Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Florida Change in National Policy Regarding Applicability of Conformity Requirements to Redesignation Requests

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: December 7, 1995 (Volume 60, Number 235)]
[Rules and Regulations]
[Page 62748-62753]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81

[FL63-1-7143a; FRL-5340-7]

Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Florida Change in
National Policy Regarding Applicability of Conformity Requirements to
Redesignation Requests

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: On February 7, 1995, the State of Florida, through the Florida
Department of Environmental Protection (FDEP), submitted a maintenance
plan and a request to redesignate the Tampa area from marginal
nonattainment to attainment for ozone (O₃). The Tampa O₃
nonattainment area consists of Hillsborough and Pinellas Counties.
Under the Clean Air Act as amended in 1990 (CAA), designations can be
revised if sufficient data are available to warrant such revisions and
the CAA redesignation requirements are satisfied. In this action, EPA
is approving Florida's request because it meets the maintenance plan
and redesignation requirements set forth in the CAA, and EPA is also
approving the 1990 base year emission inventory for the Tampa area.

DATES: This action will be effective February 5, 1996, unless adverse
or critical comments are received by January 8, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.

ADDRESSES: Written comments on this action should be addressed to Joey
LeVasseur, at the EPA Regional Office listed below.
Copies of the documents relative 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.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365.
Florida Department of Environmental Regulation, Twin Towers Office
Building, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400.
Hillsborough County Environmental Protection Commission, 1410 North
21st Street, Tampa, Florida 33605.
Pinellas County Department of Environmental Management, Division of Air
Quality, 300 S. Garden Avenue, Clearwater, Florida 34616.

FOR FURTHER INFORMATION CONTACT: Joey LeVasseur, Regulatory Planning
and Development Section, Air Programs Branch, Air, Pesticides & Toxics
Management Division, Region 4 Environmental Protection Agency, 345
Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is
404/347-3555 ext.4215. Reference file FL63-1-7143a.

SUPPLEMENTARY INFORMATION: The Clean Air Act, as amended in 1977 (1977
Act) required areas that were designated nonattainment based on a
failure to meet the O₃ national ambient air quality standard
(NAAQS) to develop SIPs with sufficient control measures to
expeditiously attain and maintain the standard. The Tampa-St.
Petersburg-Clearwater area (Tampa), comprised of Hillsborough and
Pinellas Counties, was designated under section 107 of the 1977 Act as
nonattainment with respect to the O₃ NAAQS on March 3, 1978. [43
FR 8964, 40 CFR 81.310] In accordance with section 110 of the 1977 Act,
the State submitted a part D O₃ SIP on April 30, 1979, which was
supplemented on August 27, 1979, and January 23, 1980, which EPA
conditionally approved on March 18, 1980, and fully approved on May 14,
1981, as meeting the requirements of section 110 and part D of the 1977
Act.
On November 15, 1990, the CAA Amendments of 1990 were enacted (1990
Amendments). [Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C.
7401-7671q] The nonattainment designation of Tampa was continued by
operation of law pursuant to section 107(d)(1)(C)(i) of the 1990
Amendments. Furthermore, it was classified as marginal for O₃
according to section 181(a)(1). (See 56 FR 56694 (Nov. 6, 1991) and 57
FR 56762 (Nov. 30, 1992), codified at 40 CFR 81.310).
Tampa more recently has ambient monitoring data that show no
violations of the O₃ NAAQS, during the period 1990 through 1994.
In addition, there have been no exceedances reported for the 1995
O₃ season. Therefore, in an effort to comply with the 1990
Amendments and to ensure continued attainment of the NAAQS, Florida
submitted an O₃ maintenance SIP for the Tampa area on February 7,
1995, and also requested redesignation of the area to attainment with
respect to the O₃ NAAQS.
The 1990 Amendments revised section 107(d)(1)(E) to provide five
specific requirements that an area must meet in order to be
redesignated from nonattainment to attainment.

The area must have attained the applicable NAAQS;
The area must meet all relevant requirements under section 110
and part D of the CAA;
The area must have a fully approved SIP under section 110(k) of
the CAA;
The air quality improvement must be permanent and enforceable;
and
The area must have a fully approved maintenance plan pursuant to
section 175A of the CAA.
The Florida redesignation request for the Tampa area meets the five
requirements of section 107(d)(3)(E), noted above. The following is a
brief description of how the State has fulfilled each of these
requirements. Because the maintenance plan is a critical element of the
redesignation request, EPA will discuss its evaluation of the
maintenance plan under its analysis of the redesignation request.

Attainment of the O₃ NAAQS

The Florida request is based on an analysis of quality assured
O₃ air quality data which is relevant to the maintenance plan and
to the redesignation request. The ambient O₃ data for the calendar
years 1990 through

[[Page 62749]]
1992 shows an exceedance rate of less than 1.0 per year of the O₃
NAAQS in the Tampa area. (See 40 CFR 50.9 and Appendix H). In addition,
there have been no ambient air exceedances in 1993, 1994 or to date in
1995 for O₃. Because the Tampa area has complete quality-assured
data showing no violations of the standard over the most recent
consecutive three calendar year period, the Tampa area has met the
first statutory criterion of attainment of the O₃ NAAQS. Florida
has committed to continue monitoring in this area in accordance with 40
CFR part 58.

2. Meeting Applicable Requirements of Section 110 and Part D

On May 14, 1981, EPA fully approved Florida's SIP for the Tampa
area as meeting the requirements of section 110(a)(2) and part D of the
1977 Act (46 FR 26640). The 1990 Amendments, however, modified section
110(a)(2) and, under part D, revised section 172 and added new
requirements for all nonattainment areas. Therefore, for purposes of
redesignation, to meet the requirement that the SIP contain all
applicable requirements under the CAA, EPA has reviewed the SIP to
ensure that it contains all measures that were due under the 1990
Amendments prior to or at the time the State submitted its
redesignation request. EPA interprets section 107(d)(3)(E)(v) to mean
that for a redesignation request to be approved, the state has met all
requirements that applied to the subject area prior to the submission
of a complete redesignation request. Requirements of the CAA that come
due subsequently continue to be applicable at those later dates (see
section 175A(c)) and, if the redesignation is disapproved, the state
remains obligated to fulfill those requirements.

A. Section 110 Requirements

Although section 110 was amended by the 1990 Amendments, the Tampa
SIP meets the requirements of amended section 110(a)(2). A number of
the requirements did not change in substance and, therefore, EPA
believes that the pre-amendment SIP met these requirements. As to those
requirements that were amended, (see 57 FR 27936 and 23939, June 23,
1993), many are duplicative of other requirements of the CAA. EPA has
analyzed the SIP and determined that it is consistent with the
requirements of amended section 110(a)(2).

B. Part D Requirements

Before Tampa may be redesignated to attainment, it also must have
fulfilled the applicable requirements of part D. Under part D, an
area's classification indicates the requirements to which it will be
subject. Subpart 1 of part D sets forth the basic nonattainment
requirements applicable to all nonattainment areas, classified as well
as nonclassifiable. Subpart 2 of part D establishes additional
requirements for nonattainment areas classified under table 1 of
section 181(a). The Tampa area was classified as marginal (See 56 FR
56694, codified at 40 CFR 81.530). Therefore, in order to be
redesignated to attainment, the State must meet the applicable
requirements of subpart 1 of part D, specifically sections 172(c) and
176, and is subject to requirements of subpart 2 of part D.
B.1. Subpart 1 of part D--Section 172(c) Plan Provisions
Under section 172(b), the Administrator established that States
containing nonattainment areas shall submit a plan or plan revision
meeting the applicable requirements of section 172(c) no later than
three years after an area is designated as nonattainment, i.e., unless
EPA establishes an earlier date. EPA had not determined that these
requirements were applicable to classified O₃ nonattainment areas
on or before February 7, 1995, the date that the State of Florida
submitted a complete redesignation request for the Tampa area.
Therefore, the State was not required to meet these requirements for
purposes of redesignation. EPA has determined that the section
172(c)(2) reasonable further progress (RFP) requirement was not
applicable to the Tampa redesignation. Also the section 172(c)(9)
contingency measures and additional section 172(c)(1) non-RACT
reasonable available control measures (RACM) beyond what may already be
required in the SIP are no longer necessary.
The section 172(c)(3) emissions inventory requirement has been met
by the submission and approval (in this action) of the 1990 base year
inventory required under subpart 2 of part D, section 182(a)(1).
As for the section 172(c)(5) NSR requirement, EPA has determined
that areas being redesignated need not comply with the NSR requirement
prior to redesignation provided that the area demonstrates maintenance
of the standard without part D NSR in effect. See memorandum from Mary
Nichols, Assistant Administrator for Air and Radiation, dated October
14, 1994, entitled Part D New Source Review (part D NSR) Requirements
for Areas Requesting Redesignation to Attainment. The rationale for
this view is described fully in that memorandum, and is based on the
Agency's authority to establish de minimis exceptions to statutory
requirements. See Alabama Power Co. v. Costle, 636 F. 2d 323, 360-61
(D.C. Cir. 1979). However, the State of Florida does have a fully
approved part D NSR rule.
Finally, for purposes of redesignation, the Tampa SIP was reviewed
to ensure that all requirements of section 110(a)(2), containing
general SIP elements, were satisfied. As noted above, EPA believes the
SIP satisfies all of those requirements.
B.2. Subpart 1 of Part D--Section 176 Conformity Plan Provisions
Section 176(c) of the CAA requires States to 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
applicable State SIP. The requirement to determine conformity applies
to transportation plans, programs and projects developed, funded or
approved under Title 23 U.S.C. or the Federal Transit Act
(``transportation conformity''), as well as to all other Federal
actions (``general conformity''). Section 176 further provides that the
conformity revisions to be submitted by the States must be consistent
with Federal conformity regulations that the CAA required EPA to
promulgate. Congress provided for the State revisions to be submitted
one year after the date for promulgation of final EPA conformity
regulations. When that date passed without such promulgation, EPA's
General Preamble for the Implementation of Title I informed States that
its conformity regulations would establish a submittal date (see 57 FR
13498, 13557 (April 16, 1992)).
EPA promulgated final transportation conformity regulations on
November 24, 1993 (58 FR 62118), and general conformity regulations on
November 30, 1993 (58 FR 63214). These conformity rules require that
States adopt both transportation and general conformity provisions in
the SIP for areas designated nonattainment or subject to a maintenance
plan approved under CAA section 175A. Pursuant to 40 CFR 51.396 of the
transportation conformity rule and 40 CFR 51.851 of the general
conformity rule, the State of Florida is required to submit a SIP
revision containing transportation conformity criteria and procedures
consistent with those established in the Federal rule by November 25,
1994. Similarly, the State of Florida is required to submit a SIP
revision containing general conformity criteria and procedures
consistent with those established in the Federal rule by

[[Page 62750]]
December 1, 1994. The conformity rules for Florida have not yet been
approved.
Although this redesignation request was submitted to EPA after the
due dates for the SIP revisions for transportation conformity [58 FR
62188] and general conformity [58 FR 63214] rules, EPA believes it is
reasonable to interpret the conformity requirements as not being
applicable requirements for purposes of evaluating the redesignation
request under section 107(d). The rationale for this is based on a
combination of two factors. First, the requirement to submit SIP
revisions to comply with the conformity provisions of the Act continues
to apply to areas after redesignation to attainment. Therefore, the
State remains obligated to adopt the transportation and general
conformity rules even after redesignation and would risk sanctions for
failure to do so. While redesignation of an area to attainment enables
the area to avoid further compliance with most requirements of section
110 and part D, since those requirements are linked to the
nonattainment status of an area, the conformity requirements apply to
both nonattainment and maintenance areas. Second, EPA's federal
conformity rules require the performance of conformity analyses in the
absence of state-adopted rules. Therefore, a delay in adopting State
rules does not relieve an area from the obligation to implement
conformity requirements.
Because areas are subject to the conformity requirements regardless
of whether they are redesignated to attainment and must implement
conformity under Federal rules if State rules are not yet adopted, EPA
believes it is reasonable to view these requirements as not being
applicable requirements for purposes of evaluating a redesignation
request.
Therefore, with this notice, EPA is modifying its national policy
regarding the interpretation of the provisions of section 107(d)(3)(E)
concerning the applicable requirements for purposes of reviewing an
ozone redesignation request. Under this new policy, for the reasons
just discussed, EPA believes that the ozone redesignation request for
the Tampa area may be approved notwithstanding the lack of submitted
and approved state transportation and general conformity rules.
B.3. Subpart 2 of Part D--Section 182(a) Requirements
The CAA was amended on November 15, 1990, Public Law 101-549, 104
Stat. 2399, codified at 42 U.S.C. 7401-7671q. EPA was required to
classify O₃ nonattainment areas according to the severity of their
problem. The Tampa area was designated as marginal O₃
nonattainment (See 40 CFR 81.310). Because this area is marginal, the
area must meet section 182(a) of the CAA. EPA has analyzed the SIP and
determined that it is consistent with the requirements of amended
section 182. Below is a summary of how the area has met the
requirements of these sections.
(1) Emissions Inventory
The CAA required an inventory of all actual emissions from all
sources, as described in section 172(c)(3) by November 15, 1992. On
November 16, 1992, FDEP submitted an emission inventory for the Tampa
area. This notice is approving the base year inventory for the Tampa
area.
(2) Reasonably Available Control Technology (RACT)
To be redesignated, all SIP revisions required by section
182(a)(2)(A) and 182(b)(2) concerning RACT requirements must have been
submitted to EPA and fully approved. Florida has met all RACT
requirements.
(3) Emissions Statements
Section 182(a)(3) of the CAA required a SIP submission by November
15, 1992, to require stationary sources of NO_Xand VOCs to provide
statements of actual emissions. Florida submitted an annual emissions
statement SIP revision on November 13, 1992. This revision was approved
in the Federal Register on August 4, 1994.

3. Fully Approved SIP Under Section 110(k) of the CAA

Based on the approval of provisions under the pre-amended CAA and
EPA's prior approval of SIP revisions under the 1990 Amendments, EPA
has determined that the Tampa area has a fully approved SIP under
section 110(k), which also meets the applicable requirements of section
110 and part D as discussed above.

4. Improvement in Air Quality Due to Permanent and Enforceable Measures

Under the pre-amended CAA, EPA approved the Florida SIP control
strategy for the Tampa nonattainment area, satisfied that the rules and
the emission reductions achieved as a result of those rules were
enforceable. The control measures to which the emission reductions are
attributed are VOC RACT regulations, the Federal Motor Vehicle Control
Program (FMVCP), and lower Reid Vapor Pressure (RVP). VOC emissions
from stage I sources were reduced by 40 10n 1990 due to VOC RACT. The
FMVCP reduced VOC emissions from motor vehicles by 14.2 0.000000rom 1988 to
1990. The reduction in RVP from 10.8 psi in 1988 to 9.0 psi in 1990 has
reduced summertime VOC mobile source emissions by 30.8
In association with its emission inventory discussed below, the
State of Florida has demonstrated that actual enforceable emission
reductions are responsible for the air quality improvement and that the
VOC emissions in the base year are not artificially low due to local
economic downturn. EPA finds that the combination of existing EPAapproved
state and federal measures contribute to the permanence and
enforceability of reduction in ambient O₃ levels that have allowed
the area to attain the NAAQS.

5. Fully Approved Maintenance Plan Under Section 175A

Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
The plan must demonstrate continued attainment of the applicable NAAQS
for at least ten years after the Administrator approves a redesignation
to attainment. Eight years after the redesignation, the State must
submit a revised maintenance plan which demonstrates attainment for the
ten years following the initial ten-year period. To provide for the
possibility of future NAAQS violations, the maintenance plan must
contain contingency measures, with a schedule for implementation,
adequate to assure prompt correction of any air quality problems. In
this notice, EPA is approving the State of Florida's maintenance plan
for the Tampa area because EPA finds that Florida's submittal meets the
requirements of section 175A.

A. Emissions Inventory--Base Year Inventory

On November 16, 1992, the State of Florida submitted comprehensive
inventories of VOC, NO<INF>X, and CO emissions from the Tampa area. The
inventories include biogenic, area, stationary, and mobile sources
using 1990 as the base year for calculations to demonstrate
maintenance. The 1990 inventory is considered representative of
attainment conditions because the NAAQS was not violated during 1990.
EPA is approving the 1990 base year inventory in this document.
The State submittal contains the detailed inventory data and
summaries by county and source category. The comprehensive base year
emissions inventory was submitted in the NEDS format. Finally, this
inventory was prepared in accordance with EPA guidance. It also
contains summary

[[Page 62751]]
tables of the base year and projected maintenance year inventories.
EPA's TSD contains more in-depth details regarding the base year
inventory for the Tampa area.

VOC Emissions Inventory Summary
[Tons per day]
1990 1994 1997 2000 2005
NO_XEmissions Inventory Summary
[Tons per day]
1990 1994 1997 2000 2005
CO Emissions Inventory Summary
[Tons per day]
1990
Florida-Ozone
Designation Classification
Date \1\ Type Date \1\ Type
Attainment

* * * * * * *

* * * * * * *
\1\ This date is November 15, 1990, unless otherwise noted.

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Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Florida Change in National Policy Regarding Applicability of Conformity Requirements to Redesignation Requests

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