Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Attainment Determination, Redesignation of the Franklin County Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan and 2002 Base-Year Inventory

[Federal Register: July 25, 2007 (Volume 72, Number 142)]
[Rules and Regulations]
[Page 40746-40749]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jy07-7]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2007-0174; FRL-8445-6]

Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Attainment Determination, Redesignation of the Franklin
County Ozone Nonattainment Area to Attainment and Approval of the
Area's Maintenance Plan and 2002 Base-Year Inventory

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: EPA is approving a redesignation request and State
Implementation Plan (SIP) revisions submitted by the Commonwealth of
Pennsylvania. The Pennsylvania Department of Environmental Protection
(PADEP) is requesting that the Franklin County nonattainment area
(``Franklin County Area'' or ``Area'') be redesignated as attainment
for the 8-hour ozone national ambient air quality standard (NAAQS). In
conjunction with its redesignation request, the PADEP submitted SIP
revisions consisting of a maintenance plan for the Franklin County Area
that provides for continued attainment of the 8-hour ozone NAAQS for at
least 10 years after redesignation. EPA is approving the 8-hour
maintenance plan. PADEP also submitted a 2002 base-year inventory for
the Franklin County Area which EPA is approving. In addition, EPA is
approving the adequacy determination for the motor vehicle emission
budgets (MVEBs) that are identified in the Franklin County Area
maintenance plan for purposes of transportation conformity, and is
approving those MVEBs. EPA is approving the redesignation request, and
the maintenance plan, and the 2002 base-year emissions inventory as
revisions to the Pennsylvania SIP in accordance with the requirements
of the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on July 25, 2007
pursuant to the authority of 5 U.S.C. 553(d)(1).

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2007-0174. All documents in the docket are listed in
the http://www.regulations.gov Web site. Although listed in the
electronic docket, some information is not publicly available, i.e.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through
http://www.regulations.gov or in hard copy for public inspection during
normal business hours at the Air Protection Division, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103. Copies of the State submittal are available at the
Pennsylvania Department of Environmental Protection, Bureau of Air
Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg,
Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or
by e-mail at cripps.christopher@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On May 30, 2007 (72 FR 29914), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed
approval of Pennsylvania's redesignation request, a SIP revision that
establishes a maintenance plan for the Franklin County Area that
provides for continued attainment of the 8-hour ozone NAAQS for at
least 10 years after redesignation, and a 2002 base-year emissions
inventory. The formal SIP revisions were submitted by PADEP on December
14, 2006. Other specific requirements of Pennsylvania's redesignation
request and SIP revision for the maintenance plan, and the rationale
for EPA's proposed actions are explained in the NPR and will not be
restated here. No public comments were received on the NPR.
On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air
Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006). On June
8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No.
04-1201, in response to several petitions for rehearing, the DC Circuit
clarified that the Phase 1 Rule was vacated only with regard to those
parts of the rule that had been successfully challenged. Therefore, the
Phase 1 Rule provisions related to classifications for areas currently
classified under subpart 2 of Title I, part D of the Act as 8-hour
nonattainment areas, the 8-hour attainment dates, and the timing for
emissions reductions needed for attainment of the 8-hour

[[Page 40747]]

ozone NAAQS remain effective. The June 8 decision left intact the
Court's rejection of EPA's reasons for implementing the 8-hour standard
in certain nonattainment areas under subpart 1 in lieu of subpart 2. By
limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule
that had not been successfully challenged. The June 8 decision
reaffirmed the December 22, 2006 decision that EPA had improperly
failed to retain four measures required for 1-hour nonattainment areas
under the anti-backsliding provisions of the regulations: (1)
Nonattainment area nonattainment New Source Review (NSR) requirements
based on an area's 1-hour nonattainment classification; (2) Section 185
penalty fees for 1-hour severe or extreme nonattainment areas; and (3)
measures to be implemented pursuant to section 172(c)(9) or 182(c)(9)
of the Act, on the contingency of an area not making reasonable further
progress toward attainment of the 1-hour NAAQS, or for failure to
attain that NAAQS. In addition the June 8 decision clarified that the
Court's reference to conformity requirements for anti-backsliding
purposes was limited to requiring the continued use of 1-hour motor
vehicle emissions budgets until 8-hour budgets were available for 8-
hour conformity determinations, which is already required under EPA's
conformity regulations. The Court thus clarified that 1-hour conformity
determinations are not required for anti-backsliding purposes.
For the reasons set forth in the May 30, 2007 (72 FR 29914)
proposed rulemaking, EPA does not believe that the Court's rulings
alter any requirements relevant to this redesignation action so as to
preclude redesignation, and do not prevent EPA from finalizing this
redesignation. EPA believes that the Court's December 22, 2006 and June
8, 2007 decisions impose no impediment to moving forward with the
redesignation of the Franklin County Area to attainment, because even
in light of the Court's decisions, redesignation is appropriate under
the relevant redesignation provisions of the Act and longstanding
policies regarding redesignation requests.
In the May 30, 2007 (72 FR 29914) proposed rulemaking, EPA proposed
to find that the Franklin County Area had satisfied the requirements
under the 1-hour standard whether the 1-hour standard was deemed to be
reinstated or whether the Court's decision on the petition for
rehearing was modified to require something less than compliance with
all applicable 1-hour requirements. Because EPA proposed to find that
the Franklin County Area satisfied the requirements under either
scenario, EPA is proceeding to finalize the redesignation and to
conclude that the Franklin County Area met the requirements under the
1-hour standard applicable for purposes of redesignation under the 8-
hour standard. These include the provisions of EPA's anti-backsliding
rules, as well as the additional anti-backsliding provisions identified
by the court in its rulings. In its June 8, 2007 decision the Court
limited its vacatur so as to uphold those provisions of the anti-
backsliding requirements that were not successfully challenged.
Therefore, EPA finds that the Franklin County Area has met the anti-
backsliding requirements, see 40 CFR 51.900 et seq.; 70 FR 30592, 30604
(May 26, 2005), which apply by virtue of the Franklin County Area's
classification for the 1-hour ozone NAAQS, as well as the four
additional anti-backsliding provisions identified by the Court, or
alternatively, that such requirements are not applicable for purposes
of redesignation. In addition, with respect to the requirement for
transportation conformity under the 1-hour standard, the Court in its
June 8 decision clarified that for those areas with 1-hour motor
vehicle emissions budgets, anti-backsliding requires only that those 1-
hour budgets must be used for 8-hour conformity determinations until
replaced by 8-hour budgets. To meet this requirement, conformity
determinations in such areas must continue to comply with the
applicable requirements of EPA's conformity regulations at 40 CFR Part
93. The court clarified that 1-hour conformity determinations are not
required for anti-backsliding purposes.

II. Final Actions

EPA is approving the Commonwealth of Pennsylvania's redesignation
request, maintenance plan, and the 2002 base-year emissions inventory
because the requirements for approval have been satisfied. EPA has
evaluated Pennsylvania's redesignation request that was submitted on
December 14, 2006, and determined that it meets the redesignation
criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes
that the redesignation request and monitoring data demonstrate that the
Franklin County Area has attained the 8-hour ozone standard. The final
approval of this redesignation request will change the designation of
the Franklin County Area from nonattainment to attainment for the 8-
hour ozone standard. EPA is approving the maintenance plan for the
Franklin County Area submitted on December 14, 2006 as a revision to
the Pennsylvania SIP. EPA is also approving the MVEBs submitted by
PADEP in conjunction with its redesignation request. In addition, EPA
is approving the 2002 base-year emissions inventory submitted by PADEP
on December 14, 2006 as a revision to the Pennsylvania SIP. In this
final rulemaking, EPA is notifying the public that we have found that
the MVEBs for nitrogen oxides (NO_X) and volatile organic
compounds (VOCs) in the Franklin County Area for the 8-hour ozone
maintenance plan are adequate and approved for conformity purposes. As
a result of our finding, the Franklin County Area must use the MVEBs
from the submitted 8-hour ozone maintenance plan for future conformity
determinations. The adequate and approved MVEBs are provided in the
following table:

Adequate and Approved Motor Vehicle Emissions Budgets in Tons per Day
(TPD)--Rounded Upward to One Decimal Place
------------------------------------------------------------------------
Budget year NOX VOC
------------------------------------------------------------------------
2009.................................................. 12.7 7.3
2018.................................................. 6.7 5.1
------------------------------------------------------------------------

With respect to the 1-hour ozone NAAQS, EPA has determined pursuant
to section 181(b)(2) of the CAA that the Franklin County Area has
attained the 1-hour NAAQS for ozone. On the basis of this
determination, EPA is also determining that the following nonattainment
area requirements of part D to Title 1 of the CAA are not applicable to
the Franklin County Area for so long as it continues to attain the 1-
hour NAAQS for ozone: The requirements of section 172(c)(1) concerning
the submission of the ozone attainment demonstration and reasonably
available control measure requirements, the requirements of section
172(c)(2) concerning reasonable further progress (RFP), and the
requirements of section 172(c)(9) concerning contingency measures for
RFP or attainment. If a violation of the 1-hour ozone NAAQS is
monitored in the Franklin County 1-hour ozone nonattainment area, these
determinations shall no longer apply.

III. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the

[[Page 40748]]

Office of Management and Budget. For this reason, this action is also
not subject to Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use''
(66 FR 28355, May 22, 2001). This action merely approves state law as
meeting Federal requirements and imposes no additional requirements beyond
those imposed by state law. Redesignation of an area to attainment
under section 107(d)(3)(e) of the Clean Air 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 new
regulatory requirements on sources. Accordingly, the Administrator
certifies that this rule will not have a significant economic impact on
a substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it does not contain
any unfunded mandate or significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4). This rule also does not have tribal implications
because it will not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified by
Executive Order 13175 (59 FR 22951, November 9, 2000). Because this
action affects the status of a geographical area, does not impose any
new requirements on sources, or allows the state to avoid adopting or
implementing other requirements, this action also does not have
Federalism implications because it does not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action
merely approves a state rule implementing a Federal requirement, and
does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it approves a state rule implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Redesignation is an
action that affects the status of a geographical area and does not
impose any new requirements on sources. Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 24, 2007. 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, approving the redesignation of the Franklin County
Area to attainment for the 8-hour ozone NAAQS, the associated
maintenance plan, the 2002 base-year emissions inventory, and the MVEBs
identified in the maintenance plan, may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.

40 CFR Part 81

Environmental protection, Air pollution control, National parks,
Wilderness areas.

Dated: July 18, 2007.
James W. Newsom,
Acting Regional Administrator, Region III.

• 40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

• 1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania

• 2. In Sec. 52.2020, the table in paragraph (e)(1) is amended by adding
an entry for the 8-hour Ozone Maintenance Plan and the 2002 Base Year
Emissions Inventory for the Franklin County, Pennsylvania Area at the
end of the table to read as follows:

Sec. 52.2020 Identification of plan.

* * * * *
(e) * * *
(1) * * *

----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable State Additional
revision geographic area submittal date EPA approval date explanation
----------------------------------------------------------------------------------------------------------------

* * * * * * *
8-Hour Ozone Maintenance Plan and Franklin County Area 9/20/06, 7/25/07 [Insert
2002 Base Year Emissions (Franklin County). 11/08/06 page number where
Inventory. the document
begins].
----------------------------------------------------------------------------------------------------------------

[[Page 40749]]

• 3. Section 52.2037 is amended by adding paragraph (m) to read:

Sec. 52.2037 Control strategy plans for attainment and rate-of-
progress: Ozone.

* * * * *
(m) Determination--EPA has determined that, as of July 25, 2007,
the Franklin County ozone nonattainment area has attained the 1-hour
ozone standard and that the following requirements of section 172(c)(2)
of the Clean Air Act do not apply to this area for so long as the area
does not monitor any violations of the 1-hour ozone standard of 40 CFR
50.9: the attainment demonstration and reasonably available control
measure requirements of section 172(b)(1), the reasonable further
progress requirement of section 172(b)(2), and the related contingency
requirements of section 172(c)(9). If a violation of the 1-hour ozone
NAAQS is monitored in the Franklin County 1-hour ozone nonattainment
area, these determinations shall no longer apply.

PART 81--[AMENDED]

• 4. The authority citation for part 81 continues to read as follows:

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

• 5. In Sec. 81.339, the table entitled ``Pennsylvania-Ozone (8-Hour
Standard)'' is amended by revising the entry for the Franklin County,
PA Area to read as follows:

Sec. 81.339 Pennsylvania

* * * * *

Pennsylvania--Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area --------------------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Franklin Co., PA:
Franklin County.......... July 25, 2007............................. Attainment.................

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian County located in each county or area, except otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *
[FR Doc. 07-3631 Filed 7-24-07; 8:45 am]
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Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Attainment Determination, Redesignation of the Franklin County Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan and 2002 Base-Year Inventory

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