permanently stops and that any sanctions previously applied due to the original disapproval or finding of failure to implement are removed. In addition to these letters and Federal Register actions, the EPA will also periodically publish notices in the Federal Register in which EPA will, provide the public with Information on areas for which EPA has made findings • and whith, therefore, are likely to be subject to the offset and highway if removal, staying. or deferral of sanctions is warranted, EPA will similarly provide the public with. information that sanctions have either been removed, stayed or deferred in the area. Finally, to supplement the various letters and actions discussed abdve, EPA will provide Information on the status of sanction 12 findings on EPA’s Technology Transfer Network (‘l7N). B. Areas Potentially Subject to Sanctions . The EPA has made section 179(a) findings of failure to submit and incompletenás for numerous submittals due under the amended Act. As explained in section ll.C.5 above, EPA has elected to provide the public with inforelation on areas potentially subject tosanctionsinaseparatenoticethat - appears in the notice section of today’s Federal Register rather than in tables in today’s rule, Therefore, for further information on areas likely to face “ In some cases, the letter and/or the action may be omubined with another action relating to the submittal. For ercainpie. if Following a disapproval EPA proposes toapprovea SIP at month 20 after the offset sanction is in place, the Interim final determination Issued simultaneously with the proposed approval action would also serve tq notify the public that application of the offset sanction has beenstayet - -. ufle TrN Is EPA’s bulletin hoard system for - making air quality information available to interested parties. For questions on what information is available on the TI’N and how to a It. contact the systems operator (919) 541— 5384 - .- ‘ S — , sanctions on September 6, 1994 see other notice. N. Miscellaneous A. Executive Order 12866 - Under Executive Order 12866 (Order), (58 FR 51735 (October 4,1993)) the Agency must determine whether the regulatory action is “significant” and therefore subject to the Office of Management and Budget (0MB) review and the req)lirements of the Order. The Order defines “significant regulatory actions” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector.of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interface with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or thetights and obligations of - recipients thereof; or (4) raise novel or policy Issues arising out of legal mandates, the President’s priorities. the principles set forth In the Orde Pursuant to the terms of the Orde 0MB has notified EPA that It considers this a “significant regulatory action” within the meaning of the Order. The EPA has submitted this action to 0MB for review. Changes made in response to 0MB su estions or recommendations. - will be documented In the public record.. B. Regulatory Fl exibility Act’ = - 1.Proposa l The proposal includes a discussion of the impact.of the rule on small entities at pages 51277—8. The regulatory fle dbility analysis (RFA) (5 U.S.C. 600 etseq.)requiresFederalagenciesto. identify potentially adverse impacts of • Federal regulations upon small entities. Agencies are required to perform an RFA where the significant impacts aie possible on a substantial number of small entities. Small entities include small businesses, small not.for-proflt enterprises, and governmental entities with populations of less than 50,000. Because this action will have some impact, an initial RFA was prepared pursuant to EPA guidelines, which has been pliced in the docket to this • rulemaking. For the following tin reasons. EPA believes the impact rule on small entities will be limited. First, any impact that may occur from the offset sanction is limited to sources defined as “major” for nonattainment ------- • .... Federal Register I Vol. 59, No. 149 I Thursday, August 4, 1994 / Rules and Regulations 39859 ISR purposes, generally 100 tons per RFA has been prepared pursuant to EPA and recordkeeping requirements, and ed (TPY) or more of a criteria guidelines, which has been placed in Sulfur dioxide. ollutant, except in the more serious the docket to this rulemaking. Dated: July 21, 1994. izone nonattainment areas. The major ources most likely to also be small C. Paperwork Reduction Act Carol M. Browner, Administrator. ntities as defined pursuant to the RFA This rule does not contain any ire in these more serious ozone areas information collection requirements For the reasons set forth in the vhere the major source TPY threshold which require 0MB approval under the preamble, part 52 of title 40, Code of as been lowered under part DoE title Paperwork R duction Act (44 usc. Federal Regulations, is amended as sel of the Act. Second, the amended Act 3501 et seq.). forth below: ilso increases the nonattaInn ent NSR When the offset sanction applies, PART 52—APPROVAL ffset ratio in the ozone nonattainment sources subject to it will not incur n PROMULGATION OF trees. The ratio ranges from 1.1101 to additional information collection IMPLEMENTATION t s 1.5-to-I, depending on the severity of burden because sources are already he area’s classification. Thus. any required under the section 173 offset . 1. The authority citation for part 52 is impact the 2104 offset sanction will requirements to obtain an emission revised to read as follows: ave may nOt be as significant in offset from between i-to-land 1.5-to-i. AidhwitT 42 u.s.c. 740a-Thllq. precisely those onone nonattainment When the offset sanction applies, it nuns where small entities that ° should not impose an additional Subpart A—(Amandedj major sources are most likely to exist. ‘ information collection burden because rbizd.asstatedabove,theonlyrelevant sourceswillnothavetoprovideany 2.SubpaflAiiamendedbyaddinga new § 52.31 to reed as follows: impact period is 6 months in duration,. information In permit applications - . - since after that period the State will . beyond that which is already required §52.31.. Sefecflonof asqusoseol either haVe become subject to both. in the absence of the sanction. (1?or the mandatory sanctions for findings made sanctions or have corrected the information collection burden of new - pUrsi flt to sactiOfi 179.1 the Clean Al, deficiency and been relieved from any equinm of the amended Act for Act. sanctions, ‘- nonattainment NSR and prevention of (a) Fwpose . The purpose of this 2. Comments - . . - sig is fi t deterioration, an Information. section Is to Im lemant 42 U.S.c. collection request is being prepared to 7509(a) of the ACt,WIIh respect to the Section 11.8.1. of this document -. ‘ support rulemaking changes to pasta 51’ sequence in which sanctions will includes several co” ’ ents concerning the Impact of the proposed rule One and 52.) -‘ . ‘automatically apply under 42 u.s.c. additional comment Is summarlznd When the highway sanction applies. 7509(b), following a finding made by the the Secretary of DOT is required to, - Administrator pursuant to 42 U.S.C her1 eMnmenterstat;s•that determine which projects or grants . lowering of the major source threshèld - should not be affected by the sanction (b) Definitions. All terms used In this under the Act exposes many more small’ and which, therefore, e t.mis section. but not spem lly defined sources to control and the likelihood of - determination will be based on.’ , herein, shall ha the meening given them In §52.01. . ‘. - sanctions. The cominenter believes that information readily available in existing - (1) 1990 Amendñsè its m. i c the 1990 many such small sources are small. : documentation gathered for the purpose endments to the Clean Air Ad (Pub, businesses and.Uut, contrary to ‘ . ‘: of evaluating the nmital, social. L No.101-549,104 Stat. 2399).. analysis in the proposal, an increase in - and economic impacts of diff ut . - ‘‘ t2J Act means Clean Air Act, as the offset ratio of 0.5 could have a -.:.,.‘ alternatives for transportation projects.: amended in 1990 (42 U.S.C 7401 of seq. significant Impact on the ability bE - -- -These analyses are required for the, ‘ (1991)). - — .‘ . ‘ - “: businesses to find adequate offsets.’. - ‘preparation of environmental - - - - “ (3) Affáted area means the neewecments and impact statements r ge aphic subject to or covered by 3. Resp se ‘ • under the Natiimnl EIIVIIOflJImfltaI ‘ ‘ the Act requirement that Is the subject The EPA believes that thi final’rule Policy Act (NEPA), (42 U.S.C. SeC. 4321’ of the finding and either, for purposes will have some impact on smaU entities. .. et seq.). Historically, exemption , “ of the offset sanction under paragraph The lowering of the major sourm. .. - , -determinations by DOT for sanctions .. (e)(I) of thiisection and the highway threshold could expose more sources to ‘have been based on such NEPA sanction under paragraph (e)(2) of this the offset sanction. The EPA does not, documentation and have not -- ““ ‘section. is’or is within an area disagree that in individual cases an -. - n ccitated additional information “. designated nonattainment under 42 increase in the offset ratio could have a gathering andanalysis by the States. in U.S.C. 7407(d) or, for purposes of the significant impact on a small business.’ addition, since under NEPA final “ - :‘- offset sanction under pwt rgtuph (eli) of However, EPA believes that the impact. environmental documents must be -‘, - this section, is or is within an area of this rule on small entities will be .‘- approved by DOT, in most cases the. otherwise subject to the emission offset limited for the second and third reasons - NEPA documentation will already be in - recruirements of 42 U.S.C .7503. - discussed above. Additionally, EPA ;.. DOT’s pc esaion. Therefore, EPA does . (4) Criteria pollutant means a notes that the impact of this nile will , not believe that the highway sanction-, - pollutant for which the Adntinistzator also be lessened by the provision in when applied, will impose an . . has promulgated a national ambient air final rules that provides.for the deferTal additional information collection - quality standard pursuant to 42 u.s.c. and/or staying of the application p1 burden on the States. --. ‘ 7409 (i.e., ozone, lead, sulfur dioxide, sanctions in certain instances when EPA particulate matter, carbon monoxide, believes it is more likely than not a List of Subjects in 40 R Part - nitrogen dioxide). deficiency has been corrected (see . - Environmental protection, Mr ‘ - , (5) Findings or Finding refer(s) to one discussion in sectiouiLB.3. of this’ -. . pollution éontrol, Hydrocarbons. -- ‘ - ;: or more of the rmdingn, disapprovals. document). However, because this. ‘.-..‘ - Intergovernmental relations, Nitrogen - . and determinations described in action will have some impact, a finaL - dioxide, Particulate matter,Reporting subsection 52.31 (c).’ - ------- :s9860 Federal Register I Vol. 59, No. 149 I Thursday, August 4, 1994 / Rules and Regulations (6) NAAQS means national ambient when the Administrator makes a finding air quality standard the Administrator under paragraph (c) of this section has promulgated pursuant to 42 U.S.C. unless the Administrator affirmatively 7409. determines that the deficiency forming (7) Ozone precursors mean nitrogen the basis of the finding has been - oxides (NOJ and volatile organic corrected. To further implement 42 compounds (VOC). U.S.C. 7509(a). the highway sanction - (8J Port D means part D of title I of under paragraph (e)(2) of this section the Act. . shall apply in an affected area 6 months (9) Part D SIP or SIP revision or plan from the date the offset sanction under means a State implementation plan or paragraph.(e)(1) of this section applies, plan revision that States are required to unless the Administrator affirmatively submit or revise pursuant to part D. determines that the deficiency forming (10) Precursor means pollutant which the basis of the finding has been is transformed n the atmosphere (later corrected. For the findings undei in time and space from point of paragraphs (c)(2), (c)(3)(ii), and (c)(4) of emission) to form (or contribute to the this section, the date of the finding shall formation of) a criteria pollutant be the effective date as defined in the (c) Applicability final action triggering the sanctions This section shall apply to any State clock. in which an affected area is located and (2)(i) Notwithstanding paragraph for which the Administrator has made (d)(1) of this section, to further one of the following findings, with implement 42 U.S.C. 7509(a), following respect to any part D SIP or SIP revision the findings under paragraphs (c)(2) and required under the Act: . (c)(3)(ii) of ibis section. if the State has (1) A finding that a State has failed, submitted a revised plan to correct the for an area designated nonattainment deficiency prompting the finding and under 42 U.S.C. 7407(d). to submit a the Administrator, prior to 18 months ,lan,ortosubmitoneormoreofthe fronitheflnding,hasproposed tofully. elements (as determined by the or conditiotially approve the revised Administrator) required by the - plan and has Issued an Interim final’ provisions of the Act applicable to such determination that the revised plan anarea,orhasfa lledtomakea . . correctsthedefic lencypromptingthe subinissloá for such an area that finding, application of the offset satisfies the minimum criteria sanction under paragraph (e)(1) of this established in relation to any such . ‘ section shall be deferred unless and element under 42 U.S.C.7410(k); until the Administrator proposes to or (2) A disappreval of a submission . takes final action to pp the plan under 42 U.S C. 7410(k), for an area. in whole or In part If the Administrator • designated nonattainment under 42 . issues such a proposed or final -:“ U.S.C. 7407(d). based on the . • disapproval of theplan. the offset submission’s failure to meet one or more sanction under paragraph (e)(1) of this of the elements required by the - section shall apply in the affected area: provisionsoftheActapplicabletósuch onthelaterofthedatethe: an area; - - . . ; ‘. - . . . - .• . .. Administrator Issues such a proposed or (3)(i)Adetermlnatión that a State has final disapproval, or 18 months .. . failed to make any.submission required following the finding that started the under the Act other than one described- sanctions clock. The highway sanction under paragraph (c)(1) or (c)(2) of this under paragraph (e)(2) of this section section. including an adequate . - - . shall apply in the affected area 6 months maintenan plan, or has failed to make after the date the offset sanction under any submission, required under the Ad. paragraph (e)(1) of this section applies. other than one described under . unless the Administrator determines paragraph (c)(1) or (c)(2) of this section, that the deficiency forming the basis of- • that satisfies the minimum criteria - the finding has been corrected established in relation to such .. , -. (ii) Notwithstanding paragraph (d)(i) submission under 42 U.S.C. . . . .. of this section. to further implement 42 7410(k)(1)(A); or — - -. U.S.C. 7509(a), following the findings .(ii) A disapproval in whole or in part . wider paragraphs (c)(2) and (c)(3)(ii) of of a submission described under. this section, if the State has submitted’ paragraph (c)(3)(i) of this section; or - a revised plan to correct the deficiency.. (41A lnding that any requirement of prompting the finding and after 18 but an approved plan (or approved part of before 24 months from the finding the a plan) is not being implemented. -, - Administrator has proposed to fully or (d) Sanction Application Sequencing conditionally approve the revised plan (1) To implement 42.U.S.C. 7509(a). and has issued an interim final . - . . - the offset sanction under paragraph. determination that the revised plan (e)(1) of this section hall apply in an corrects the deficiency prompting the affected area i8 nonths from the date.• . finding, application of the offset- sanction under paragraph (e)(1) of this section shall be stayed and application of the highway sanction under paragraph (e)(2) of this section shall be deferred unless and until the Administrator proposes to or takes final tion to disapprove the plan in whole or in part lithe Administrator issues - such a proposed or final disapproval of the plan, the offset sanction under paragraph (e)(1) of this section shall reapply in the affected area on the date the Administrator issues such a — proposed or final disapproval. The highway sanction under paragraph (e)(2) of this section shall apply in the affected area on the later of 6 months from the date the offset sanction under paragraph (e)(i) of this section first applied in the affeded area, unless the Administrator determines that the defidency forming thebasisoftheflndinghasbeen corrected, or immediately if the proposed or final disapproval oauzs more than 6 months after Initial application of the offset sanction under paragraph (e)(1) of this section. - (iii) Notwithstanding paragraph (d)(i) of this section, to further Implement 42 US.C. 7509(4. following the findings under paragraphs ( X2) and (c)(3)(ii ) of this sect lonif the Statehassubmitte — a revised plan to correct the deficien prompting the finding and more thai months after the finding the Administrator has proposed to fully or conditionally approve the revised plan andhasIsiuedaninterimflnal determination that the revised plan corrects the deficiency prompting the finding, application of the offset sanction under paragraph (e)(lTof this section and application of the highway. sanction under paragraph (e)(2) of this sedlon shall be stayed unless and until the Administrator proposes to or take&. final action to disapprove the plan in whole orin part. lithe Administrator issues such a proposed or final -, - disapproval, the offset sanction under paragraph (e)(i) of this section and the highway sanction under paragraph (e)(2) -of thiisection shall reapply in the - affectecFarea on the date the - - . - Adininistratorissues such proposed or final disappmvaL -. - - . - - (3)(i) Notwithstanding paragraph (d)(i) of this section. to further- implement 42 U.S.C. 7509(a) Following-. - the findings under paragraphs (c)(2) and (c)(3)(ii) of this section, if the State has submitted a revised plan to correct the deficiency prompting the finding a ” the Administrator, prior to 18 mor from the finding, has conditionall approved the revised plan and har issued an interim final determinatior that the revised plan corrects the - deficiency prompting the finding. ------- Federal Register. I Vol. 59, No. 149 I Thursday , August 4, 1994 / Rules and Regulations.- 39861 application of the offset sanction under paragraph (e)(1) of this section shall he deferred unless and. until the conditional approval converts to a disapproval or the Administrator pioposes to or takes final action ta disapprove in whole or in part the revised SIP the State submits to fuifi ii the commitment in the conditionally- - approved plan. If the conditional approval so becomes a disapproval or the Administrator issues such a proposed or final disapproval, the offset sanction under paragraph (e)(1) of this section shall apply in the affected area on the later of the date the approval becomes a disapproval or the Administrator issues sucI a proposed or final disapproval, whichever is applicable, or 18 months following the finding that staited the sanctions clock. The highway sanction under paragraph (e)(2) of this section shall apply in the affected area 6 months after the date the offset sanction under paragraph (e)(1) of this section applies, unless the Administrator determines that the deficiency forming the basis of the finding has been.corrected. (ii) Notwithstanding paragraph (dKl) of this section. to further implement 42 U.S.C. 7509(a), following the findings under paragraphs (c)(2) and (c)(3)(ii) of this section, if the State has submitted a revis d plan to correct the deficiency prompting the finding and after 18 but. before.24 months from the finding the, Administrator has conditionally approved the revised pian and bai. . issued an interim final determinationl; that the revised plan corrects the... deficieiicy prompting the finding. application of the offset sanction under pyragraph (e)(i) of this section shalibe, stayed and application of the bighway sanctiol)ünder paragrapli(eX2) of this. section shall be deferred unless and - until the conditional approval cOn’verts to a disapproval or the Administrator. proposes to Or takes füial action to disapprove in whole or in part the revised SIP the State submits to fulfill the commitment in the conditionally- approved plan. If the conditional approval so becomes a disapproval or the Administrator issues such a proposed or final disapproval, the offset sanction under paragraph (e)(1) of this section shall reapply in the affected area on the date the approval becomes a disapproval or the Administratorissues such a proposed or final disapproval, whichever is applicable: The highway sanction under paragraph (e112) of this section shall apply in the affected area on the later of 6 months from the date the àffset sanction under paragraph (e)(1) of this section first applied rn the affected area, unless the Administrator sanction under paragraph (e)(1) of this determines that the deficiency forming section shall apply in the affected area the basis of the finding has been . on the later of the date the corrected, or immediately if the - Administrator proposes to take action or conditional approval becomes a takes final action to find that the finding disapproval or the Administrator issues of nonimpiementation has not been such a proposed or final disapproval, corrected, or 18 months following the whichever is applicable, more than 6 finding that started the sanctions clock. months after initial application of the The highway sanction under paragraph offset sanction under paragraph (e)(1) of (e)(2) of this section shall apply in the this section. — - affected area 6 months after the date the (iii) Notwithstanding paragraph (d l i i) offset sanction under paragraph (e)(1) of of this section, to further implement 42 this section first applies, unless the U.S.C. 7509(a). following the findings Administrator preliminarily or finally - under paragraphs (c)(Z) and (c)(3)(ii) of determines that the deficiency forming this section, if the State has submitted - the basis of the finding has been a revised plan to correct the deficiency corrected. -. prompting the finding and after 24 :.. - (ii) Notwithstanding paragraph (d)(i) months from the finding the - -. of this section,. to further implement 42 Administrator has conditionally . - U.S.C. 7509(a), following findings under approved the revised plan and has paragraph (c)(4) of this section, if after issued an interim final determination .18 months but before 24 months from that the revised plan corrects the.. - the finding the Administrator has .- deficiency prompting the finding, proposed to find that the State is application of the offset sanction under iinplementinglhe approved plan and paragraph (eli) of this section and .. has issued an interim final. application of the highway sanction - - determination that thedeficiency . . - under paragraph (e)(2) of this section’ prompting the finding has been - shall be-stayed unless and unti1 the -.:‘. corrected, application of the offset èonditional approval converts to a::. -- sanction under paragraph (e)(1) of this disapproval or the Administrator . section shall be stayed and application proposes to or takes final action to - .. - of the highway sanction under ‘ -. disapprove In whole or in part the paragraph (eUZ).of this section shall be revised SIP the State submits to fulfill deferred unless and until the its commitment in the conditionally-. Administrator preliminarily or finally approved plan. lithe conditional determines, through a proposed or final. approval so becomes a disapproval or.. . finding, that the State Is • the Administrator issues such . . implementing the approved plan and . - proposed or final disapproval, theoffset. that, therefore, the State has not ’” sanction under paragraph e)(1) of this ;.- correctedihe deficiency. If the’ ” section and the highway sanction under ‘. Administrator so prelimin iiy or finally paragraph (e)(2) of this section shail - ‘ ‘determines thatthe Stat has . reapply in the affected area on the date; corrected the deficiency, the offset the conditional approval becomes a . .. ... sanctionunder paragraph (e)(i) of ibis - disapproval or the Administrator issuesr section shall reapply In the affected area such a proposed or final disapproval... - on the date the Adminjstrator proposes’. whichever is applicable. -: -: to take action or takes final action to (4)(i) Notwithstanding paragraph - - t - find that the finding of.: - (d)(i) of this section, to further - nônimplementation has not been implelneaLt 42 U.S.C. 7509(a). following. - correcte&The highway sanction under findings under paragraph (c)(4) of this paragraph(e)(2) of this section shall section. if the Administrator, prior to 18 - apply in the affecfed area on the later of months from the finding, has proposed .. 6 months from the date the offset - to find that the State is implementing , ‘. saiIction under paragraph (e)(i) of this the approved plan and has issued an, -section first applied in the affected area, - int?rim final determination that the- - :. unless the Administrator preliminarily deficiency prompting the finding has; - Or finally determines that the deficiency been corrected, application of the offset . forming the basis of the finding has been sanction under paragraph (e)(i) of this - corrected, or immediately if EPA’s section shall be defprred unless and - .. proposed or final action finding the until the Administrator preliminalily or deficiency has not been corrected occurs- finally determines, through a proposed more than 6 months after initial -. or final finding, that the State is not application of the offset sanction under implementing the approved plan and - paragraph (e)(1) of this section. that, therefore, the Slate has not . (iii) Notwithstandingparagraph (d)(i) corrected the deficiency. If the- of this section. to further implement 42 Administrator so preliminarily or finally U.S.C. 7509(a), following findings under determines that the State has not• - - paragraph (c)(4) of this section. if after corrected the deficiency, the offset . — 24 months from the finding the ------- 31862 -Federal Register I Vol. 59. No. 149 $ Thursday, August 4, 1994 1 Rules and Regulations Atiministrattw has proposed to find that the State is linplexnenting.the approved plan and has is ied an interim final deniI n that the deficiency prompting the flndinghas been corrected. applicebon ofthioffset aw ico under paragraph (e)(l) of this s i and the highway sanction under p.i agi h 1ek21 of this section shall be stayed wiless and until the Miietnr preliminarily or finally determines, thrcmgh a proposed or final flnding.tlmt.the State is not the approved plan, and tlmt,thazefom, the State has not a,rrected the deficiency. if the Administrator so preliminarily or finally dsihattha.State has not the deficiency. the offset sian ‘ an er paragraph (eXI) of this Ian and the highway smrfio wider paiagraithM2l of this section shall reapply ui the ff q%.d area on the date the Adiuiidatrater proposer to take ntin ir kse0imI nction to find th the finding of nmhnpleinentalion has not bee ---- ” L (5) Any c . . 1iim dock stazted by.a flñdingmidparagiaph(ci of this will be pI u1smImtIy stopped and ‘- --. appliecL stayed deferred will bepernianently lifted üpon a al EPA finding that the deflciepcy6 n n the basis of the fln .ghsebeen ccarected. For a ‘. dot* and applied sanctions based on a finaIbi under paragraphs (c)(i)ael *ijofthis sactio a findingtliat the deficiency has been corrected seW oocurbyktter from the AdrebdatitralotheState govasnor. For a sancftiaesdoth or-applied, stayed or - on a Chiding u r pzegriiphslcXz) ud (cX3)tii)o1 , 1ivia fini mg — -y Las been cerreded will oc througha full notice in the Fede al Register fully approving the revised g’ For a aeei ioiis dkor applied, stayed or fonad.sanct us based on a fln underpme apb-(c)l4)of1his section, a finding (l the deficiency has been corrected Will o r1hrough a final neticebithe federal Register finding d the State is hnplementingthe • app ttSlP. - lNstwithstanding paragraph (diLl) ofthis section, nothing in this section will prohibit the Mministrator from deterunuthugibrough notice-and- comment iulemaking that in specific ciicwnstances the highway sanction. rather than the offset sanction, shall apply 18 months a er the Administrator makes oneoftheflndingsunder p& rnph tc) of this section, and that the o t sanction, rather than the highway sanction, shall apply 6 months from the date the highway sanction applies. - . - . (e) Available Sanctions and Method (I) As further set forth in paragraphs (e)(lXüNeMlXvi) of this section, the State-shall apply the emiseicee offset iequireznent in the thtthame prescribed under pw rdph. (d) of this section on those affected areas subject under piun r iph (d) of this section to the offset sanction. The Stale shall apply the n ’on ofLet requirements inaomrdance With 42 U.&C. 7503 and 7509(b)(2L, at a ratio of at least two ntaof 4 ienreduthons for oath unit diomeased imc ciansd the poilutsntl4and its(their) pv.m- .... for w finding(s) under paragraph (cl of this section is (are) made. f tholefidency prompting the finding misl peragzaph (c) of athis section lSw* p ciflc to one or mom ___ their. precursors, the 2-to-i ratio shall apply to all pollnthiitc (and their pIeu.-wwr . ) for whidu an affected area within the -State listed in i raph (e)(iXi) of this sedio n iqulltomeettbe ’ufL e t requireumatsof4z USC. 75an. - - . - 4fl) Notwithstanding paragraph .(eXij(i ) cId a 4in when a nthng ismede with 1 spr.v*1o .a requirement for th,aitseia pollutant o ” e orwhen tlmfi . i g usni* poll t-speciflc,the Statesheflria(applytbs emissions seqairseñe at a ratloof at least 2-to - I fer mion.iedudions to increased emissions for nitrogen oxides whers,-under42lLS.C 7511affl, the Administrator has approved anNOx # Gen IOrthe affected area from the Act’s new soorosieview requirements under 42 USC. 7501—7515 forNOx or uiiueie the affectId area is not otherwise subject to the Ad’s new source review requirements for-emission offsets aider 42 U.S.C 7501—7515 for NOx. (iii) Notwithstanding paregrapb (e)fflti) of this section, when a finding underparegxapb(c)ofthissectionis made with respect toPM-1O, or-the finding is not pollutant-specific, the State-shall not applytbe emissions offset requirements, at a ratio of at least 2-to-I for emission reductions to increased emissions to PM— ID - precursors if the Administrator has determined wider 42 USC. 75 13a(eJ that majorstationazy sources of PM-lu precursors do riot contribute - ‘ significantly to PM—to levels whidu - exceed the NAAQS in the affected area (iv) For purposes of applying The emissions offset requirement set forth in 42 USC. 7503. atlhe 2-to-I ratio required under this section, the Slate shall comply with the provisions of a State-adopted new source review (NSR’J program that EPA has approved under - 42 U.S.C. 7410(kX3) as meeting the nonattaluinent area NSR requirements of 42 U.S.C. 7501-7515, as amended by the 1990 Amendments, or,if no plan has been so apjwvud , the State shell comply directly with the nonattainmea wee NSR requirements specifled .in.42 U.S.C. 7501-7515, as amendedby the 1990 Amendments, or ceaseissuling - pennhtsto construct and operate major new or modified pun as defined-In these vequirements For purposes of applying the off requirement aider 42 ILS.C.-7503 where EPA has not fufl approved a State’s NSR us meeting the requirements of partD, the specifications of those provisionsiball supersede any State requirement that ii - less stringent orinoomistenL 1 (v) Forpwposes of applying the- emissions ofihataequiremenl set forth i 42 U.SC 7503, any permit required -- pursuantto42US.C.75 o3andissued - - on or after the dale the offsetsanction. applies under paragsejih 4d) o!this section shallbs subjeotto the enhanced 2-to-i ratio underparagrapb(s)(i) (1) 01 this section. . - (2) HhwayFwudisinction.The; highway lanction shellapply. as - provide 42 U.SCJ5O9(b) (13, La the timeframepsesaibed underparagi h (d)of this section on thoseaffectedarea subject wider para aph (d of this section to the highway sanction. bet shall apply -only to those pOrtions of. affected aaeasthat.aie des#ated ‘ - - nonattainnient undar4 CFRpart.8L IPRDOC. 94—18572 FI led 8 3-44: 8:45 irnl revs - ------- Federal Register / Vol. 59, No. 149 / Thursday, August 4, 1994 / Notices 39863 ENVIRONMENTAL PROTEC11ON AGENCY IFRL-6023-2 1 Notice of Areas Potentially Subject to Sanctions Based on Findings Issued Under Section 179 of the Clean Air Act AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: This notice lists those areas for which EPA had previously issued a finding. underihe Clean Air Act (Act), and for which the 18-month mandatory sanction clock had expired on or before July 15. 1994 or is projected to expire througJi August 31. 1994.11 these areas do not correct the outstanding deficiencies before the effective date of the “Selection of Sequence of Mandatory Sanctions Rule” (sanctions• rule), which Is found in today’s Federal Register in the rules section and becomes effective September 6, 1994.. these areas would be subject to sanctions. The sanctions rule describes In detail the process by which sanctions will apply to areas that do not meet deadlines specified in the Act and forrn which findings are made. As noted In the list, the vast majority of areas plan to take corrective action befoi the sinctions rule goâ into eff cL HoweveZ, ixiy area that does nbt take the required action before that time: will be subject to the 2 to I emissions offset sanction (offset sinction) a - provided by the Act. Futheunore, in. most i ç if EPA has not determined that the deficiency has been corrected within 6 months of the imposition of the offset sanction, the second sanction,. affecting Federal highway funding, will alsoapply.’ • ADORESS(ES): Air Docket A—94—41, The Air and Radiation Docket and . Information Center (6202).. - Environmental Protection Agency. 401 M St. SW., Room M—1500, Washington. DC 20460. - - SUPPLEMENTARY INFORMAT iON: The table below lists those areas with active sanctions clocks resultIng from a finding. This table should not be used as the sole guide to determine which areas will be subject to sanctions when the sanctions rule goes into effect. En fact, it is likely that today’s list may be obsolete with respect to many areas by the effective date of the sanctions rule incompleteness. The full set of letters because these areas will have corrected reflecting the findings of nonsubmittal the relevant deficiency by that date. It or incompleteness that EPA has already is important to note that the enclosed issued can be found in Air Docket A— table reflects only those areas for which 94—41. Please refer to the sanctions rule clocks.had expired as of July 15, 1994 for a discussion on the significance of or is projected to expire through August finding type. - 31, 1994. There are other sanctions clocks running under the Act (e.g.. any The “State Implementation Plan area that has not yet made a complete Element” column describes the SIP submission to EPA for State element on which the finding wasP implementation plan (SIP) elements due based. Abbreviations are as follows: on November 15, 1993). In the VOC—volatile organic compounds. other sanction docks will be initiated if CO—carbon monoxide, NOx—nitrogen EPA finds that a State has failed to make oxides, PM-b—particulate matter with a required submittal, if EPA determines an aerodynamic diameter less thail or that a State submittal is incomplete, if equal to a nominal 10 micrometers. The EPA disapproves a State submission, or elements and their respective if a State fails to implement an approved sections in the Act are as follows: VOC plan.- . - . .. Reasonably Available Control The EPA will periodically provide the Technology Fix-ups—section public with aocess to updated 182(a)(2)(A); PM—b SIP Attainment information through the Office of Air Demonstration—section 189(a); Quality Plsnning and Standards’ F .mkaion Statements—section Technology Transfer Network computer 182(a)(3)(B); PM-b New Source bulletin board system and through . - Review—sections 172(c)(5) and updates of this Information in the 189(a)(1XA); Basic Vehicle Inspection Federal Register. These updates wi11 and Maintenance—for ozone, section indicate cases in which sanctions have 182(b)(4), and for CO. section 187(a)(4); been deferred or stayed, delete areas for. - nhsnced Vehicle Inspection and which EPA has made a final - faintenance—sectIon 182(cU3IIA); determination that the defldei acies VOC Reasonably Available Control prompting the findings 1i ‘° i Technology Catch-up--section corrected, and add additional areas as - l8z(b)(z); NOx Reasonably Available findings are made triggering sançtons Control Technology Rule —secdon . - clocks. Fuithermore , EPA will publish a .. 182(b)(2)and (I); Employer Commute :‘ notice with a cimilAr table, as -. . Program—sétlon 182(d)(2); appropriate, for areas that later may be Oxygenated Fuels—for serious areas, subject to the highway sanction. . tion 187(b)(3) and for moderate areas, - For each area potentially subject to the offset sanction on the effective date section 211(m); CO Contingency Measure&—section 187(a)(3); CO of the sanctions rule, the table below Atininment DemonstratIon_section: -. identifies the State, the affected area, the 1871a)(7). . ’;.. .. ‘— .. ..:.. type of finding the area received, the SIP element, the pollutants affected by the’ The “Pollutants Affected” column. offset sanction, the date the sanctions describes which pollutants and their clock expires, and the corrective actions . precursors would be affected should the needed to stop the sanctions clock. ... offset sanction be applied. The preamble The “Affected Area” column lists the ... of the sanctions rule explains when - area in which the offset sanction woutd precursors will be subject to the offset apply if the deficiencies are not. sanFtion. The.”Date Sanction Clock corrected by the effective date of the -.:‘: €xpires” column is the date the 18- -. - sanctions rule. For more information on month sanction clock expires. In the - the boundaries of any listed area, the future, this column will include - public can refer to 40 CFR part 81, information on the deferral and stay of - which sets forth the designations fdr . any sanction under § 52.31(d) of the areas and establishes their boundaries.- sanctions rule. The “Corrective Actions Foothoted areas are included because a - Needed” column provides specific SIP submittal was disapproved. All . actions that must be completed to stop other areas are included as a result of a imposition of sanctions for each area on finding of nonsubmittal or . the list. ------- Mw pa Coun / San Francisco-Bay area’. VOC Reasonatily Technolo Catct- VOC Reason 1y *va bla Cm o Technology Catth- VOC Reasonat ly Available Control- Technology Fix-up VOC Reasonably Available Control Technoiogy Fix-up The State and Counly ad lioe of rules is scheduled for August 9. 1994. The State and County we expected to submit plans to EPA on Augast 12The EPA expects to issue completeness de- trninationsby August31. Maricog w Coisly adoplion of TOtes s edi*d for August 5. 1994. The State e expected to s*bilt the plan to EPA en August 10. The EPA expects to issue a w,qikhnesS eiu by August 17. - The State and e Ccw of n es athe d tar iof 9,1994. The State and Cc.mty are expected to aub”ii plans to EPA en August 12. 1 EPA to Issue completeness do. teflh1ln OnSby August31. ___ 11w State and Plies Cowlly nk rules is tthe&,led August 9, 1994 . The State and Coisdy are elpectud to to EPA-wi 12. The EPA qads to Issue completeness de. t a .- - .sbyAug ied31. The Slate and .Pt oIa rules Is sthe ad Ear 9. 195 The Slats and Cow ected wbmliplansbEPAonAuguet 12.11 EPA xpects to Issue completeness do- ZendoatioiwbyA ugust3 l. The State plsu - — sxtn tad to EPA en *pnl .22, .1994. The EPA expects to Issue a completeness kd flby _15._•-.-- -• -. The State expects to s n thd plan Is EPA en -July 18,1994. Th. EPA ipei to heus a .eonçletsaees deS Jx .- . byAu at15 ... lbs Stats . - to w n* Th EPA en July 18,1994. The EPA ‘ ‘ e ’ to Issue a coepleteness by.My . . . The State plan was suliaittedia Aoi May 24,1994 . The EPA expe tops- Ish an aofon i F Eest s3l5lEa byAugwat-19 The Sese plan was subndtIwi to EPA øá July 13 . 1994. The EPA expects toissue a completeness d mii ien .by July 22. - The State plan was subndtlisl to EPA on July 18, 1994. The EPA pect to Issue a completeness determination by July 22. - The State plan was submitted to EPA on July 13. 1994. The EPA expects to Issue a completeness determination ty July 22. The State plan was submitted to EPA nn May 24. 1994. The EPA expects to i lish an action in the FEDERAl. REGIt by August 19. The State plan was submitted to EPA on July 13, 1994. The EPA expects to pub- lish an action in the FEDERAL REGISTER by August 19. 33864 Federal Register I VoL 59, No. 149 / Thursday. August 4, 1994.1 Notices STAIUS OF SMICI1ONS’CLOCKS - - - itstardng State Plan Sidimiftals as Of idly 15,1994] . State Alfectedarea %‘ 7 r° . Polhátants affected Date on pires . Ozone New Source. fleview. Ptmenixarea. AZ’ AZ AZ_- AZ___ • - ,_ — •1. .42 - . • _ ‘:; :-• AZ__ •,• .- . - : • ‘ :. - - ;:* CA..- ___ .-,-- - -C .4.. • ‘ -•-. CA — . CA CA 2 PkI40 New Source PU—lÔtto,, Source p,A-io New Source R -1O imeet -1O ALI an M. Dea COcon A le Coi VOC Reasonably AmileMa bsne New Soume. VOC. NOx vOC —- PM-b and precrx- P 18-10 urul precw- l i sa.. PM—to an tLprecur- fM-tO and ewa , “— :- — 4 1 -S • %• - — f —--. VcC VOC NOx VOC, NOx VOC, NOx 07 115194 07J15194 07 . 15194 11 114 193 11 114193 07115194 — . --1 •wr5194 07415/94 V7715 /94 PlnaCount y ;Ajo area Plies County; Rilto p t eJ ng area PCoin4 RenO Vigria Cowly; Vuma • an wea• Los Ange South ,-Co A 8ado , area. .;• .-. LosAugSou - - ueatAkBadn- Sa SwUtlogo area San Duegoarea San Diegoafea’ - ------- Santa Barbara-Santa Maria-Lonipoc aiea. Southeast Deseit- .Mocfifled AOMA Lake and Porter Counties portion of Choa cwtty ar Ceof Counly of Ptiladelphia-WiI - I zimngton-Trenton JCnoxCcur*ywId I Rest of State (Attain- ment and Marginal areas in Northeast Ozone Transport - Region). MO_..._.._.. St.thuisarea VOC Reasonably Available Control - Tec!lnology Catch- up. VOC Reasonably Available Control Techno logycatch- up. VOC Reasonably. Available Control Technology Catch- ‘ 1*. VOC Reasonably Available Control Technology Catch. (4 - Eixployer Commute’.. OpllorL :;: N __ A .JLJiIe Coilror ’ - ’ Tectsdogy Rof - —.. . I .. - i-•__ - - Available Co.t’ol • Tec f lnolagyLRu les. •f4 -. - NOxRea dñ l y _j .Avaiatilo.Costol i- • ______ • .. NOx Reasonably Available Control - Technology Rules. Basic Vehicle Inspec- - lion and Mainte- -nanca The State plan -was submitted 10 EPA on July 13, l994. The EPA expects to issue a completeness determination by July 22. The State plan was submitted to EPA on July 13, 1994. The EPA expects to issue a completeness determination ty July 22. The State plan was submitted to EPA on July 13. 1994. The EPA expects to issue a completeness determination by July 22. The State Board Is expected to adopt the nile on August 3, 1994. The nile would become etfecti e on August & The State expects to submit the plan to EPA by August 10. The EPA expects to issue a completeness detem’ãnation by August 15. - - The .State s tniltted reliminasy plan to EPA on.rn .15, 1994. The State ex- pects to adopt the nile on August 5. and submit the final nile to EPA shertly thereafter. The EPA expects to issue a completeness determination by August 15. . .- . • - The State sihrritted a.prerininary plan to EPA on July 15. 1994. The State ex- pects to adopt the nile on August 5. and -. sibolt the final nile to EPA shortly thereaftec The EPA e ’ to Issue a •comp teness detern*sstion by August -15. A. wIde nile was 3ent out for ptlic comment on June 15, 1994. The State expects to adopt the nile-by July20 and submit itto EPA by August 15. The EPA - expects to issue a coirçleteness deter- nilnationbyAugust2. ;. A 4 pJe . of for pitflc comment on Jima 15, 1994. The State expects to adopt the nile by July20 and submit It to EPAby August 15. The EPA expects to issue &coixpleteness-doter- minabonbyAugust22.. - - A State-iside nile was sent oUt for public .‘.cné ig-cn.3une ‘15.1994. Th. State expects to.adopt the nileby .July 20 and -submit It to-EPA by August 15. The EPA expects to issue a completeness deter- ,ana tionbyAugust22. - A State-wide nile was sent out for public comment on June 15. 1994. The Slate expects to adapt the nile by m 20 and submit itto EPA byAugust 1&The EPA expects to issue a completeness deter- mination by Au mt 22. Necessary legislation Was passed in May 1994. but will ,ic(gO into effect until Au- gust 28 The State has scheduled a public heaiing on July 28 and expects to adopt an emergency rule that will be- come effective on August 28. The Stale -. will then submit the plan to EPA and. EPA expects to issue a completeness.- determination shortly thereafter. Federal Register F VoI. 59, No. -149-I Thursday, August 4, .1994 I Notices - ‘STATUS-OF SANCTIONS CLOCKS—Continued (Outstardng State PlanSubinittals as of July t5, .1994) - State Affected area :- ptan element . Pollutants affected - • - Date saslCbOfl -clock ex- -— . Corrective actions needed CA —- -- San Joaquin Valley area. 39365 Optio CA_ IN _____ IMD.__ - . MD .__ — . i_S — ME - - • -;__ - . - - ;,n. &. —. -J 5- . . .— .. - 1• ME ME ... - 07115194 07115194 07115194 07t1 5194 ‘07L19194 07119194 07At5f94! S. ‘07 - ,.- O7115l94 07115194 07115194 VOC. NOx - VOC, NOx VOC. NOx VOC. NOx VOC,NOx VOC. NOx L.. - .. - - - . - * VOC ..NOx -._____ - -. ;*- -- - _ , ..,.j - - - _, . S ._ ‘ , - ‘- -- VOC. NOx -.- VOC. NOx .._. Le w iston-Aubwn’ -area -:‘ a - - • .— — Portland area ------- 39866 Federal Register / Vol. 59, No. 149 / Thursday, August 4,. 1994 / Notices WV ___..._._ :‘:‘ vwV y. - - - . - r- — - •, : wv-: ’ - - .•‘ . -. - Oxygenated Fuels (for moderate Basic Vehicle Inspec- lion and Mainte- nance.•• - Ozone New Source Review. £ Enhanced Vehicle In- spe dian and Main- tenanc . , VOC Reasonably Available Confrol Technology Catch- ._up.. - Basic Vehicle Inspec- lion and Mainte- • -“: Basi Vehiclei Inspec- bonandM a i n te- nance. - - — • .. —, ‘.1• . Bed Vehicle hispec-. bonandM&rde-. I _. l2 b0?. : ‘ri The EPA expects to publish a direct final FEDERAL REGISTER notice approving the States request for redesignation by July 22. 1994. The EPA expects to make the final action effective shortly after August 22. The EPA expects to publish a direct final FEDERAl. REGISTER notice approving the State’s request for iesig i by July 22, 1994. The EPA expects to make the final action effective shortly after August 22. - The State has indicated the rule will be af- fective August.15, 1994 and sabetitled to EPA by August 15. The EPA to issue a colq$eteness delamination byAugustl8. -- The Slate legislatwe nebde to authorize the program aid will not renonveno imW — 1995. The EPA has detern*ied that the State has made aconçlete Sub.u liJ b 10 of 11 requIred nies. The leinaii&.g nile will go bib eftedan August t7, 1994. The State expects to si*n the plan to EPA by August 19. TheEPA- , . .pv to issue a coixpleteness &IOUUL aI August22. The EPA proposed redeslgnatlon a of this area to attairinent ‘en how 1994. The comment period ciosert no adverse coninerib we received. Fmal redesigriatlon approval is expededby August15.- The EPA perib to publish a’ii’ed fsiat FEDERAl. REGISTER notice appovlig SteWs - - for redesignalkin by Aa • gust .15, 1994.-The EPA e ects to mire the rmal adios effective shortly. aftefSeptentheri&. - The EPA proposed redesigudion approval - of this area to tlsi... .s4 on kme 10. - 1994. The comment period osert no adverse conineots were received. Fmel L .redeslgnation.approvalle anperled by August15.’ - . —, ,, : • , - STATUS OF SANCTIONS CLOCKS—Continued (Outstanding State Plan Subn ’ iUals as of July 15, 1994] State -- Affected area - State implementation eiement Pollutants affected . Date sanction. - ( j e actions needed Memphis area ._ • 1. ___ Memplusarea TN co VOC. NOx VO NO VOC .NOx _ VOC, NOx ....._L._. vpc Nox ... _ - .?- ,*, r ,.. - — - --I S:-- YC. Nx ___ 07115194 07I15J94 07115194 07l1 5194 07115194 07115(94 07115(94 - . — 07115194 Nashville area Burlington Metropoh- • tan Statistical area Entire State (Attain- ment areas In Transport Region). charieston area - ,•: , Huntingten .Ashiand. ’ • b4e - - These plans were formally disacoroved because they did not fully meet EPA published recparéments The’flnal disaptiuvat s rted as 18- • . month sanctionclock, ’which expired in May 1994. To Stopihe sanctions clock, EPA mud finalize an approval ‘action in the FEDERAL REGiSTER U I- • corporating a revision that corrects the deficiencies in the Stflte plan. Sanctions may be stayed or deferred based on a detemilnallon that the de- Ilciency has been corrected. This determination would be made by an Interim final rule at*ilished on or after the time EPA has crocosed aD- - lot lar -‘-. • Dared: JuLy21, 1994 Mary D. Nichols. AisistantAdministrator. , , - - IFR Doc. 94—18571 Filed 8—3—94; 8:45 amj € - : - - --I- ------- ?ItO UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESEARCH TRIANGLE PARK, NC 27711 1 ” t PRO ’ OFFICE OF AIR QUALITY PLANNING AND STANDARDS APR 24 1995 MEMORANDUM SUBJECT: Revised Guidance on the Treatment of Federal Implementation Plan Clocks Following Section 179 Findings FROM: tver, Director Air Quality Strategies and Standards Division (MD-15) TO: Director, Air, Pesticides and Toxics Management Division, Regions I and IV Director, Air and Waste Management Division, Region II Director, Air, Radiation and Toxics Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides arid Toxics Division, Region VI Director, Air and Toxics Division, Regions VII, VIII, IX, and X Memoranda issued in 1992 and 1993 provided guidance on, among other things, how the sanctions and Federal implementation plan (FIP) clocks operate following section 179 findings of nonsubmittal, incompleteness, and SIP disapproval.’ Additionally, on August 4, 1994, EPA issued a rule prescribing the sequence of section 179 mandatory sanctions (59 FR 39832). In the preamble to the rule, EPA described a revised policy for how the sanctions clocks operate following section 179 findings. The purpose of this memorandum is to revise the 1992 and 1993 guidance on how the FIP clocks operate to be as consistent as possible with the revised sanctions clock policy EPA adopted via the sanctions rule. 1 The two memoranda are: July 9, 1992 memorandum from John Calcagni to the Air Division Directors entitled “Processing of State Implementation Plan (SIP) Submittals,” and a July 14, 1993 memorandum from Kent Berry to the Air Division Directors entitled “Impact of Conditional Approvals on Sanctions and Federal Implementation Plan (FIP) Clocks.” ------- 2 Background The two memoranda referenced above provided guidance on how the sanctions and FIP clocks function. The July 9, 1992 memorandum indicated that to stop the sanctions clock, following a section 179 finding, the State must correct the deficiency prompting the finding. A finding of failure to submit a plan or complete plan is corrected when the State submits a plan to EPA that EPA finds complete. A SIP disapproval is corrected when EPA takes final rulemaking action fully approving the plan. Concerning FIP clocks, the guidance indicated that section 110(c) (1) requires that EPA promulgate a FIP within 2 years of findings of failure to submit, incompleteness, or SIP disapproval unless two conditions are met: the State corrects the deficiency, and EPA approves the plan. The July 1993 guidance memorandum addressed the effect of conditional approval on sanctions and FIP clocks initiated by findings of nonsubmittal or incompleteness. The guidance reiterated that when EPA finds that a State has failed to submit a plan, or a complete plan, the sanctions clock permanently stops when EPA finds the plan complete. If the EPA then takes final rulemaking action to conditionally approve the same plan, the FIP clock will temporarily stop. The guidance further indicated that the FIP clock will stop permanently if the State fulfills its commitment, and the EPA then takes final action fully approving the plan. However, the clock resumes where it stopped (and the EPA remains under its FIP obligation) if the conditional approval becomes a disapproval. In the preamble to the sanctions sequence rule, in re ponse to public comments, EPA revised the sanctions clock policy described in the July 1992 memorandum (see 59 FR at 39837-52). The EPA retained the previously stated policy that in order to permanently stop a sanctions clock and permanently lift sanctions, EPA must finally determine that the State has corrected the deficiency prompting the finding. However, the revised policy indicates that EPA recognizes that it is inequitable for sanctions to apply where EPA has made an initial determination that the deficiency has been corrected and the State, therefore, has presumptively corrected the deficiency. Therefore, the policy and the rule provide that, following SIP disapprovals, when EPA proposes to fully or conditionally approve ------- 3 the revised SIP, EPA may also make an interim final determination that the deficiency has been corrected. 2 This interim final determination shall have the effect of temporarily deferring and/or staying sanctions. 3 Sanctions are temporarily deferred and/or stayed unless and until EPA reverses the proposed approval and proposes or takes final action disapproving the SIP. The purpose of this memorandum is to revise the July 1992 and July 1993 guidance to make the treatment of the FIP clock following section 179 findings roughly consistent with this revised sanctions clock policy. Revised FIP Clock Policy Overall Policy By this memorandum, the FIP clock policy is being revised to provide for the deferral of the FIP requirement following findings of nonsubmittal and incompleteness and SIP disapprovals where EPA has finally determined prior to 2 years from the date of the finding that the plan is conditionally approvable. Note, like the revised sanctions clock policy, the conditional approval will not temporarily or permanently stop the FIP clock. Rather, the FIP clock will continue to run when EPA issues its conditional approval, but the FIP requirement will be deferred unless and until such time as the conditional approval converts to a disapproval. Of course, if the State fulfills the conditional approval commitment and EPA fully approves the revised SIP, then the FIP obligation is fully satisfied and the FIP clock stops. 2 With respect to a conditional approval, EPA’s interim final determination can be made at the time of a proposed or final conditional approval. The EPA will not take final action on the interim final determination until the State has met its commitment and EPA has issued a final full approval. For a further discussion of interim final rules, see the sequence of sanctions rule, 59 FR at 39832-52. The policy and rule make similar provision following findings of nonimplementation where the application of sanctions is temporarily deferred and/or stayed if and when EPA makes an initial determination that the nonimplementation deficiency has been corrected. However, the policy and rule do not provide for the temporary deferral and/or staying of sanctions following findings of nonsubmittal and incompleteness because EPA’S determination as to whether the deficiency has been corrected in these cases consists of a completeness review. Completeness reviews are not subject to notice-and-comment rulemaking for the reasons discussed in the preamble to the sanction rule and thus there is no initial finding of completeness on which to base a temporary deferral and/or staying of sanctions. ------- 4 How the Policy Works Findings of Nonsubmittal and Incompleteness Following findings of nonsubmittal and incompleteness, the sanctions clock stops when EPA finds the SIP complete. Finding the SIP complete also satisfies the first condition of stopping the FIP clock as mentioned above. Regarding the second condition that EPA approve the SIP, if EPA subsequently conditionally approves the SIP, then EPA’s obligation to promulgate a FIP 2 years from the finding will be deferred unless and until the conditional approval converts to a disapproval (see footnote 1). SIP IDisapprovals Following SIP disapprovals, regarding the first condition for deferring the FIP obligation, if EPA subsequently conditionally approves the submittal and makes an interim final determination the deficiency has been corrected (as is done to defer and stay sanctions), then EPA’S obligation to promulgate a FIP at 2 years will be deferred unless and until the conditional approval becomes a disapproval. 4 In addition, the conditional approval also addresses the second condition for deferring the FIP obligation, namely that EPA approve the SIP. Policy Rationale The EPA’s policy rationale for deferring the FIP requirement in the cases described above is that it is duplicative for EPA to promulgate a FIP when after public notice and comment the State’s plan has been determined to be conditionally adequate. Faced with limited resources, the Agency believes it is more -. appropriate for it to put its FIP development efforts on hold where the State has submitted a substantive SIP with commitments for filling the submittal’s gaps within the relatively. short period provided for a conditionally approved plan. Le a1 Rationale Section 110(c) (1) provides that the Administrator must promulgate a FIP at any time within 2 years after the Administrator makes a finding of nonsubmittal, incompleteness, or SIP disapproval “unless the State corrects the deficiency and the Administrator approves the plan or plan revision before the Administrator promulgates” the FIP. The EPA believes that the term “approval” can apply to conditional approval, as well as to full approval, since there is no disapproval element associated 4 For a discussion of how to make interim final determinations, see the preamble to the sequence of sanctions rule (August 4, 1994, 59 Federal Register 39837) ------- 5 with a conditional approval. However, since a conditional approval may convert to a disapproval, EPA does not believe that a conditional approval should fully discharge the FIP obligation as does a full approval. Therefore, during the time that the conditional approval is in place, no FIP obligation will come due, although any clock will continue to run. However, if the conditional approval is converted to a disapproval and the FIP clock has run out, the FIP obligation will then be re-triggered and EPA would need to fulfill its FIP obligation as quickly as practicable. General questions on this clarification should be directed to Chris Stoneman of the Air Quality Strategies and Standards Division (919-541-0823). Questions regarding application to specific programs should be directed to the appropriate program group within OAQPS or OMS. Attachments cc: Phillip Lorang, OMS Rich Ossias, OGC Lydia Wegrnan, OAQPS Air Branch Chief, Regions I-X Regional Air Counsel, Regions I-X ------- Figure 1: FIP Clock Following Findings of Nonsubmittal / Incompleteness Yes Conditional Approval Becomes Disapproval - F l ? Obligation No Longer Deferred and is Now Due Fl ? Clock Continues But First Condition for Stopping Fl? Clock Satisfied (Sanction Clock Stops) EPA Conditionally Approves SIP Prior to 2 Years From Date of Finding ------- FIP Clock Following Figure 2: SIP Disapprovals Yes Conditional Approval Becomes Disapproval - PIP Obligation No Longer Deferred and is Now Due EPA Conditionally Approves SIP Prior to 2 Years From Date of Finding and Makes Interim Final Finding that Deficiency Corrected ------- FJeral RegIster 1. VoL 60. No.. 120 1 Friday. Jwie 30. iee; I Notices (lAD 34315 statutorily required qoneultadan baa been accomplished. The FAA baa formally received the noise compatibility program for The Southwest Florida International Airport, alec effectIve on May 17, taos. PreUrnIn uy review of the submitted materiel Indicate, that It conforms to the requirements for the submittal of not.. compatibility programs, but that further zev lewwtlibenecessezypr lorto approval or disapproval of the program. The format review period, limited by lawtoamax lmum of 180 days, will be completed on or before November13, 1001. The FAA’. detailed evaluation will be conducted u dsr the provIslona of 14 CFR part iso. 16O.3 . The primary amsideatlons In the eva luation process are whether the proposed measures may reduce the level of aviation safety, aeaw an undue burden on Interstat. or foreign commerce, or be reasonably. consistent with obs2frI{ng thi goal of reducing e d.dng noncorepetibi. land uses end preventing the Introduction of additional noucompatlble land uses.. Interested persona axe lnvlte4te comment on the proposed program with specific reference to these factors. All comrnentL otbet than those properly addressed to loàl land use authorfttes will be consideredhy the FAA to the’ extent practkabla. Copies of the note. exposure map.. th FM’. evaluation of. the maps. and the pToposed noise. compatibility program are eveilable for * examination atihe following loimtIan . Federal Aviation M” 4 n 4 stra11oa Orlando Airport. DIstrtctOMce, 9677 Tradeport Drive, SuIte 130, Orlando, Flortda 3z827-5397 Lee County Port Authority, 16000 Chambó Un Parkway. SuIte Sell. Pt My.is. FL33e 13-eaOO Questions maybe directed to the Individual named above under the heading. Foe PU 14ER iwcoe *iioN -. CONTACT. Issued Is Orlando. Florid.. May 17 .1995. a arim B. BWi Manqss, OtiasidoAlzpoifaDfstricl Office. (FR Dec. 95-16164 FIled 6-29-93,8:43 siul’ giLlimoses 4 5SS-I 5. Connecticut Avenue, NW., SuIte 1020, Weah1n ton. D.C., 20036. The agenda will be as follows. (1) Welcome and AdmInIstratIve Remarks; (2) Introductions; (3) RevIew and Approval of the Agenda; 14) RevIew and Approval of the Summary of the Previous M.ating (5) RevIew of Results of Working Group 1 EdItorial Group Msetlng oiPgeeenta t iens; 7) AssIgnment of Tasks; 8) Other Business; 9) Date neil Place of Next Mâetlng. - Attendance Is open to the Interested public hut limited to space availability. With the approval of the chairman. members of the public may present oral atatsments at the meeting. Persons wishing to present statements or obtain Information should co tad the RTCA Secretariat, 1140 Connecticut Avenue NW., SuIte 1020. WashIngton. D.C. 20038; (202) 833-0359 (phone) or (202)833-9034 (fax). Members of the pubic may present a written statement to the comndne. at any time. Issued In Wk.blnglen, D.C., on fuss 26, loss. Jaa i ml.P*zu , florfjnawdOfflaa l. IFR Dec. 05—15185 Flied 6—2 0-el: ass amj laLLiat 4m54 Flight SarvIceBtatIse at But , M I; Notice oLClosln Notice I. hereby given that on or about July 28. 1905, the flight service station at Butts. Montana, will be closed SeMces to the aviation publlc formerly rovt4ed by this facility will be piovided by the’automated flight service station In Greet Falls, Montana. This lnfeimatioa will be reflected In the FAAflipnization Statement tite Xt tirnerit is Issued. Sec. Sin(s) of Federal Aviation Act of 1958. as amended; 72 Stat. 752; 49 U.S.C. App. 1354(a). lusuad in 3ssals Washington. on June 20. 1096. Fiedstlck bf. Isaac, Re oa,uiAdminIat,utur. NahweugMo ngaIi Region. (FR Doe. 98—10168 WIled 6—29—95: 0:451 ,0 1 WLu CC C I lI -1L* AGENCY: Federal Highway Adminletratlon (FHWA). DOT. ACTION: Notice of proposod policy statement; request for comments . SUMMARY; The purpose of this document is to propose a policy which would: govern the exemption criteria that would be used to determine which projects could advance I! the Environmental Protection Agency (EPA) imposes highway sanctions In accordance with sectIon 179(a) or section 110(m) of the CAA, In conjunction with EPA regulations published In the Federal Register on January 11. 1994. end August 4. 1004: define the requirements which establish the basis for plolect exemptions; and describe and clarify the types of prolects and programs which are exempt The FHWA requests comments on the proposed policy. DATES: Comments eliould he received by August 29, 1995. ADRUs $ Submit written, signed comments to FHWA Docket 04-3p. Federal Highway Adznlnlstratloa, Room 4232, HCC-10, Office of Chief Counsel, 400 Seventh Street, SW.. Washington DC 20590. AU comments received will beava ljablefarexanr lnauonatthe - above address between 8:30 a.m. and 4:15p.m., e.t., Monday through YXtday, except Federal holidays. Those desiring notification of receipt of commentn must Include a s.lf.addressed, stamped envelope or postcard. FOR FURTHER INFORMATION CCNTACfl Ms. Lucy Garilauska.. Office of Environment and PlannIng, (202) 388-2088, or Mr. ReId Aleop. Office-of (2def Counsel. (202) 380-1372. FHWA. Office .houm are from 7:45 e.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMIKI’*RY INFQRM*Tl0N: This. policy statement propose. adexia and - offers cWlftcatlon.on the types of projects (“exempt projec1a ’ listed In section 179(b)(l) of the Clean Alt Act (CAM as amended in 1990 (42 USC. 7509(b)(1fl, that may. continue to advance while an area Is sublect to highway fun Hng sanctions. Under section 179(b) arid section 110(m) of the CAA. the EPA Ad ,1 1 , .letrstor may impose a prohibition on project approvals and grants made under title 23, UnIted States Code, by. the Secretary of Transportation (highway. sanctions”). The descriptions of exempt -. projects contained within this document would apply equally to sanctions applied under sectIon 179(a) (“mandatory sanctions”) or section 110(m) ( ‘discretIonary sanctions”). Sootlen 110(m) contemplates circumstances under which EPA may extend highway sanctions to areas not designated as “nanallalnment”. Hence. RTCA, Inc., Special Commute. 181; A.ronaUecaI 8pecDum Planning ‘Sues Pursuant to section 10(a)(2) of the doral Advisory Committee Act 92-463.5 U.S.C.. AppendIx 2). notl Eumptiaii Criteria for Hlghw. e hereby given for Special Committee 15$ meeting to be herd August 1—3, °° 1005, startIng at 9:00 a.m. The meeting wtfl be held at the RTCA, 1140 ------- VI sd 1 U1 .LZ.15 S. .1St I sI..d 34310 Federal EagMer I Vol. 60. No. 126 1 Friday, Juno 30, 1995 I Notices the Information contained In this notice applies to attelvlmeflt , nonattainmant. and unclassifiable areas. As alibis dato.EM has published two fuel rules related to senctlon& A final rule was published In the Federal Register on Januarym 1094. entitled, ‘Criteria for ExsrcIelng Discretionary Sanctions under Title I of the Clean Air Act” (59 FR 1476). Ii establishes criteria to guide EPA’. decision on whether. in a specific circumstance, to impose discietlonary sanctions on a statewide basis under section 110(m). A second regulation, “Selection of Sequence of Mandatory Sanctions for Findings Made Pursuant to Section 179 of the Clean Air Act,’ vu published on August 4, 1994(59 FR 39832). ThIs regulation establishes that, following sectIon 179(s) fln ’ 1 ’gs, the 2-toi offset sanction on new or modified major stationary sources applies first, 18 months after the finding (except where EPA. reverses the order through a separate nalemsklngL unless EPA baa detenulned that the State corrected the deficiency that prompted the finding. Highway sanctions apply second, six months after application of the offset sanction, unless EPA baa determined that the State corrected the deficiency that prompted the finding: Those two final rules (and this propo.ód policy statement, if mad. final) effectively supersede the joint DOT/EPA Federal Register notice of April 10.1980(45 FR 24692), “Federal Assistanos Limitation Required by section 178(a) of the Clean Air Act.” The EPA also expects to publish another regulation that would establish the sequence of sanctions applied under section 502(dXZRB) of the Clean Air Act relating to the EPA’. permit program. The proposed policy seeks to clarify the types of project, which axe exempt from sanctions and to establish crfteth that are uniformly applied when determIning which programs and projects are exempt from highway sanctions. The proposed policy give. recognition to the respective roles and responsibilities of the FHWA and the EPA In applying f indIig and program! project approval limitations under section 179(b)(1), when the highway sanction Is Imposed under section 179(a) or sectIon 110(m) of the CAA of 1990. The policy would be nationally applicablo. Although PWNA would ,.consult with EPA to detennlnwwbether projects meet the exemption criteria set forth In this proposed policy, the final authority to determine whether a project Is exempt from highway sanctions under the safety exemption criteria and seven congressionally authorised actIviI es Is the responalbiliry of the Secretary of Transportation. as delegated to the FHWA. Other transportation related projects, not covered under the aforementioned exemptions, are not exempt unless the EPA Administrator, In consultation with the Secretary of Transportation. finds that they will improve air quality end not contribute to Increased single occupancy vehicle (SOy) capacity. A number of stand-alone projects which do not affect alr.quality but have other environmentally beneficial Impacts are not specifically exempt from sanctions by the CAA. These projects may Improve water quality,. mitigat, wetland Impacts, provide landscaping. preserve historic structures, reduce noise, anthmre other aesthetic benefit .. Whil, th. proposed po 1 icy statement would not exempt these projects. FHWA requests. comments a. to whether the following types of projects should be exempt from highway sanctions bemuse of their de pttnhnls Impact on air quality. These activitlea are generally exempted from the CAA transportation conformity requirements (see 40 CFR if 51.460 and 03.134). C’mvrtenie sbauld.include a discussion of the bests for the commautor’s position In favor of, or against, such an exemption. PHWA would consult further With EPA before granting such an exemption. The projects for which exemption status I. being conatd rsd Include: 1. Wetland edttgetIon 2. PlantIng trees. shrubs. wildflowers; 3. LandetupIn f 4. Purchase of scenic easements: 5. BilLboard and other alga removal: 8. HistorIc preservation; ?. Transpoziedan .ohsw.ameoi. .nd 8. NoIse abatement. Requirements which Establish the BuIi for Highway Sanctions Exemption. The Secretary of Tranapo*ddon may make certain project approvals and award grants, even while the nonaualnment area or State Is under highway sanctions. As stated In section 179(b)(1) of the CAA. safety projects could go forward provided the Secretary of ’l anepoxtation deter rInes t at. based on accident or other data, the principal purpose of the project Is an Improvement In safety to resolve a demonstrated safety problem and will likely result In a significant reduction in or avoidance of accidents. addition to safety projects. section 179(b)(1) specifically exempted seven activities from highway sanctions. Projects that the EPA Mmlalstrator, In consultation with the Secretary of TransportsUon. delerutinos would contribute to air quality Improvement and would not encourage SOy capacity are also exempted. Programs and projects which are allowed to go forward under section 179(b)(1) should strive to avoid Increasing or relocating emissions end congestion rather than ainqily reducing them. SaMy PrograrnlProject Requirements Under 23 U.S.C. Several programs have been established under title 23, U.S.C., expressly for the purpose of addressing safety objectives, either through pmgr n s targeted at driver behavior or safety projects Intended to remedlate structurea, faclliuioe, or prevent loss of ) xwtan life. These programs include the: (1) HIghway Safety Improvement Program ss.d.fln.d under 33 CFR Pert 924; (2) the Highway Bridge Replacement and R.b.bilttitlon Ptogram es defined under 23 CFR Part 650. Subpart 0; and (3) grunt pzognms who.. FII1 PaI purpem to Improve safety and which do not Include any capital Improvements. Including .11 p ograsas established In Chapter I IVor 22 U.S.C. that are administered by the National }ftgbwsy Traflic Safety Admbistr tIon (NHTSA). Additionally, the Transportation Management and Monitoring Systems defined under 23 CFR Part 500 (58 FR 63.475. December 1, toas). defined requirement . for six management systems and the Traffic Monitoring System. The requirements set forth in the management systems axe being phased In and, with the exception of ths pavement and bridge management systems. wIU be fully operational by October 1, 1908. The pavement and bridge management systems axe required to be fully operational by October 1, 1997, and October 1, 1098, respectively. Those requIrements. as applied to the safety end bridge mansgáment systelfls. will yield additional Information and data needed to support highway sanction as apecifled in section 179(b)(1) of the CAA. This information may be used to supplement existing data ni. as ft Is deveinpail. may lTnprnve existing data or Information currenily available. Programs or projects stemming from the following provisions could be exempt on the basià of an established safety.related project need meeting sectIon 170(b) requIrements. TItle 23 of the Code of Fedqral Regulations (April 1, 1994) sets forth the requirements for eligibility for Federal funding for projects under the Highway Safety Improvement Program (23 CFR Part 92 and the Highway Bridge Replacement and ReImbiliurtion Program (23 CFR Pa ------- ui—ii— 3 uq. qrM riwu rn 1ViY LA1 Vl rtf DvI I V 1/ iU) .J .),JU I UUJ/ L UU Federal Register I Vol. 80; No. 126 / Friday. June 30, 1995 I Notices 34317 r grsm. •. 3.ySaf e lyP ngroma .admn 1byNl SA (Chapter. fl Admh iIs1ered yNHSTA. and III of 23 CPR). ThelS prOgImS haVO The National Highway Traffic Safety boon established with the purpose Adin1S? UOfl rs administers add afng safety objectives and Y hi (Independently. 1CID YI or cooperatively used to establish justIflr t1 for the with other Federal agencies) program. safety ezemudons wider the CM lithe whose principal purpose Is to Improve sectIon 179(b) requIrements and those of highway safety end which do not this policy are fufly met. , i.Iügbieny SafrfyImp rovewent . Under those propemr, the agency Progium 123 R Pait 924). awards elthei pants. contracts, or The Highway Safety Improvement. cooperative agreements. These programo Program requires each State to develop Include, but are Dot limited to. programs and bnpb’nent a urogram which baa as authorized under chapter W of tIde 23. Its goal reducing e number and U.S.C.., M aCh as: severity of acdøente and decreasing the Section 402. HIghway Safety potential for accidents on all highways. Programs. under which the agency The program Is to be continuous and Its P° ° 8 ’” 5Uldellflee and awarda comocoents consist of eranti to Statee.bavbig approved Im,fr”aitauon. an4 evaluation of JghwaY safety programs designed to end ptojdcts. reduce traffic aeddeitta and deaths. .T t ntatIon of the highway Injuries and property damage; safety mj rovement program Is subject Section. 403, Highway Safety Research to rcceaures eat forth In 23 CFR Part end.Developmeni. under which the ego. Subpart A, Pedml a1d agency engages in research on .11 phases Approval and Prajocr Autharlzauon.. of highway safety and traffic cond3tlonl and the priorities developed and other related rematch and conjunction wIth 23 CFR Part 924, development activities which will promote highway safetv section 024 .9—PI”g The planning components of the Section 40L Alcoho(TraIEc Safety program shall Incorporate a process for Programs. and section 410.’Alcohol collecting and ro fltsbi4T g a record of lw abud Driving nthrn eaaurea. accident data; a process for analystng unaer which the agency makes grants t available data to Identify hazardous States which adopt and Implement locations on the basis of accident elfective rvpam . to reduce traffic experience ur acctdaui potential; safety proolsa. resulting from person. process for conducting engineering driving while under the Influence of studies to develop highway safety alcohol or a controlled substance. fmprovemsntec and projects c neIderIng NHTSA programs also I nclude. but the potential reduction in the number are not limited to, programs authorized and severity of accidents. . under Chapter 1 of tld. 23. U.S.C. such an. 2. The Hlghwey Bridge Replacement SectIon 153. Use of Safety Bolts and and R.hahWtadon Program. ) y under which the This program Is administered ln agoecy has made grants to Stats. with accoid ”e . with 23 U.S.C. 144. EligIble •ffective safety bali and motorcycle work under this program Inciudee the helmet use laws and under which States total rspla rneut eta structurally. bj c to the transfer of certain deficient or functionally obsblets hridge highway coestsuetlon funds to section a nominal amount of approach work 402 sufficient to connect the bridge to the rsnia not having suck laws roadway or major work requlredto Section 154. NatIonal M hnum restore the structural Integrity ala Speed Limit. urrderwhkh States are bridge as well as work necessary to subject to the transfer of certain correct major safety defects. Bridge highway construction funds to section projects eligible for funding under the 402 programs for noncompliance with liridge replacement and rehabilitation the National Maximum Speed Limit program must be supported by bridge requirement .. Inventory data and evaluathm of the bridge Inventory. •. . 4. IS1TA Management Systems Projects are submitted by the State to Section 1034 of the ISTEA amended the FlIWA In accordance with 23 CFR t Itle 23, UnIted States Code, by adding part e o, Subpart A, Federal-aid sectIon 303, Management Systems. Programs Approval and AuthorI a1lon. SectIon 303 requIres State development. Priority consideration. will be given to establishment, and Implementation of a those projects which will remove from system f& nianaghig each of the service those highway bridges most In following: highway pavement of danger of failure. Federal-aid highways (PMS); bridges on ond.off Federal-aid highway. (BMS); highway safety (SMS); traffic congestion (CMSJ; public transportation facilities end equipment (PTMS); and Intermodal transportation facilities and systems (IMS). An Interim 8nol rule (IPR) for these systems was published on December 1. 1993.as23 CFR part 500. The lP’R aUowa for a phase-In of the management systems ranging over the next soveralyears.. While each of the systems may result In the identification of strategies that benefit attainment of the NAAQS, lbs dataava llahlefromtheBMSaztdSMS would aignificertly oontxtbute toth. justification for project exemption for bridge and safety strategies IdentUted by these systeme The BMS (23 R part 500. subpart C). which muet.be fully operational by October 2. 1998, must.inciude a bridge Iavenao y database, a procedure for predicting the deterioration of bridge elements with or without intervening action, and ldántl&aslon of feasible actions to Improve bridge cond1tIo . safety, and serviceability. The SMS (23 ‘R part 500. subpart D), which must be frilly operational by October 1, 1996.1. to provide Infonnadon for selecting and Implementing effective highway safety strategies and projects and must indude Identification of highway safety strategies, actions, projects or programs for consideration In development of highway safety plan.. State enforcement plans. and metropolitan and statewide transportation plans and Improvement programs. The proposed policy for exemption rIt.ria for highway sanctions follows; HIGHWAY S4NCIION EXD IFrION CRiTERIA POLICY SUBJECT: Policy for zempuon Criteria to be Used to Determine Which Projbcts Can Advance If the Environmental Protection Agency Imposes the Highway Funding Sanction Under section 179(a) or 110 (m) of the CM. as Amended In 1990. FROM: Rodney. E. Sitter, F deraI H1gh ay Administrator U. S. Department of Transportation. MEMO TO: Regional Adndnlatrators. Federal Lands Highway Program Administrator The purpose of this memorandum Is to define the exemption criteria that will be used to determine which projects can go forward and which grants can be awarded In the event the Environmental Protection (EPA) Agency Impasse higliway sanctions under section 179(a) or section 130(m) of the Clean Air Act (CAA) of 99o. This policy contains a ------- ui—i —s u4:C4rM rrtu!V1 cut IVIYcLANN itADUc It) 1/ IU.)(.JJJJJU I UU j/ UUU 4316 Federal Register / Vol. 60, No. 126 / FrIday, june 30, 1.095 / Notices escrIpdon of the criteria for sxempdou and clarification of the Lypes of projects and programs that are sxempt. Projectafor which exam tions olbent,daresl.QIRG IU b this policy memorandum. A. General Description Highway sanctions, when applied, halt the approval of projects and the award of any grants funded under title 23, UnIted States Code (Title 23), except udefined In sectIon 179(b) andth la policy ibis applies to the following major funding propams 1. SudeceTrensportadora Program (Sm); 3. NatIonal Highway System; .3. Interstate Maintenance;. 4. BrIdges; 5. Interstate Construction; a. Inroretate Substitution; ax&4 7. CongestIon Mitigation and Air Quality Improvement Program (C24AQJ. Project. funded under all other Title 23 programs and other authorizations are also subject to sanctions, Including demonstration projects Identified by the Congress a*d epeciflod In lbs Intermodal Surface Transportation Elflclency Act (W1EA) of 1991 under sections 1103—1108 or In other laws. ualeu they meet e criteria set forth In this policy memorandum. Additionally, projects to be funded under previously authorized programs, such as Federal. aid Urban, etc., are also subject to sanction. ProjectB funded under tItle 49. U.S.C.. chapter 13, the Federal Transit Laws, as amended, are categorically exempt from sanctions by law as are other transportation programs authorized by statutes other than TItle 23. B. Typical Nonsx.mpt Projects The following types of projects generally do not meet the axempUon criteria ln.aectlon 179(b)(1) and would not be aUpwed to proceed If funded or approved under Title 23 unless it Is demonstrated that they meet one or more of the exemption criteria. These Include projects that expand highway or road capacity, nonexempt project development activities and any other project that does not explicitly moot the criteria in this notice. Those may Include activities for: 1. The addition of general purpose through lanes to existing roads: 2. New hlghway’faclutles on new locations; 3. New Interchanges on existing highways; 4. Improvements to, or reconfIguration of. existing Interchanges; 5. Addlilons of new access points to the e dstiug road network; 6. Increasing functional capacity of the facility; 7. Relocating existing highway facilities: 8. Repaving or reawfaclng except for safety purposes, as defined by section 179(b); 9. Nonexempt projects, project development. Including NEPA documentation and engineering, rlgbt.of-way purchase, equipment purchase, and construction; 10. Standa’one projects that do not affect air quality but hay, other eavixonrnenrally he eflda1 impacts such as wetland mitigation, planting and landscaping, purchase of scenic easements. billboard and other sign removal, historic preservation, transportation - nh,’tcenmerrb, end noise abatement C. frojectExempt lons • Under section 170(’b)(i) of the CAA. once the EPA 1 npeses highway sanctions, the FRWA may not approve oraward anygrantelnthe sanctioned area except those which fall under three categories: (1) safety programs and projects: (2] congieulonally-authorized activities under section 179(b)(t)(B); and ( ) art quality Improvement projects that do not encourage single occupancy vehicle capacity. 2. Safety Programs arid Projects Safety projects are those for which the prIncipal purpose Is an Improvement In safely but the projects may also have other Important benefits. These projects must resolve a demonstrated safety problem with the likely result being a significant reduction In or avoidance of accidents as determined by the FHWA. Such demonstration must.be supported by accident or other data submitted by the State or appropriate local government. - Three types of categories of sa t ery- based programs and projects cotlid potentially meat the exemption criteria: grant programs end related activities: statewide safety Improvement programs; and specific projects outside of a statewide safety program. Each category calls for a different level of justification specific to a particular category. a. Programs administered by the National Highway TaWi Safety Administration qualify for blanket exemptions, on the basis that their principal purpose Is to improve safety and do not include any capital Improvements. Programs that fall within this category Include but are not limited to: Use ol Safety Belts and Motercycle Helmets (23 U.S.C. 253); National Maximum Speed LImit (23 U.S.C. 154); Highway Safety Program. (23 U.S.C. 402); Highway Safety Research and Development (23 U.S.C. 403); Alcohol Traffic Safety Programs (23 U.S.C. 408); and Alcohol .Iinpalred Driving Countermeasure. (23 U.S.C. 401). b Statewide safety lipprovement programs Include specific safety projects that con ha justified on the bash of State or national level data, which will be additionally supported by data and analysis atenuning from the management system requirements once the system. are fully operational. Projects meetlng.thie exemption • categorj would come our of the Highway Safety Improvement Program (23 CFR part 924) and the Highway Bridge Replacement and Rehabilitation Program (23 CFR part 650, subpart D). The Highway Safety Improvement •Pan alsofa eJudegtheH Elimination Program (23 U.S.C. 152). c. Specific projects for which justification is needed to ahow that the project Is related to safety, unless the project Is drawn out of a statewide -safety program end would be llkeiy to reduce ccldento, would Include capital projects such as: 1. Ellrninatlon of, and safety features for, rallroad.bigbway grade crossings; 2. RepaIr of damage caused by natural disasters, civil unrest, or terrorist acts; 3. Changes In vertical or horizontal alignment;- 4. IncreasIng eight distance; 5. EliminatIon of high hazard locations or roadside obstacles: a. Shoulder improvements, widening narrow pavements: 7. AddIng or upgrading guardrail. median. sud barrier., rranii cu.hlou.. fencing: 8. Pavement resurfacing or rehebllitatinn to Improve skid resistance; I 9. Replacement or rehabilitation of unsafe bridge.; 10. Safety roadside rest areas, truck size and weight Inspection stations; 11. AddItion and upgrading of traffic control devices, (traffic signal., sips. and pavement markings); 12. Lighting improvements; and 13. Truck climbing lanes. justification [ or an exemption on the grounds of safety must be based on accident or other data such as the data derived from a safety management system, bridge management system, the Highway Safety Improvement Program. or the Highway Bridge Replacement and Rebsbthtation Program. Such data need not be specific to the proposed project’s location but may be based on accident or other data from similar conditions, including national experience where such projects have been Implemented remove safety hazards. For example. ------- Federal la ster/ Vol.. 80. No. 126 1 FrIday, June 30. 1995 / Notlcee 34319 rlgldhlgbway .1 p posts were identified In the past ae a saMy hazard causing •uanocessuy deaths and Injuries. The Idantificatign of this hazard led to national policy requiring rigid posts to be replaced with breakaway poles. Projects exempted under the safety provision may not Involve s ib.tant1al functional (such as upgrading major arterial to freeways), loiatlonol. ox capacity changes except when the safety pmblem could not otherwise be solved. Although substantial changes to the function. location, or capacity have been previously allowed for projects funded under Emergency RaIlef such projects could not proceed under sanction. 2. Congresalonaliy Authorized AcIiviUes Seven project types axe Identlfled specifically In CAA section l7atbXl) as exempt from highway sanctions. Esseinhally these are projects that discourage single occupancy vehicles or improve traffic flow (e.g., intersections, turning lanes) In ways that reduce congestion and einluiansr a. Capital programs for public transit. These Include any capital investinent for new construction, rehabilitation, replacement, or reconstruction of facilities and acquisition of vehicles and equipment; b. Consinrcuon or restriction of certain readsorlanes solely fortheuse of passenger buses or high occupancy vehicles (ROY). Exempt projects Include construction of new }IOV lanes, If those lanes are solely dedicated as 24- hour NOV facilities, and converting existing lanes for HOV use during peak hours, includIng capital costs necessary to restrict existing lanes (barriers, - striping, signage, etc.): c. Planning br requirements for employers to reduce employee work trip-related vehicle emissions. This also includes promotional and other activities associated with this type of program that are eligible under Tltl. 23; d. Highway ramp metering, traffic signalization, and related programs that Improve traffic flow and achieve a net emission reduction; e. Fringe and transportation corridor parking facilities serving multiple occupancy vehicl, program, or transit operations (this Includes the construction of new facilities and the maintenance of o,dsting facilities); 1. Programs to limit or restrict vehicle usa In downtown areas or other areas of emission concentration, particularly during pertpde of peak use, through road use charges. tolls, parking eurchaips, or other niclng mechanisms, vehicle restricted sonea or periods, or vehicle registration programs: exempt projects include all activities of these types that are eligible under existing funding programs; and g. Program. fox breakdown and accident scene management,- nonrecurring congestion, and vehicle Information systems, to reduce congestion and emissions. The FHWA will consult with the EPA on any project claimed to reduce emissions; thai is, with projects falling under paragraphs c. d. and g, above. the final authority to determine whether a project meet . the criteria In this section end Is therefore exempt from highway sanctions, however, rests with the F}IWA. 3. AIr Quality Improvement PTegmms That Do Not Hncourrxge Single Occupancy Vehicle ft ’ Transportation programs not otherwise exempt that Improve air quality and which would not encourage single occupancy vehicle capacity (as determined by EPA In consultation with DOT) axe also exempt from highway san ons. For example, transportation control measures (TQis) listed In sectIon 108(1) of the CM and projecirAzoded under 23 U.S.C. 149. the Congestion Mitigation and Air Quality Improvement (Ovti QJ program, are project . which the EPA and DOT may, alter Individual review of each project. find to be exempt from. higbway sanctldns. For these projects to advance while highway sanctions are in place, the State must submit to DOT an emissions reduction analysis similar to that required under the CMAQ program. Upon receipt, DOT will forward It to the EPA. The EPA will complete Its review and task. Its 5i I ig regarding air quality and single occupancy vehicle travel wIthin 14 days of receipt of such Information. The EPA and DOT have agreed that the following projects will be categozically exempt from highway sanctions, and will not require additional EPA review or an Individual finding by EPA: a. TQwfs Included in an EPA . approved State buplementadon Plan (SIP) or Federal Implementation Plan which have emission reduction credit and will not encourage single occupant vehicle travel: b. Inspection and maintenance facilities and acrlvtUes eligible for CMAQ fundlngr c. Bicycti and pedestrian faciUtles sod programs; and d. CarpoollVanpool programs. En considering exempt projects, Slates uhrn,h’I sank to ensure adaquarn sre asa to downtown and other commercial and residential areas, and avoid increasing or relocating emissions and congestion’ rather than reducing them. 0. PlannIng end Research Activities Planning and research activities for transportation and/or air quality purposes are exempt from highway sanctions (except as noted In Section E. Project Development Activities). Such planning and research Is critical for the development of projects that Improve safety and address an area’s transportation/air quality needs. Planning and research activities Include development of major investment studies which may be coupled with the &aft.Envuonmenlal Impact Statement or Environmental Assessment. Major investment studies take a multimodal approach In considering transportation alternatives (Including new highway capacity) which would be exempt from highway sanctions If advanced as stand alone prr4ects. Research activities also Include those research, development, testing, and pia . ie. pro jocts Involving the Naticna Intelligent ‘Transportation Systems (ITS) Program. The goal of the ITS Program Is to use advanced technology to improve travel and roadway safety without expanding existing infrastructure. ITS activities axe generally done under seven broad categories: Travel and transportation management; travel demand management; public transportation operations; electronic payment; commercial vehicle operations: emergency management: and advanced vehicle control and safet) systems. For these reasons, planning and research activities can continue even under highway sanctions. These studle may be carried out with any Title 23 program funds (metropolitan planning. etatepI nl g and research, STP. or other programs) under SectIons 134, 135, and 307 or other relevant sections E. Project Dovoloptasut Activities Dovolopinent and completion of studios that are necessary to meet requirements under the National Environmental Policy Act (NEPA) are exempt from highway sanctions as loni as consideration of projects that would be exempt under the policy statement. such as transit or other transportation demand management (TDM) measures. are actively pursued as reasonable independent alternatives. Once all alternatives that could be considered szwupt from highway asactions under this policy statement are eliminated. project development activities for NEF or other purposes axe no longer exemp and can no longer be approved if they are to be funded under TItle 23. For a ------- 34320 Fe oral Register / Vol. 60. No. 12 / FrIday. June 30. 1995 I Notices example, Ii prior to completion OrNEPA documentation, all 1DM measures are eliminated from consideration and the sole rem ’ ’ g question is the determination olin alignment for a highway capacity.expandb’g project ( hlch may 1 c1ude DM) , mibeequent project development activities am not exempt from highway sanctions. The FHWA rosy not approve p&(e b isy engineering for final design of a project. nor can approval be granted for a projects plauL spedltcatIons and estimates (PS&E) derthitiation of highway sanction. for project. that are not exempt under Ibis policy. Neither rightof-way nor any necessary equipment may be purchased or leased with Federal funds for nouexempt projects while an area launder unction. Federally-funded construction may not In any way begin on a project that doe. not meet the exemption ctiteria desc Ibedththt.polIcywhUes nare ois under sanction. Highway ianctiona apply to those project. whose funds have not yet been obligated by the FHWA by the date the highway sanction app11 ... Those project. that have already received approval to proceed end had obligated funds before the EPA Imposes the prohibition may proceed even while the area launder unction, Uuo other FUWA action is required to proceed. In the cese of a phasesi project, only those phases that have been approved and bad obligated funds prior to the date of n 44 n application may proceed. Per example. If preliminary on for a project was approved en funds were obligated prior to application of sanction. but no approval was secured for later project phase. (such as rfghtof . way acquisition, construction. etc.). prelimloory engineering could proceed while the highway sanction applies but no subsequent phases of the project could proceed with Federal highway funds unless the total po2ject meets the. exemption criteria In this policy. These restrictions pertain only to project development acuvtuea that axe to be approved or funded under Title 23. Activities funded under title 49, U.S.C., or through State or other fund. rosy proceed even after highway sanctions have been imposed unless: (i)approval or action by PHWA under tItle 231. required: arid (2) they do not otherwise meet the exemption criteria of this policy statement - F. Other Eovlronmaotal Requirements Exemption of a transportation project from the section 170(bXl) highway sanctions doe. not waive any applicable requirements under the NEPA (e.g.. environmental docum*nts), section 176— of •tho CAA (conformity requiremant). or other Federal law. Authority. 42 U.S.C. 7509(b): 23 U.S C. 315; and 49 R 1.48. issued on: juse 22,1905. Rodney E. 51 . 1ST, - FedereJHighr. yAdmtnIa lmior. jPR Doo. 08- 16105 FIled B—29-I5; 9:46 emj uJata coos we .er-P Maritim. Administration (Basic.? 8 -UI) Matson Navlgadon Company, Inc.; NoVa. of Application for Written Consent Pursuant to Section 506 c i the Merchant Marine Act, 1836, as amended, for the Transfer of Vt. President Hoover. President 0,e.it, and President Tyler to the Domestic Tied, Notice I. hereby given that Matson Navigation Company, Inc. (Matson), by letter of June 10,1095, request. a waiver of the provisions of section 508 of the Merchant Marine Act. 103*,sa amended (Act), so as to permit Matson to operate In exclusively domestic service during the year commendng December 1. 1995, the U.S-Flag C—B contalnereblps the President Hoover. President Grant,and President Tyler (Vessels) not to exceed abc months, with respect to each ....l, during that year period. The Vessels ware built In the United States with the aid of constructien-differemtia l subsidy. (O)S), and are ccmently owned by American President Lines, Ltd. (API .). Matson intends top the Vessel fiom APL. Matson elates that It intends to use the C-aS both in Its Trsn.paclflc ftlllan . (Alliance) service, as well as in Its Pacific Coast Shuttle (PCS) service, where they will engage on voyages among Vancouver, British Colombia. .(Canada; Seattle, Washington; Ltt Angeles and Oaklend,’Ca11fcraia The Itinerary of the Alliance service vessels weotbound will Involve departures from California ports with calls at Honolulu arid Guam outbound before arr1 al a. Mien port. The outbound calls at Hawaii arid Guam are specifically permitted under section 606 of the Act. Matson explains that due to operational exlgendes Involved In the start.up of the Alliance service, It Is likely that the. Vessels will have to be used lrneii hangeably among the Alliance and PCS services for an indefinite period. However. Matson indicates that only two of the Vessels will ho used In the PCS service at any time. Acquisition of the C-se will mean that the PCSeanbo expanded to a twice weekly service, and that Oakland, CA can be added as port of call. - Any person, finn, or corporation having any interest In th, application for sectIon 506 consent and desiring to submit lmmenta concerning Matson’s request must by L00 p.m. on July 17. 995, file written comments In triplicate, to the Secretary. Maritime .i ,n4n1str tlon, Room 7210, Nassif BuIlding, 400 Seventh Street, SW.. Washington. D.C. 20590. The Marithue Adininuatration, as a manor of discretion, will consider any comments submitted and taha such action as rosy be deemed appropriate. (Catalog of Federal Domestic Assistance Program No. 20.800 Ccesbuodon .DIfforsntlsl Subsidies (CDS)). By -Ceder of th e Maritime Administrator. Dated: Jim. 27. 1005. •1ee1C.R 1eh & Swvtar, MUm.Admlnlarretiee. Federal Transit Administration Environmental impact Statomeni on • Introduction Of Transportation Improvement. on the East Side of New York County, NY AQSNCY; Federal Transit Mndnlstratlon (PTA), DOT. ACflOIt Notice of intent to prepare an environmental Impact statement . IUNMARY: The FIA. the Federal Highway Administration (FHWAJ and the New York City Transit Authority (NYC Transit) are Issuing this notice to advise the public and all other Interested paxtiee that hr accordance with the National Environmental Policy Act (NEPA). an Environmental lm pact Statement I SIS) will be prepared for transportation Improvements that will Improve mobility on the east side of the island olMeuhattan within the Qty of New York. NYC Transit will ensure that the EIS also satisfies the NquIrements of the State of New York Environmental Quality Review Act and the intent of the City of New York Environmental QualIty Act. The Draft EIS (DEIS) will Include a Major toveermeni Study (MIS) In accordance with the joint FTA/ FHWA Metropolitan Planning Requirements. as CPR part 480. High levels of auto congestion In the study area Influence the region’s ability to meet National Ambient Air Quality standards. The MIS/DEIS process will clearly Identify these end other mobility problems In the study area and evaluate any alternative action, generated through the ecoplag process. Among the alternatives that the MIS/DEIS effort will evaluate are the No .Action and ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Office of Air Quality Planning and Standards Research Triangle Park. North Carolina 27711 10 199$ MEMORANDUM SUBJECTs Redelegation o1 Authority for Delegation 7-10 from the Assistant Administrator to the Regional Administrator’s; FROM: Mary D. Nichols;, Assistant Administrator Office of Air nid Radiation (6101) TO; Regional Admin:Latrator, Region. I-X Pursuant to Delegation 7-10, contained in the EPA Delegation Manual, the authority to pprove/disapprova State Implementation Plane (SIPs) and SIP reviisions required to be submitted to EPA under Section 110 of the Clean Air Act was delegated to the Regional Administrators f r certain categories of actions. The categories of actions delegated for decision by Regional Administrators are the tables initially published in the Federal Register on January 19, 1989 (54 FR 2214) and subsequently revised in an October 4, 3993 Memorandum from Michael Shapiro, Acting Assistant Administrator, to the Regional Administrators. Delegation 7-10 states that the Assistant Administrator for Air and Radiation can periodically revise the tables via a memorandum to the Regional-Administrators. Thu authority may not be redelegated. Effective today, all actions currently en Tables 1 and 2 are moved to Table 3 and are thus delegated to the Regional Administrators for signature. Based upon reconu.. 1 .ndations made at the April, 1994 Regional Air Division Directors meeting in St. Louis, Missouri, a SIP Improvement Workgroup was established to examine EPA’s procedures for promulgation of SIPS and to recommend improvements. Attached ii the final report, which I have approved. The report contains numerous recommendation, which I believe will simplify end streamline the si re ‘te% process. A key recommendation of the workgroup is to maxie e regional authority by delegating signature for all SIPS to the Regional Administrator.. Today’s memorandum is an importaii.t first step in implementing this recommendation. However, to more dearly indicate in the delegation itself what authority has been delegated to the Regional Adminiitratora.and what the limitations raon that ------- 2 authority, we are prepariTig a new delegation for Green Border review which will •ffectivelyeliminate the SIP Tables. While this process may take a few months, the baBic intent of the new delegation can be achieved in the interim by today’s revision to the existing delegation. I feel. that it ii important to highlight for you the basic limitations on the new deLegation, which also apply during this interim period. The first of these limitations 1. the process recommended by the Coneisi ency Committee for assuring clear accountability at the Regional level and adequate national consistency. I believe thi, process, a. outlined in Chapter III of the final report (p.37), strikes a reasonable balance between the need to have consistent application of regulation and policy nationally with the need for regional flexibility to address local issue.. These procedures, which go hand-in-hand with the delegation, will provide Regional Offices a mechanism to quickly identify issues that have national implications and should be discussed by all Regions, thus encouraging Regions to be accountable to one another when an individual Region feels a need to deviate from national policy. I consider this consistency process necessary for maintaining program integrity as we move forward to eliminate formal Headquarters review of SIP packageB in our efforts to streamline the process and maximize Regional authority. A second limitation of the delegation, which i. discussed in some detail in the final report (recommendation 4b, p.23), is that the Office of General Counsel will be provided an opportunity to review SIP packages containing significant adverse comments and the responses to those comments. Thirdly, during thi. interim period, the Office of Management and Budget will continue to review those SIP categories and Federal Register actions as defined in th€ July iS, 1994 memo from John Seit. to the Air Division Directors. Another issue for yciur consideration as we move forward to implement the recommendation. in this report is that although OGC will be available for consultation on specific issues, the Offices of Regional Couniiel (ORC) will carry the sole burden of providing legal review of SIP submittal. (recommendation 3e, p.22). Therefore, early and thorough r.view by ORC will be increasingly necessary. The SIP Improvement Report specifically recommends that the Regional program office consult with other offices in the RegLon--pi rticularly ORC--and reevaluate the Region’s internal procesu for reviewing SIPs (recommendation.4p, p.31). This effort should occur as soon as possible in order to ensure a smooth transition to th. new fully delegated program. ------- 3 If you have any questions regarding this delegation please call Pam Johnaon at (919) !41-5270. Attachment cc , 7. Seitz N.Oge A. Eckert 0. Hanson Regional Counsel, Regions I-X Air Division Director, Region. I-X ------- |