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PA Bulletin, Doc. No. 12-1297




[ 25 PA. CODE CHS. 121 AND 126 ]

Employer Trip Reduction

[42 Pa.B. 4459]
[Saturday, July 14, 2012]

 The Environmental Quality Board (Board) amends Chapters 121 and 126 (relating to general provisions; and motor vehicle and fuels programs) to read as set forth in Annex A. The purpose of this final-omitted rulemaking is to rescind the employer trip reduction (ETR) requirements in Chapter 126, Subchapter B for employers with 100 or more employees in the Commonwealth portion of the Philadelphia Consolidated Metropolitan Statistical Area (CMSA) to implement a program to reduce work-related vehicle trips.

 This final-omitted rulemaking deletes from § 121.1 (relating to definitions) the terms ''APO—average passenger occupancy,'' ''AVO—average vehicle occupancy,'' ''bus pool,'' ''commuting trips,'' ''employee,'' ''employer,'' ''peak travel period,'' ''Philadelphia CMSA,'' ''target area,'' ''telecommuter,'' ''transportation coordinator,'' ''van pool'' and ''worksite.'' This final-omitted rulemaking rescinds §§ 126.201—126.208 and Chapter 126, Appendix A, which were approved as a final-form rulemaking by the Board on September 21, 1993, and published at 24 Pa.B. 693 (January 29, 1994).

 Notice of proposed rulemaking is omitted under section 204(3) of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(3)), known as the Commonwealth Documents Law (CDL). Section 204(3) of the CDL provides that an agency may omit the notice of proposed rulemaking if the agency for good cause finds that the notice of proposed rulemaking procedure is in the circumstances impracticable, unnecessary or contrary to the public interest. Omission of notice of proposed rulemaking for the rescission of §§ 126.201—126.208, Chapter 126, Appendix A and the supporting terms in § 121.1 is appropriate because the notice of proposed rulemaking procedure in sections 201 and 202 of the CDL (45 P. S. §§ 1201 and 1202) is, in this instance, impracticable, unnecessary and contrary to the public interest. As more fully explained as follows, the ETR regulations were never implemented and emission reduction credits were not claimed for it in State Implementation Plan (SIP) revisions.

 This final-omitted rulemaking was adopted by order of the Board at its meeting of March 20, 2012.

A. Effective Date

 This final-omitted rulemaking is effective upon publication in the Pennsylvania Bulletin.

B. Contact Persons and Information

 For further information, contact Arleen Shulman, Chief, Division of Air Resource Management, Bureau of Air Quality, 12th Floor, Rachel Carson State Office Building, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 772-3436; or Kristen M. Furlan, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-omitted rulemaking is available on the Department of Environmental Protection's (Department) web site at (Keyword: Public Participation).

C. Statutory Authority

 The final-omitted rulemaking is being made under the authority of section 5 of the Air Pollution Control Act (APCA) (35 P. S. § 4005). Section 5(a) of the APCA grants the Board the authority to adopt rules and regulations for the prevention, control, reduction and abatement of air pollution in this Commonwealth.

D. Background of the Amendments

 The Commonwealth's final-form rulemaking published at 24 Pa.B. 693 adopted provisions requiring employers of 100 or more employees located in ''severe'' ozone nonattainment areas to develop and implement a program to reduce work-related vehicle trips by employees. At the time the final-form rulemaking was published, the Commonwealth portion of the Philadelphia CMSA (Bucks, Chester, Delaware, Montgomery and Philadelphia Counties) was the only area of this Commonwealth classified as a severe ozone nonattainment area. The final-form rulemaking required employers subject to the regulations to submit employee trip reduction plans to the Department by November 15, 1994, for employers with equal to or greater than 1,000 employees and by November 15, 1995, for affected employers with at least 100 but fewer than 1,000 employees.

 The Department adopted the 1994 regulations in response to section 182(d)(1)(B) of the Clean Air Act (CAA) (42 U.S.C.A. § 7511a(d)(1)(B)). In that section, Congress directed that a state with a severe ozone nonattainment area was required to submit a revision to the SIP requiring employers in the nonattainment area with 100 or more employees to develop compliance plans designed to increase the average passenger occupancy of their employees who commuted to work during the peak period by 25% above the average passenger occupancy of the nonattainment area. The Commonwealth submitted its final-form ETR regulations to the United States Environmental Protection Agency (EPA) as a SIP revision on May 2, 1994. The EPA has not acted upon the ETR SIP submittal.

 The Commonwealth's General Assembly passed the act of November 16, 1994 (P. L. 614, No. 95) (Act 95), which amended 75 Pa.C.S. § 4706 (relating to prohibition on expenditures for emission inspection program) to require the Governor to suspend implementation and enforcement of the ETR program until March 31, 1995, or until an alternative program with equivalent emission reductions was developed. Act 95 also stipulated that ''the Employer Trip Reduction Program or an alternative program shall not be required if the area classified as severe ozone nonattainment is reclassified as a serious ozone nonattainment area by the Environmental Protection Agency.''

 In 1995, the Department developed a policy document (Doc. No. 271-5000-001, published February 1996) explaining the actions the Department took in response to Act 95. In addition, the policy document stated that the Department would rescind the ETR regulations if the CAA was amended to make the program voluntary.

 In 1995, Congress amended the CAA to make the program voluntary. See Pub. L. No. 104-70 (December 23, 1995.) Additionally, the Philadelphia CMSA is now classified as a ''moderate'' nonattainment area, which is a lesser classification than ''severe'' or ''serious'' under the CAA's classification system that includes ''extreme,'' ''severe,'' ''serious,'' ''moderate'' and ''marginal'' areas, in that order.

 The rescission of Chapter 126, Subchapter B and Appendix A and the deletion of the related definitions in § 121.1 does not negatively affect the environmental air quality in this Commonwealth. The ETR regulations were never implemented and the Commonwealth did not claim emission reduction credits for them in SIP revisions.

 The final-omitted rulemaking was discussed with the Air Quality Technical Advisory Committee (AQTAC) on June 23, 2011. The AQTAC voted 11-2-2 to concur with the Department's recommendation to forward the final-omitted rulemaking to the Board. The final-omitted rulemaking was discussed with the Citizens Advisory Council (CAC) Air Committee on October 19, 2011. The CAC Air Committee did not have concerns. On the recommendation of the Air Committee, on November 15, 2011, the CAC voted to concur with proceeding to the Board.

E. Benefits, Costs and Compliance


 Rescission of the Department's ETR regulations will limit confusion for employers of 100 or more employees in the Commonwealth portion of the Philadelphia CMSA by reserving Chapter 126, Subchapter B and Appendix A.

Compliance Costs

 This final-omitted rulemaking does not require additional costs for compliance since the ETR final-form rulemaking was not implemented.

Compliance Assistance Plan

 This final-omitted rulemaking does not require a compliance assistance plan.

Paperwork Requirements

 Additional paperwork is not required as a result of this final-omitted rulemaking.

F. Regulatory Review

 Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on May 21, 2012, the Department submitted a copy of the final-omitted rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. On the same date, the regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101—732-506).

 Under section 5.1(j.2) of the Regulatory Review Act, on June 20, 2012, the final-omitted rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 21, 2012, and approved the final-omitted rulemaking.

G. Findings

 The Board finds that:

 (1) The amendments as set forth in Annex A are appropriate to rescind the ETR regulations.

 (2) Use of the final-omitted rulemaking procedure is appropriate because the notice of proposed rulemaking procedure in sections 201 and 202 of the CDL is, in this instance, impracticable, unnecessary and contrary to the public interest. Commonwealth legislation suspended implementation of the ETR program in Chapter 126, Subchapter B and Appendix A and nullified it once the nonattainment area was reclassified to ''moderate'' nonattainment. Further, Congress amended the CAA to make the program optional. The ETR regulations were never implemented and are not part of the Commonwealth's approved SIP.

 (3) This final-omitted rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in section C of this preamble and in the public interest.

H. Order

 The Board, acting under the authorizing statutes, orders that:

 (a) The regulations of the Department, 25 Pa. Code Chapters 121 and 126, are amended by amending § 121.1 and by deleting §§ 126.201—126.208 and Chapter 126, Appendix A to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

 (b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.

 (c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.

 (d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

 (e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.


 (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 42 Pa.B. 4297 (July 7, 2012).)

Fiscal Note: 7-471. No fiscal impact; (8) recommends adoption.

Annex A






§ 121.1. Definitions.

 The definitions in section 3 of the act (35 P. S. § 4003) apply to this article. In addition, the following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:

ABS welding adhesive or acrylonitrile-butadiene-styrene welding adhesive—An adhesive intended by the manufacturer to weld acrylonitrile-butadiene-styrene (ABS) pipe, which is made by reacting monomers of acrylonitrile, butadiene and styrene.

Ablative coating—A coating that chars when exposed to open flame or extreme temperatures, as would occur during the failure of an engine casing or during aerodynamic heating. The ablative char surface serves as an insulating barrier, protecting adjacent components from the heat or open flame.

*  *  *  *  *

Bulk gasoline terminal—A gasoline storage and distribution facility which has a daily throughput of 20,000 gallons (76,000 liters) or more of gasoline.

CARB—California Air Resources Board—The board established and empowered to regulate sources of air pollution in California, including motor vehicles, under California Health & Safety Code Section 39003.

*  *  *  *  *

Commercial interior adhesive—Materials used in the bonding of passenger cabin interior components which meet the Federal Aviation Administration (FAA) fireworthiness requirements.

Compatible epoxy primer—An aerospace vehicle or component primer that is compatible with the filled elastomeric coating and is epoxy based. The compatible substrate primer is an epoxy-polyamide primer used to promote adhesion of elastomeric coatings such as impact-resistant coatings.

*  *  *  *  *

Emissions unit—For purposes of Chapter 127, Subchapter E, a part of a facility that emits or has the potential to emit a regulated NSR pollutant including an electric utility steam generating unit as defined in this section. For the purposes of NSR requirements, there are two types of emissions units:

 (i) A new emissions unit, which is or will be newly constructed and which has existed for less than 2 years from the date the emissions unit first operated.

 (ii) An existing emissions unit is an emissions unit that does not meet the requirements in subparagraph (i). A replacement unit, as defined in this section, is an existing emissions unit.

Enamel—A coat of colored material, usually opaque, that is applied as a protective topcoat over a basecoat, primer or previously applied enamel coat. Another coating may be applied as a topcoat over the enamel.

*  *  *  *  *

Paving operation—The process of covering an area with stone, concrete, asphalt or other material in order to make a firm, level surface for travel. The term does not include compounds used exclusively as residential driveway sealing compounds are excluded.

Performance standard—For purposes of the regulation of hazardous air pollutants under section 112 of the Clean Air Act, the term includes design, equipment, work practice or operational standards or a combination thereof.

Perimeter bonded sheet flooring installation—The installation of sheet flooring with vinyl backing onto a nonporous substrate using an adhesive designed to be applied only to a strip of up to 4 inches wide around the perimeter of the sheet flooring.

Permitted production capacity—The maximum pull rate as stated in the plan approval, operating permit or Title V permit.

Petroleum refinery—A facility engaged in producing gasoline, aromatics, kerosene, distillate fuel oils, residual fuel oils, lubricants, asphalt or other products through distillation of petroleum or through redistillation, cracking, rearrangement or reforming of unfinished petroleum derivatives.

Phase 2 outdoor wood-fired boiler—An outdoor wood-fired boiler that has been certified or qualified by the EPA as meeting a particulate matter emission limit of 0.32 pounds per million Btu output or lower and is labeled accordingly.

Pittsburgh-Beaver Valley Area—The seven-county area comprised of the following Pennsylvania counties: Allegheny, Armstrong, Beaver, Butler, Fayette, Washington and Westmoreland.

*  *  *  *  *

Tank car—A rail car which is used for transporting liquids in bulk in an unpackaged form.

Temporary protective coating—A coating applied to provide scratch or corrosion protection during manufacturing, storage or transportation of aerosapce vehicles or components.

 (i) The term includes peelable protective coatings and alkaline removable coatings. These materials are not intended to protect against strong acid or alkaline solutions.

 (ii) The term does not include coatings that provide protection from acid or alkaline chemical processing.

*  *  *  *  *

Transitional low emission vehicle—A vehicle certified as a transitional low emission vehicle under the Clean Air Act.

Tread end cement—The application of a solvent-based cement to the tire tread ends.

*  *  *  *  *

Valves not externally regulated—Valves that have no external controls, such as in-line check valves.

Vapor balance system—A vapor transport system which directs the vapors from the vessel being loaded into either a vessel being unloaded or a vapor control system or vapor holding tank.

*  *  *  *  *

Working mode cover—A cover or solvent cleaning machine design that allows the cover to shield the cleaning machine openings from outside air disturbances while parts are being cleaned in the cleaning machine. A cover that is used during the working mode is opened only during parts entry and removal.

York air basin—The political subdivisions in York County of Manchester Township, North York Borough, Spring Garden Township, Springettsbury Township, West Manchester Township, West York Borough and City of York.


Subchapter B. (Reserved)

126.201—126.208. (Reserved).

Appendix A. (Reserved)

[Pa.B. Doc. No. 12-1297. Filed for public inspection July 13, 2012, 9:00 a.m.]

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