Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation of the Allentown-Bethlehem-Easton 8-hour Ozone Nonattainment Area to Attainment and Approval of the Maintenance Plan and 2002 Base-Year Inventory
[Federal Register: January 7, 2008 (Volume 73, Number 4)]
[Proposed Rules]
[Page 1162-1175]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja08-19]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2007-0606; FRL-8513-9]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Redesignation of the Allentown-Bethlehem-Easton 8-hour
Ozone Nonattainment Area to Attainment and Approval of the Maintenance
Plan and 2002 Base-Year Inventory
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a redesignation request and State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Pennsylvania. The Pennsylvania Department of Environmental Protection
(PADEP) is requesting that the Allentown-Bethlehem-Easton ozone
nonattainment Area (referred to also as the ``Allentown Area'' or
``Area'') be redesignated as attainment for the 8-hour ozone national
ambient air quality standard (NAAQS). The Allentown Area is comprised
of Carbon, Lehigh, and Northampton Counties. EPA is proposing to
approve the ozone redesignation request for the Allentown Area. In
conjunction with its redesignation request, the Commonwealth submitted
a SIP revision consisting of a maintenance plan for the Allentown Area
that provides for continued attainment of the 8-hour ozone NAAQS for at
least 10 years after redesignation. EPA is proposing to make a
determination that the Allentown Area has attained the 8-hour ozone
NAAQS, based upon three years of complete, quality-assured ambient air
quality monitoring data for 2004-2006. EPA's proposed approval of the
8-hour ozone redesignation request is based on its determination that
the Allentown Area has met the criteria for redesignation to attainment
specified in the Clean Air Act (``the Act''). In addition, the
Commonwealth of Pennsylvania has also submitted a 2002 base-year
inventory for the Allentown Area, and EPA is proposing to approve that
inventory for the Area as a SIP revision. EPA is also providing
information on the status of its adequacy determination for the motor
vehicle emission budgets (MVEBs) that are identified in the maintenance
plan for the Allentown Area for purposes of transportation conformity,
and is proposing to approve those MVEBs. EPA is proposing approval of
the redesignation request, the maintenance plan, and 2002 base-year
inventory SIP revisions in accordance with the requirements of the Act.
DATES: Written comments must be received on or before February 6, 2008.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0606 by one of the following methods:
A. http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: fernandez.cristina@epa.gov.
C. Mail: EPA-R03-OAR-2007-0606, Cristina Fernandez, Chief, Air
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2007-0606. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.
The http://www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-mail
comment directly to EPA without going through http://www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 in http://www.regulations.gov
or in hard copy 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: Brian Rehn, (215) 814-2176, or by e-
mail at rehn.brian@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. What Are the Clean Air Actions EPA Is Proposing to Take?
II. What Is the Background for These Proposed Actions?
III. What Are the Criteria for Redesignation to Attainment?
IV. Why Is EPA Taking These Actions?
V. What Would Be the Effect of These Actions?
VI. What Is EPA's Analysis of the Commonwealth's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and
Identified in the
[[Page 1163]]
Maintenance Plan for the Allentown-Bethlehem-Easton Area Plan
Adequate and Approvable?
VIII. Proposed Actions
IX. Statutory and Executive Order Reviews
I. What Are the Clean Air Actions EPA Is Proposing to Take?
On June 26, 2007, the PADEP formally submitted a request to
redesignate the Allentown Area from nonattainment to attainment of the
8-hour NAAQS for ozone. Concurrently, Pennsylvania submitted a
maintenance plan for the Allentown Area as a SIP revision to ensure
continued attainment in the Area over the next 11 years. PADEP also
submitted a 2002 base-year inventory for the Allentown Area as a SIP
revision. On August 9, 2007, PADEP submitted a technical correction to
the emission inventory to submit inventory support documents that were
omitted from the June 26, 2007 SIP submittal.
The Allentown Area is comprised of Carbon, Lehigh, and Northampton
Counties. It is currently designated a basic 8-hour ozone nonattainment
area. EPA is proposing to determine that the Allentown Area has
attained the 8-hour ozone NAAQS and that it has met the requirements
for redesignation pursuant to section 107(d)(3)(E) of the Clean Air
Act. EPA is, therefore, proposing to approve the redesignation request
to change the designation of the Allentown Area from nonattainment to
attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve
the Allentown maintenance plan as a SIP revision for the Area (such
approval being one of the Act criteria for redesignation to attainment
status). The maintenance plan is designed to ensure continued
attainment in the Allentown Area for the next 11 years. EPA is also
proposing to approve the 2002 base-year inventory for the Allentown
Area as a SIP revision. Additionally, EPA is announcing its action on
the adequacy process for the MVEBs identified in the Allentown
maintenance plan, and proposing to approve the MVEBs identified for
volatile organic compounds (VOCs) and nitrogen oxides (NOX)
for the Area for transportation conformity purposes.
II. What Is the Background for These Proposed Actions?
A. General
Ground-level ozone is not emitted directly by sources. Rather,
emissions of NOX and VOC react in the presence of sunlight
to form ground-level ozone. The air pollutants NOX and VOC
are referred to as precursors of ozone. The Clean Air Act establishes a
process for air quality management through the attainment and
maintenance of the NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour standard. EPA designated, as nonattainment,
any area violating the 8-hour ozone NAAQS based on the air quality data
for the three years of 2001-2003. These were the most recent three
years of data at the time EPA designated 8-hour areas. The Allentown
Area was designated a basic 8-hour ozone nonattainment area in a
Federal Register notice signed on April 15, 2004 and published on April
30, 2004 (69 FR 23857), based on its exceedance of the 8-hour health-
based standard for ozone during the years 2001-2003.
On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to
revoke the 1-hour ozone NAAQS in the Allentown Area (as well as most
other areas of the country), effective June 15, 2005. See 40 CFR
50.9(b); 69 FR at 23996 (April 30, 2004); 70 FR 44470 (August 3, 2005).
However, 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)
(hereafter ``South Coast''). 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 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
measures required for 1-hour nonattainment areas under the anti-
backsliding provisions of the regulations: (1) Nonattainment area 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.
Elsewhere in this document, mainly in section VI. B. ``The Allentown-
Bethlehem-Easton Area Has Met All Applicable Requirements Under Section
110 and Part D of the Clean Air Act and has a Fully Approved SIP Under
Section 110(k) of the Act'', EPA discusses its rationale why the
decision in South Coast is not an impediment to redesignating the
Allentown Area to attainment of the 8-hour ozone NAAQS.
The Clean Air Act, title I, Part D, contains two sets of
provisions--subpart 1 and subpart 2--that address planning and control
requirements for nonattainment areas. Subpart 1 (which EPA refers to as
``basic'' nonattainment) contains general, less prescriptive
requirements for nonattainment areas for any pollutant--including
ozone--governed by a NAAQS. Subpart 2 (which EPA refers to as
``classified'' nonattainment) provides more specific requirements for
ozone nonattainment areas. In 2004, the Allentown Area was classified a
basic 8-hour ozone nonattainment area based on air quality monitoring
data from 2001-2003. Therefore, the Area is subject to the requirements
of subpart 1 of Part D.
Under 40 CFR part 50, the 8-hour ozone standard is attained when
the 3-year average of the annual fourth-highest daily maximum 8-hour
average ambient air quality ozone concentration is less than or equal
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR
23857 (April 30, 2004) for further information. Ambient air quality
monitoring data for the 3-year period must meet data completeness
requirements. The data completeness requirements are met when the
average percent of days with valid ambient monitoring data is greater
than 90 percent, and no single year has less than 75 percent data
completeness
[[Page 1164]]
as determined in Appendix I of 40 CFR part 50. The ozone monitoring
data indicates that the Allentown Area has a design value of 0.084 ppm
for the 3-year period of 2004-2006, using complete, quality-assured
data. Therefore, the ambient ozone data for the Allentown Area
indicates no violations of the 8-hour ozone standard.
B. The Allentown-Bethlehem-Easton Area
The Allentown Area consists of Carbon, Lehigh, and Northampton
Counties in Pennsylvania. Prior to its designation as an 8-hour ozone
nonattainment area, the Allentown Area was a marginal 1-hour ozone
nonattainment area. Therefore, the Allentown Area was subject to
requirements for marginal nonattainment areas pursuant to section
182(a) of the Act. See 56 FR 56694 (November 6, 1991). EPA determined
that the Allentown 1-hour ozone nonattainment Area had attained the 1-
hour ozone NAAQS by the November 15, 1993 attainment date (60 FR 3349,
January 17, 1995).
On June 26, 2007, the PADEP requested that the Allentown Area be
redesignated to attainment for the 8-hour ozone standard. The
redesignation request included 3 years of complete, quality-assured
data for the period of 2004-2006, indicating that the 8-hour NAAQS for
ozone had been achieved in the Area. The data satisfies the Act
requirements that the 3-year average of the annual fourth-highest daily
maximum 8-hour average ozone concentration (commonly referred to as the
area's design value), must be less than or equal to 0.08 ppm (i.e.,
0.084 ppm when rounding is considered). Under the Act, a nonattainment
area may be redesignated if sufficient complete, quality-assured data
is available to determine that the area attained the standard and the
area meets the redesignation requirements set forth in section
107(d)(3)(E) of the Act.
III. What Are the Criteria for Redesignation to Attainment?
The Clean Air Act provides the requirements for redesignating a
nonattainment area to attainment. Specifically, section 107(d)(3)(E)
allows for redesignation, providing that:
(1) EPA determines that the area has attained the applicable NAAQS;
(2) EPA has fully approved the applicable implementation plan for
the area under section 110(k);
(3) EPA determines that the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from
implementation of the applicable SIP and applicable Federal air pollutant
control regulations and other permanent and enforceable reductions;
(4) EPA has fully approved a maintenance plan for the area as
meeting the requirements of section 175A; and
(5) The State containing such area has met all requirements
applicable to the area under section 110 and Part D.
EPA provided guidance on redesignations in the General Preamble for
the Implementation of Title I of the Clean Air Act, on April 16, 1992
(57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR
18070). EPA has provided further guidance on processing redesignation
requests in the following documents:
• ``Ozone and Carbon Monoxide Design Value Calculations,''
Memorandum from Bill Laxton, June, 18, 1990;
• ``Maintenance Plans for Redesignation of Ozone and Carbon
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief,
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
• ``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
• ``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
• ``State Implementation Plan (SIP) Actions Submitted in
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John
Calcagni, Director, Air Quality Management Division, October 28, 1992;
• ``Technical Support Documents (TSDs) for Redesignation
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
• ``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 November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17, 1993;
• Memorandum from D. Kent Berry, Acting Director, Air
Quality Management Division, to Air Division Directors, Regions 1-10,
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and
CO Nonattainment Areas,'' dated November 30, 1993;
• ``Part D New Source Review (Part D NSR) Requirements for
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
• ``Reasonable Further Progress, Attainment Demonstration,
and Related Requirements for Ozone Nonattainment Areas Meeting the
Ozone National Ambient Air Quality Standard,'' Memorandum from John S.
Seitz, Director, Office of Air Quality Planning and Standards, May 10,
1995.
IV. Why Is EPA Taking These Actions?
On June 26, 2007, the PADEP requested redesignation of the
Allentown Area to attainment for the 8-hour ozone standard.
Simultaneously, PADEP submitted a maintenance plan for the Allentown
Area as a SIP revision, to ensure continued attainment of the 8-hour
ozone NAAQS over the next 11 years, until 2018. PADEP also submitted a
2002 base-year inventory concurrently with its maintenance plan as a
SIP revision. On August 9, 2007, PADEP submitted a technical correction
SIP revision to submit emission inventory support documents that were
omitted from the June 26, 2007 SIP submittal. EPA has determined that
the Allentown Area has attained the 8-hour ozone standard and has met
the requirements for redesignation set forth in section 107(d)(3)(E).
V. What Would Be the Effect of These Actions?
Approval of the redesignation request would change the official
designation of the Allentown Area from nonattainment to attainment for
the 8-hour ozone NAAQS found at 40 CFR part 81. It would also
incorporate into the Pennsylvania SIP a 2002 base-year inventory and a
maintenance plan ensuring continued attainment of the 8-hour ozone
NAAQS in the Allentown Area for the next 11 years, until 2018. The
maintenance plan includes contingency measures to remedy any future
violations of the 8-hour NAAQS (should they occur), and identifies the
NOX and VOC MVEBs for transportation conformity purposes for
the years 2009 and 2018.
Transportation agencies, working in conjunction with Metropolitan
Planning Organizations (MPOs) are responsible for making timely
transportation conformity determinations. There are two separate MPOs
responsible for transportation planning within the
[[Page 1165]]
Allentown Area. They are the Lehigh Valley Transportation Study (for
Lehigh and Northampton Counties), and the Northeastern Pennsylvania
Alliance (NEPA) (for Carbon County). Pennsylvania has established
separate motor vehicle emission budgets for each MPO for their
respective portion of the Allentown Area. EPA's transportation
conformity regulations (40 CFR 93.124(d)) allow a SIP to establish sub-
regional motor vehicle emission budgets for each MPO within a
nonattainment area if it contains more than one MPO.
These MVEBs are displayed in the following table:
Table 1a--Allentown-Bethlehem-Easton Motor Vehicle Emissions Budgets
Lehigh Valley Transportation Study MPO
[(Lehigh and Northampton Counties portion of the Area), in Tons per
Summer Day (tpsd)]
------------------------------------------------------------------------
Year VOC NOX
------------------------------------------------------------------------
2009.............................................. 20.6 28.9
2018.............................................. 12.4 12.4
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Table 1b--Allentown-Bethlehem-Easton Motor Vehicle Emissions Budgets
Northeast Pennsylvania Alliance MPO
[(Carbon County portion of the Area), in Tons per Summer Day (tpsd)]
------------------------------------------------------------------------
Year VOC NOX
------------------------------------------------------------------------
2009.............................................. 3.4 5.9
2018.............................................. 2.3 3.0
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VI. What Is EPA's Analysis of the Commonwealth's Request?
EPA is proposing to determine that the Allentown Area has attained
the 8-hour ozone standard, and that all other redesignation criteria
have been met. The following is a description of how the PADEP's June
26, 2007 submittal satisfies the requirements of section 107(d)(3)(E)
of the Act.
A. The Allentown Area Has Attained the 8-Hour NAAQS
EPA is proposing to determine that the Allentown Area has attained
the 8-hour ozone NAAQS. For ozone, an area may be considered to be
attaining the 8-hour ozone NAAQS if there are no violations, as
determined in accordance with 40 CFR 50.10 and Appendix I of Part 50,
based on three complete, consecutive calendar years of quality-assured
air quality monitoring data. To attain this standard, the design value,
which is the 3-year average of the fourth-highest daily maximum 8-hour
average ozone concentrations measured at each monitor, within the area,
over each year must not exceed the ozone standard of 0.08 ppm. Based on
the rounding convention described in 40 CFR part 50, Appendix I, the
standard is attained if the design value is 0.084 ppm or below. The
data must be collected and quality-assured in accordance with 40 CFR
part 58, and recorded in the Air Quality System (AQS). The monitors
generally should have remained at the same location for the duration of
the monitoring period required for demonstrating attainment.
In the Allentown Area, there were three ozone monitors that
measured ambient ozone air quality between 2004 and 2006. One of these
monitors is located in Lehigh County and two are in Northampton County.
As part of its redesignation request, Pennsylvania referenced ozone
monitoring data for the years 2004-2006 for the Allentown Area. This
data has been quality assured and is recorded in the AQS. The PADEP
uses the AQS as the permanent database to maintain its data and quality
assures the data transfers and content for accuracy. The fourth-high 8-
hour daily maximum concentrations for the period from 2004-2006, along
with the three-year average, are summarized in Table 2.
Table 2.--Allentown-Bethlehem-Easton Area Fourth Highest 8-Hour Average Values
[2004-2006]
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Annual 4th highest Average 4th highest
reading (ppm) reading (ppm)
Monitor/county/AIRS ID ---------------------------------------------------
2004 2005 2006 2004-2006
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Allentown Monitor, Lehigh County, AQS ID 42-077-0004........ 0.083 0.086 0.080 0.083
Freemansburg Monitor, Northampton County AQS ID 42-095-0025. 0.088 0.086 0.078 0.084
Easton 2 Monitor, Northampton County AQS ID 42-095-8000..... 0.083 0.080 0.078 0.080
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The Area design value for the 3-year period 2004-2006 is 0.084 ppm (based on the Freemansburg Monitor/AQS ID 42-
095-0025)
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The air quality data for 2004-2006 show that the Allentown Area has
attained the standard with a design value of 0.084 ppm. The data
collected at the three Allentown Area monitors satisfies the Act
requirement that the 3-year average of the annual fourth-highest daily
maximum 8-hour average ozone concentration is below the maximum design
value of 0.085 ppm. The PADEP's request for redesignation for the
Allentown Area indicates that the data is complete and was quality
assured in accordance with 40 CFR part 58. In addition, as discussed
below with respect to the maintenance plan, PADEP has committed to
continue monitoring in accordance with 40 CFR part 58. In summary, EPA
has determined that the data submitted by Pennsylvania and data taken
from AQS indicate that the Allentown Area has attained the 8-hour ozone
NAAQS.
B. The Allentown-Bethlehem-Easton Area Has Met All Applicable
Requirements Under Section 110 and Part D of the Clean Air Act and Has
a Fully Approved SIP Under Section 110(k) of the Act
EPA has determined that the Allentown Area has met all SIP
requirements applicable for purposes of this redesignation under
section 110 of the Act (General SIP Requirements) and that it meets all
applicable SIP requirements under Part D of Title I of the Act, in
accordance with section 107(d)(3)(E)(v). In addition, EPA has
determined that the SIP is fully approvable with respect to all
requirements applicable for purposes of redesignation in accordance
with section 107(d)(3)(E)(ii). In making these proposed determinations,
EPA ascertained which requirements are applicable to the Allentown Area
and determined that the applicable portions of the SIP meeting these
requirements are fully approved under section 110(k) of the Act. We
note that SIPs must be
[[Page 1166]]
fully approved only with respect to applicable requirements.
The September 4, 1992 Calcagni memorandum (``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) with respect to the timing of applicable requirements.
Under this interpretation, to qualify for redesignation, States
requesting redesignation to attainment must meet only the relevant
Clean Air Act requirements that came due prior to the submittal of a
complete redesignation request. See also, Michael Shapiro memorandum,
September 17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995)
(redesignation of Detroit-Ann Arbor). Applicable requirements of the
Act that come due subsequent to the area's submittal of a complete
redesignation request remain applicable until a redesignation is
approved, but are not required as a prerequisite to redesignation.
Section 175A(c) of the Act. Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004). See also, 68 FR at 25424, 25427 (May 12, 2003) (redesignation of
St. Louis).
This section sets forth EPA's views on the potential effect of the
Court's rulings on this proposed redesignation action. For the reasons
set forth below, EPA does not believe that the Court's rulings alters
any requirements relevant to this redesignation action so as to
preclude redesignation, and do not prevent EPA from proposing or
ultimately finalizing this redesignation. EPA believes that the Court's
December 22, 2006 and June 8, 2007 decisions impose no impediment to
moving forward with redesignation of this 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.
1. Section 110 General SIP Requirements
Section 110(a)(2) of Title I of the Act delineates the general
requirements for a SIP, which includes enforceable emissions
limitations and other control measures, means, or techniques,
provisions for the establishment and operation of appropriate devices
necessary to collect data on ambient air quality, and programs to
enforce the limitations. The general SIP elements and requirements set
forth in section 110(a)(2) include, but are not limited to the following:
• Submittal of a SIP that has been adopted by the State
after reasonable public notice and hearing;
• Provisions for establishment and operation of appropriate
procedures needed to monitor ambient air quality;
• Implementation of a source permit program; provisions for
the implementation of part C requirements (Prevention of Significant
Deterioration (PSD));
• Provisions for the implementation of Part D requirements
for New Source Review (NSR) permit programs;
• Provisions for air pollution modeling; and
• Provisions for public and local agency participation in
planning and emission control rule development.
Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another State. To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants in accordance with the NOX SIP Call, October
27, 1998 (63 FR 57356), amendments to the NOX SIP Call, May
14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean
Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the
section 110(a)(2)(D) requirements for a State are not linked with a
particular nonattainment area's designation and classification in that
State. EPA believes that the requirements linked with a particular
nonattainment area's designation and classifications are the relevant
measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a state regardless of the designation of any one particular
area in the State. Thus, we do not believe that these requirements are
applicable requirements for purposes of redesignation.
In addition, EPA believes that the other section 110 elements not
connected with nonattainment plan submissions and not linked with an
area's attainment status are not applicable requirements for purposes
of redesignation. The Allentown Area will still be subject to these
requirements after it is redesignated. The section 110 and Part D
requirements which are linked with a particular area's designation and
classification are the relevant measures to evaluate in reviewing a
redesignation request. This policy is consistent with EPA's existing
policy on applicability of conformity (i.e., for redesignations) and
oxygenated fuels requirement. See Reading, Pennsylvania, proposed and
final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7,
1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May
7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December
7, 1995). See also, the discussion on this issue in the Cincinnati
redesignation (65 FR at 37890, June 19, 2000), and in the Pittsburgh
redesignation (66 FR at 53099, October 19, 2001). Similarly, with
respect to the NOX SIP Call rules, EPA noted in its Phase 1
Final Rule to Implement the 8-hour Ozone NAAQS, that the NOX
SIP Call rules are not ``an `applicable requirement' for purposes of
section 110(1) because the NOX rules apply regardless of an
area's attainment or nonattainment status for the 8-hour (or the 1-
hour) NAAQS. 69 FR 23951, 23983 (April 30, 2004).
EPA believes that section 110 elements not linked to the area's
nonattainment status are not applicable for purposes of redesignation.
As we explain later in this notice, no Part D requirements applicable
for purposes of redesignation under the 8-hour standard became due for
the Allentown Area prior to submission of the redesignation request.
2. Part D Nonattainment Requirements Under the 8-Hour Standard
Pursuant to an April 30, 2004, final rule (69 FR 23951), the
Allentown Area was designated a basic nonattainment area under subpart
1 for the 8-hour ozone standard. Sections 172-176 of the Act, found in
subpart 1 of Part D, set forth the basic nonattainment requirements
applicable to all nonattainment areas. Section 182 of the Act, found in
subpart 2 of Part D, establishes additional specific requirements
depending on the area's nonattainment classification.
With respect to the 8-hour standard, the court's ruling rejected
EPA's reasons for classifying areas under subpart 1 for the 8-hour
standard, and remanded that matter to the Agency. Consequently, it is
possible that this area could, during a remand to EPA, be reclassified
under subpart 2. Although any future decision by EPA to classify this
area under subpart 2 might trigger additional future requirements for
the area, EPA believes that this does not mean that redesignation of
the area cannot now go forward. This belief is based upon (1) EPA's
longstanding policy of evaluating redesignation requests in accordance
with the requirements due at the time the request is submitted; and,
(2) consideration of the inequity of applying retroactively any
requirements that might in the future be applied.
[[Page 1167]]
First, at the time the redesignation request was submitted, the
Allentown Area was classified under subpart 1 and was obligated to meet
requirements under subpart 1. Under EPA's longstanding interpretation
of section 107(d)(3)(E) of the Act, to qualify for redesignation,
states requesting redesignation to attainment must meet only the
relevant SIP requirements that came due prior to the submittal of a
complete redesignation request. See September 4, 1992 Calcagni
memorandum (``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division). See also, Michael Shapiro Memorandum, September
17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995) (Redesignation
of Detroit-Ann Arbor). Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004), which upheld this interpretation. See 68 FR 25418, 25424, 25427
(May 12, 2003) (Redesignation of St. Louis).
Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted. The DC Circuit has recognized the inequity in such
retroactive rulemaking, Sierra Club v. Whitman, 285 F. 3d 63 (DC Cir.
2002), in which the DC Circuit upheld a District Court's ruling
refusing to make retroactive an EPA determination of nonattainment that
was past the statutory due date. Such a determination would have
resulted in the imposition of additional requirements on the area. The
Court stated: ``Although EPA failed to make the nonattainment
determination within the statutory time frame, Sierra Club's proposed
solution only makes the situation worse. Retroactive relief would
likely impose large costs on the States, which would face fines and
suits for not implementing air pollution prevention plans in 1997, even
though they were not on notice at the time.'' Id. at 68. Similarly here
it would be unfair to penalize the area by applying to it for purposes
of redesignation additional SIP requirements under subpart 2 that were
not in effect at the time it submitted its redesignation request.
With respect to 8-hour subpart 2 requirements, if the Allentown
Area initially had been classified under subpart 2, the first two Part
D subpart 2 requirements applicable to the Area under section 182(a) of
the Act would be: a base-year inventory requirement pursuant to section
182(a)(1) of the Act, and, the emissions statement requirement pursuant
to section 182(a)(3)(B).
As stated previously, these requirements are not yet due for
purposes of redesignation of the Allentown Area, but nevertheless,
Pennsylvania already has in its approved SIP, an emissions statement
rule for the 1-hour standard that covers all portions of the designated
8-hour nonattainment area and, that satisfies the emissions statement
requirement for the 8-hour standard. See, 25 Pa. Code 135.21(a)(1),
codified at 40 CFR 52.2020; 60 FR 2881, January 12, 1995. With respect
to the base-year inventory requirement, in this notice of proposed
rulemaking, EPA is proposing to approve the 2002 base-year inventory
for the Allentown Area, which was submitted on June 26, 2007 (including
the August 9, 2007 technical correction SIP revision containing
previously omitted inventory support documents), concurrently with its
maintenance plan SIP revision. EPA is proposing to approve the 2002
base-year inventory as fulfilling the requirements of both section
182(a)(1) and section 172(c)(3) of the Act. A detailed evaluation of
Pennsylvania's 2002 base-year inventory for the Allentown Area can be
found in a Technical Support Document (TSD) prepared by EPA for this
rulemaking. EPA has determined that the emission inventory and emissions
statement requirements for the Allentown Area have been satisfied.
In addition to the fact that Part D requirements applicable for
purposes of redesignation did not become due prior to submission of the
redesignation request, EPA believes that the general conformity and NSR
requirements do not require approval prior to redesignation.
With respect to section 176, Conformity Requirements, section
176(c) of the Act requires states to establish criteria and procedures
to ensure that federally supported or funded projects conform to the
air quality planning goals in the applicable SIP. The requirement to
determine conformity applies to transportation plans, programs, and
projects developed, funded or approved under Title 23 U.S.C. and the
Federal Transit Act (``transportation conformity'') as well as to all
other Federally supported or funded projects (``general conformity'').
State conformity revisions must be consistent with Federal conformity
regulations relating to consultation, enforcement and enforceability
that the Act required the EPA to promulgate. EPA believes it is
reasonable to interpret the conformity SIP requirements as not applying
for purposes of evaluating the redesignation request under section
107(d) since State conformity rules are still required after
redesignation and Federal conformity rules apply where State rules have
not been approved. See, Wall v. EPA, 265 F. 3d 426, 438-440 (6th Cir.
2001), upholding this interpretation. See also, 60 FR 62748 (December
7, 1995).
In the case of the Allentown Area, EPA has also determined that
before being redesignated, the Area need not comply with the
requirement that a NSR program be approved prior to redesignation. EPA
has determined that areas being redesignated need not comply with the
requirement that a NSR program be approved prior to redesignation,
provided that the area demonstrates maintenance of the standard without
Part D NSR in effect. The rationale for this position is described in a
memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation, dated October 14, 1994, entitled, ``Part D NSR Requirements
or Areas Requesting Redesignation to Attainment.'' Normally, State's
Prevention of Significant Deterioration (PSD) program will become
effective in the area immediately upon redesignation to attainment. See
the more detailed explanations in the following redesignation
rulemakings: Detroit, MI (60 FR 12467-12468 (March 7, 1995); Cleveland-
Akron-Lorrain, OH (61 FR 20458, 20469-20470, May 7, 1996); Louisville,
KY (66 FR 53665, 53669, October 23, 2001); Grand Rapids, MI (61 FR
31831, 31836-31837, June 21, 1996). In the case of the Allentown Area
the Chapter 127 Part D NSR regulations in the Pennsylvania SIP
(codified at 40 CFR 52.2020(c)(1)) explicitly apply the requirements
for NSR in section 184 of the Act to ozone attainment areas within the
Ozone Transport Region (OTR). The OTR NSR requirements are more
stringent than that required for a marginal or basic ozone
nonattainment area. On October 19, 2001 (66 FR 53094), EPA fully
approved Pennsylvania's NSR SIP revision consisting of Pennsylvania's
Chapter 127 Part D NSR regulations that cover the Allentown Area.
EPA has also interpreted the section 184 OTR requirements,
including the NSR program, as not being applicable for purposes of
redesignation. The rationale for this is based on two considerations.
First, the requirement to submit SIP revisions for the section 184
requirements continues to apply to areas in the OTR after redesignation
to attainment. Therefore, the State remains obligated to have NSR, as
well as reasonably available control technology (RACT), and Vehicle
Inspection and Maintenance programs even after redesignation. Second,
the section 184
[[Page 1168]]
control measures are region-wide requirements and apply to the
Allentown Area to address ozone transport--not solely by virtue of the
Area's designation and classification. See 61 FR 53174, 53175-53176
(October 10, 1996) and 62 FR 24826, 24830-24832 (May 7, 1997).
3. Part D Nonattainment Area Requirements Under the 1-Hour Standard
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 the Allentown Area must
meet the federal anti-backsliding requirements. See 40 CFR 51.900, et
seq.; 70 FR 30592, 30604 (May 26, 2005), which apply by virtue of the
Area's classification for the 1-hour ozone NAAQS. As set forth in more
detail below, the Area must also address four additional anti-
backsliding provisions identified by the Court in its decisions.
The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-
hour ozone NAAQS requirements that continue to apply after revocation
of the 1-hour ozone NAAQS to former 1-hour ozone nonattainment areas.
Section 51.905(a)(1)(i) provides that:
``The area remains subject to the obligation to adopt and implement
the applicable requirements as defined in Sec. 51.900(f), except as
provided in paragraph (a)(1)(iii) of paragraph (b) of this section.''
Section 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005),
states that:
Applicable requirements means for an area the following
requirements to the extent such requirements applied to the area for
the area's classification under section 181(a)(1) of the Clean Air Act
for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS.
(1) Reasonably available control technology (RACT).
(2) Inspection and maintenance programs (I/M).
(3) Major source applicability cut-offs for purposes of RACT.
(4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section 183(c)(4) of the Clean
Air Act.
(7) Clean fuels for boilers under section 182(e)(3) of the Clean
Air Act.
(8) Transportation Control Measures (TCMs) during heavy traffic
hours as required by section 182(e)(4) of the Clean Air Act.
(9) Enhanced (ambient) monitoring under section 182(c)(1) of the
Clean Air Act.
(10) Transportation control measures (TCMs) under section 182(c)(5)
of the Clean Air Act.
(11) Vehicle miles traveled (VMT) provisions of section 182(d)(1)
of the Clean Air Act.
(12) NOX requirements under section 182(f) of the Clean
Air Act.
(13) Attainment demonstration or alternative as provided under
Sec. 51.905(a)(1)(ii).''
Pursuant to 40 CFR 51.905(c), the Allentown Area is subject to the
obligations set forth in Sec. Sec. 51.905(a) and 51.900(f).
Prior to its designation as an 8-hour ozone nonattainment area, the
Allentown Area was designated a marginal nonattainment area for the 1-
hour standard. With respect to the 1-hour standard, the applicable
requirements under the anti-backsliding provisions at 40 CFR
51.905(a)(1) for the Allentown Area are limited to RACT and I/M
programs specified in section 182(a) of the Act and are discussed in
the following paragraphs:
Section 182(a)(2)(A) required SIP revisions to correct or amend
RACT for sources in marginal areas, such as the Allentown Area, that
were subject to control technique guidelines (CTGs) issued before
November 15, 1990 pursuant to Clean Air Act section 108. On December
22, 1994, EPA fully approved into the Pennsylvania SIP all corrections
required under section 182(a)(2)(A) of the Act (59 FR 65971, December
22, 1994). EPA believes that this requirement applies only to marginal
and higher classified areas under the 1-hour NAAQS pursuant to the 1990
amendments to the Act; therefore, this is a one-time requirement. After
an area has fulfilled the section 182(a)(2)(A) requirement for the 1-
hour NAAQS, there is no requirement under the 8-hour NAAQS.
Section 182(a)(2)(B) relates to the savings clause for vehicle
inspection and maintenance (I/M). It requires marginal areas that were
required to adopt an I/M program prior to 1990 to adopt a program
meeting EPA I/M requirements, or to maintain operation of an existing
I/M program.Section 182(a)(2)(B) relates to the savings clause for
vehicle inspection and maintenance programs. It requires marginal areas
to adopt (or if already in effect, to continue operation of) a vehicle
I/M program if a program was required to have been in operation prior
to November 15, 1990. This provision is applicable to the Allentown
area because Northampton and Lehigh Counties had a required I/M program
in place prior to November 15, 1990. Therefore, under this provision,
the Allentown area was required to continue to operate an I/M program,
in accordance with I/M requirements, after 1990. A separate I/M
provision under section 184 of the Act, which requires adoption of an
enhanced I/M program to address ozone transport in certain metropolitan
areas of the Ozone Transport Region also applies to the Allentown Area
and is described below.
In addition the Court held that EPA should have retained four
additional measures in its anti-backsliding provisions: (1)
Nonattainment area NSR ; (2) Section 185 penalty fees; (3) contingency
measures under section 172(c)(9) or 182(c)(9) of the Act; and (4) 1-
hour motor vehicle emission budgets that were yet not replaced by 8-
hour emissions budgets. These requirements are addressed below:
With respect to NSR, EPA has determined that areas being
redesignated need not have an approved nonattainment New Source Review
program, for the same reasons discussed previously with respect to the
applicable Part D requirement for the 8-hour standard.
The section 185 penalty fee requirement was not applicable in the
Allentown 1-hour marginal nonattainment Area.
With respect to the requirement for submission of contingency
measures for the 1-hour standard, section 182(a) does not require
contingency measures for marginal areas.
The conformity portion of the Court's ruling does not impact the
redesignation request for the Allentown Area except to the extent that
the Court in its June 8 decision clarified that for those areas with 1-
hour MVEBs, anti-backsliding requires 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 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.
Thus EPA has concluded that the area has met all requirements
applicable for redesignation under the 1-hour standard.
4. Transport Region Requirements
All areas in the Ozone Transport Region (OTR), both attainment and
nonattainment, are subject to additional control requirements under
section 184 for the purpose of reducing interstate transport of
emissions that may contribute to downwind ozone nonattainment. The
section 184
[[Page 1169]]
requirements include RACT, NSR, enhanced vehicle inspection and
maintenance (I/M), and Stage II vapor recovery or a comparable measure.
In the case of the Allentown Area, which is located in the OTR,
nonattainment NSR will continue to be applicable after redesignation.
On October 19, 2001, EPA approved the 1-hour NSR SIP revision for the
Area. See 66 FR 53094 (October 19, 2001).
EPA has also interpreted the section 184 OTR requirements,
including NSR, as not being applicable for purposes of redesignation.
Reading, PA Redesignation, 61 FR 53174, (October 10, 1996), 62 FR 24826
(May 7, 1997). The rationale for this is based on two considerations.
First, the requirement to submit SIP revisions for the section 184
requirements continues to apply to areas in the OTR after redesignation
to attainment. Therefore, the Commonwealth remains obligated to have
NSR, as well as RACT and I/M, even after redesignation. Second, the
section 184 control measures are region-wide, transport-based
requirements that apply to an area not solely by virtue of the area's
nonattainment designation and classification. Therefore, these measures
are considered not relevant to an action changing an area's
designation. See 61 FR 53174, 53175-53176 (October 10, 1996) and 62 FR
24826, 24830-24832 (May 7, 1997).
5. The Allentown-Bethlehem-Easton Area Has a Fully Approved SIP for
Purposes of Redesignation
EPA has fully approved the Pennsylvania SIP for the purposes of
this redesignation. EPA may rely on prior SIP approvals in approving a
redesignation request. Calcagni Memo, p.3; Southwestern Pennsylvania
Growth Alliance v. Browner, 144 F. 3d 984, 989-90 (6th Cir. 1998), Wall
v. EPA, 265 F. 3d 426 (6th Cir. 2001), plus any additional measures it
may approve in conjunction with a redesignation action. See, 68 FR at
25425 (May 12, 2003) and citations therein.
C. The Air Quality Improvement in the Allentown-Bethlehem-Easton Area
Is Due to Permanent and Enforceable Reductions in Emissions Resulting
From Implementation of the SIP and Applicable Federal Air Pollution
Control Regulations and Other Permanent and Enforceable Reductions
EPA believes that the Commonwealth has demonstrated that the
observed air quality improvement in the Allentown Area is due to
permanent and enforceable reductions in emissions resulting from
implementation of the SIP, Federal measures, and other State-adopted
measures. Emissions reductions attributable to these rules are shown in
Table 3.
Table 3.--Total VOC and NOX Emissions for 2002 and 2004 in Tons per Summer Day (tpsd)
----------------------------------------------------------------------------------------------------------------
Stationary Stationary Nonroad Highway
Year point area mobile mobile Total
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
2002........................................... 4.9 28.6 13.6 35.6 82.7
2004........................................... 6.4 28.1 13.0 30.5 78.0
----------------------------------------------------------------
Difference (2002-04)....................... +1.5 -0.5 -0.6 -5.1 -4.7
----------------------------------------------------------------------------------------------------------------
Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
2002........................................... 60.0 2.8 13.4 55.1 131.3
2004........................................... 58.8 2.9 12.9 48.3 122.9
Difference (2002-04)....................... -1.2 +0.1 -0.5 -6.8 -8.4
----------------------------------------------------------------------------------------------------------------
Between 2002 and 2004, VOC emissions decreased by 4.7 tpsd from
82.7 tpsd to 78.0 tpsd. During the same period, NOX
emissions decreased by 8.4 tpsd from 131.3 tpsd to 122.9 tpsd. EPA
believes that permanent and enforceable emissions reductions are the
cause of the long-term improvement in ozone levels and are the cause of
the Area achieving attainment of the 8-hour ozone standard. These
reductions, as well as anticipated future reductions, are due to the
following permanent and enforceable measures.
1. Stationary Point Sources
Federal NOX SIP Call (66 FR 43795, August 21, 2001).
2. Stationary Area Sources
Solvent Cleaning (68 FR 2206, January 16, 2003).
Portable Fuel Containers (69 FR 70893, December 8, 2004).
3. Highway Vehicle Sources
Federal Motor Vehicle Control Programs (FMVCP).
--Tier 1 Rule (56 FR 25724, June 5, 1991).
--Tier 2 Rule (65 FR 6698, February 10, 2000).
--Heavy-duty Engine and Vehicle Standards (62 FR 54694, October 21,
1997, and 65 FR 59896, October 6, 2000).
National Low Emission Vehicle (NLEV) Program (64 FR 72564, December
28, 1999).
PA Vehicle Emission Inspection/Maintenance Program (70 FR 58313,
October 6, 2005).
Changes to Vehicle Safety Inspection Program in non-I/M Counties
(70 FR 58313, October 6, 2005).
4. Non-Road Sources
Non-road Diesel Rule (69 FR 38958, June 29, 2004).
D. The Allentown Area Has a Fully Approvable Maintenance Plan Pursuant
to Section 175A of the Clean Air Act
In conjunction with its request to redesignate the Allentown ozone
nonattainment Area to attainment status, Pennsylvania submitted a SIP
revision to provide for maintenance of the 8-hour ozone NAAQS in the
Area for at least 11 years after redesignation. The Commonwealth is
requesting that EPA approve this SIP revision as meeting the
requirement of Clean Air Act section 175A. Once approved, the
maintenance plan for the 8-hour ozone NAAQS will ensure that the SIP
for the Allentown Area meets the requirements of the Act regarding
maintenance of the applicable 8-hour ozone standard.
What Is Required in a Maintenance Plan?
Section 175 of the Act sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under
[[Page 1170]]
section 175A, the plan must demonstrate continued attainment of the
applicable NAAQS for at least 10 years after approval of a
redesignation of an area to attainment. Eight years after the
redesignation, the Commonwealth must submit a revised maintenance plan
demonstrating that attainment will continue to be maintained for the 10
years following the initial 10-year period. To address the possibility
of future NAAQS violations, the maintenance plan must contain such
contingency measures, with a schedule for implementation, as EPA deems
necessary to assure prompt correction of any future 8-hour ozone
violations. Section 175A of the Clean Air Act sets forth the elements
of a maintenance plan for areas seeking redesignation from
nonattainment to attainment. The Calcagni memorandum dated September 4,
1992, provides additional guidance on the content of a maintenance
plan. An ozone maintenance plan should address the following provisions:
(a) An attainment emissions inventory;
(b) A maintenance demonstration;
(c) A monitoring network;
(d) Verification of continued attainment; and
(e) A contingency plan.
Analysis of the Allentown-Bethlehem-Easton Area Maintenance Plan
(a) Attainment inventory--An attainment inventory includes the
emissions during the time period associated with the monitoring data
showing attainment. PADEP determined that the appropriate attainment
inventory year is 2004. That year establishes a reasonable year within
the three-year block of 2004-2006 as a baseline and accounts for
reductions attributable to implementation of the Act requirements to
date. The 2004 inventory is consistent with EPA guidance and is based
on actual ``typical summer day'' emissions of VOC and NOX during
2004 and consists of a list of sources and their associated emissions.
The 2002 and 2004 point source data was compiled from actual
sources. Pennsylvania requires owners and operators of larger
facilities to submit annual production figures and emission
calculations each year. Throughput data are multiplied by emission
factors from Factor Information Retrieval (FIRE) Data Systems and EPA's
publication series AP-42, and are based on Source Classification Codes
(SCC). The 2002 area source data was compiled using county-level
activity data, from census numbers, from county numbers, etc. The 2004
area source data was projected from the 2002 inventory using temporal
allocations provided by the Mid-Atlantic Regional Air Management
Association (MARAMA).
The on-road mobile source inventories for 2002 and 2004 were
compiled using MOBILE6.2 and Pennsylvania Department of Transportation
(PENNDOT) estimates for VMT. The PADEP has provided detailed data
summaries to document the calculations of mobile on-road VOC and
NOX emissions for 2002, as well as for the projection years
of 2004, 2009, and 2018 (shown in Tables 5 and 6 below).
The 2002 and 2004 emissions for the majority of non-road emission
source categories were estimated using the EPA NONROAD 2005 model. The
NONROAD model calculates emissions for diesel, gasoline, liquefied
petroleum gasoline, and compressed natural gas-fueled non-road
equipment types and includes growth factors. The NONROAD model does not
estimate emissions from locomotives or aircraft. For 2002 and 2004
locomotive emissions, the PADEP projected emissions from a 1999 survey
using national fuel consumption information and EPA emission and
conversion factors. Emissions from commercial aircraft for 2002 and
2004 are estimated using EPA-approved Emissions & Dispersion Modeling
System (EDMS) 4.20, the latest version available at the time the
inventory was prepared. Emissions from commercial aircraft are
estimated using EPA-approved Emissions & Dispersion Modeling System
(EDMS). Small aircraft emissions were calculated using small airport
statistics from the Federal Aviation Administration's APO Terminal Area
Forecast Report and the Web site http://www.airnav.com. 
More detailed information on the compilation of the 2002, 2004,
2009, and 2018 inventories can found in the Technical Appendices, which
are part of the June 26, 2007 state submittal.
(b) Maintenance Demonstration--On June 26, 2007, the PADEP
submitted a maintenance plan as required by section 175A of the Act.
The Allentown Area maintenance plan shows maintenance of the 8-hour
ozone NAAQS by demonstrating that current and future emissions of VOC
and NOX remain at or below the attainment year 2004
emissions levels throughout the Area through the year 2018. A
maintenance demonstration need not be based on modeling. See Wall v.
EPA, supra; Sierra Club v. EPA, supra. See also, 66 FR at 53099-53100;
68 FR at 25430-25432.
Tables 4 and 5 specify the VOC and NOX emissions for the
Allentown Area for 2004, 2009, and 2018. The PADEP chose 2009 as an
interim year in the maintenance demonstration period to demonstrate
that the VOC and NOX emissions are not projected to increase
above the 2004 attainment level during the time of the maintenance period.
Table 4.--Total VOC Emissions for 2004-2018 (tpsd)
------------------------------------------------------------------------
Source category 2004 2009 2018
------------------------------------------------------------------------
Stationary Point................. 6.4 5.5 6.6
Stationary Area.................. 28.1 26.7 28.9
Highway Mobile................... 30.5 24.1 14.7
Nonroad Mobile................... 13.0 10.3 8.9
--------------------------------------
Total........................ 78.0 66.6 59.1
------------------------------------------------------------------------
Table 5.--Total NOX Emissions for 2004-2018 (tpsd)
------------------------------------------------------------------------
Source category 2004 2009 2018
------------------------------------------------------------------------
Point............................ 58.8 58.3 66.6
Area............................. 2.9 3.1 3.2
Highway Mobile................... 48.3 34.8 15.4
Nonroad Mobile................... 12.9 11.0 6.6
--------------------------------------
[[Page 1171]]
Total........................ 122.9 107.2 91.8
------------------------------------------------------------------------
Additionally, the following programs are either effective or due to
become effective and will further contribute to the maintenance
demonstration of the 8-hour ozone NAAQS:
• The Clean Air Interstate Rule (71 FR 25328, April 28, 2006).
• The Federal NOX SIP Call (66 FR 43795, August 21, 2001).
• Portable Fuel Containers Rule (69 FR 70893, December 8, 2004).
• Consumer Products Rule (69 FR 70895, December 8, 2004).
• Architectural and Industrial Maintenance (AIM) Coatings
(69 FR 68080, November 23, 2004).
• Federal Light-duty Highway Vehicle Control Program
(FMVCP)--Tier 1/Tier 2 Emissions Standards (Model Year 1994/2004); Tier
1--(56 FR 25724, June 5, 1991), Tier 2--(65 FR 6698, February 10, 2000).
• Federal Heavy-duty Diesel Highway Engine Standards (Model
Year 2004/2007) / Low-Sulfur Highway Diesel Fuel Standards (2006); (66
FR 5002, January 18, 2001).
• Federal Nonroad Engine Emission Standards (Model Year
2008) and Nonroad Diesel Fuel 2007); (69 FR 38958, June 29, 2004).
• NLEV/PA Clean Vehicle Program (54 FR 72564, December 28, 1999).
• PA Vehicle Emission Inspection and Maintenance Program (70
FR 58313, October 6, 2005).
• Changes to Vehicle Safety Inspection Program for Non-I/M
Counties (70 FR 58313, October 6, 2005).
Based on the comparison of the projected emissions and the
attainment year emissions along with the additional measures, EPA
concludes that PADEP has successfully demonstrated that the 8-hour
ozone standard should be maintained in the Allentown Area.
(c) Monitoring Network--There are three ozone monitors (located in
Lehigh and Northampton Counties) that provided monitoring data to
support the Commonwealth's ozone maintenance plan for the Allentown
area. The Commonwealth has committed to continue to operate its
monitoring network in accordance with 40 CFR part 58, with no reduction
in the number of sites.
(d) Verification of Continued Attainment--In addition to
maintaining the key elements of its regulatory program, the
Commonwealth will track the attainment status of the ozone NAAQS in the
Area by reviewing air quality and emissions data during the maintenance
period. The Commonwealth will perform an annual evaluation of Vehicle
Miles Traveled (VMT) data and emissions reported from stationary
sources, and compare them to the assumptions about these factors used
in the maintenance plan. The Commonwealth will also evaluate the
periodic (every three years) emission inventories prepared under EPA's
Consolidated Emission Reporting Regulation (40 CFR part 51, subpart A)
to see if they exceed the attainment year inventory (2004) by more than
10 percent. The PADEP will also continue to operate the existing ozone
monitoring station in the Area pursuant to 40 CFR part 58 throughout
the maintenance period and submit quality-assured ozone data to EPA
through the AQS system. Section 175A(b) of the Act states that eight
years following redesignation of the Allentown Area, PADEP will be
required to submit a second maintenance plan that will ensure
attainment through 2028. PADEP has made that commitment to meet the
requirement in section 175A(b).
(e) The Maintenance Plan's Contingency Measures--The contingency
plan provisions are designed to promptly correct a violation of the
NAAQS that occurs after redesignation. Section 175A of the Act requires
that a maintenance plan include such contingency measures as EPA deems
necessary to ensure that the Commonwealth will promptly correct a
violation of the NAAQS that occurs after redesignation. The maintenance
plan should identify the events that would ``trigger'' the adoption and
implementation of a contingency measure(s), the contingency measure(s)
that would be adopted and implemented, and the schedule indicating the
time frame by which the state would adopt and implement the measure(s).
The ability of the Allentown Area to stay in compliance with the 8-
hour ozone standard after redesignation depends upon VOC and
NOX emissions in the Area remaining at or below 2004 levels.
The Commonwealth's maintenance plan projects VOC and NOX
emissions to decrease and stay below 2004 levels through the year 2018.
The Commonwealth's maintenance plan outlines the procedures for the
adoption and implementation of contingency measures to further reduce
emissions should a violation occur.
Contingency measures will be considered if for two consecutive
years the fourth highest 8-hour ozone concentration at any Allentown
Area monitor is above 84 ppb. If this trigger point occurs, the
Commonwealth will evaluate whether additional local emission control
measures should be implemented in order to prevent a violation of the
air quality standard. PADEP will also analyze the conditions leading to
the excessive ozone levels and evaluate which measures might be most
effective in correcting the excessive ozone levels. PADEP will also
analyze the potential emissions effect of Federal, state and local
measures that have been adopted but not yet implemented at the time the
excessive ozone levels occurred. PADEP will then begin the process of
implementing any selected measures.
Contingency measures will also be considered in the event that a
violation of the 8-hour ozone standard occurs at any Allentown Area
monitor. In the event of a violation of the 8-hour ozone standard,
PADEP will adopt additional emissions reduction measures as
expeditiously as practicable in accordance with the implementation
schedule listed later in this notice and in the Pennsylvania Air
Pollution Control Act in order to return the Area to attainment with
the standard. Contingency measures to be considered for the Allentown
Area will include, but not be limited to the following:
Regulatory measures:
--Additional controls on consumer products.
--Additional controls on portable fuel containers.
Non-Regulatory measures:
--Voluntary diesel engine ``chip reflash'' (installation software to
correct the defeat device option on certain heavy-duty diesel engines).
--Diesel retrofits, including replacement, repowering or alternative
fuel use, for public or private local on-road or off-road fleets.
--Idling reduction technology for Class 2 yard locomotives.
[[Page 1172]]
--Idling reduction technologies or strategies for truck stops,
warehouses and other freight handling facilities.
--Accelerated turnover of lawn and garden equipment, especially
commercial equipment, including promotion of electric equipment.
--Additional promotion of alternative fuel (e.g., biodiesel) for home
heating and agricultural use.
The plan sets forth a process to have regulatory contingency
measures in effect within 19 months of the trigger. The plan also lays
out a process to implement non-regulatory contingency measures within
12-24 months of the trigger.
VII. Are the Motor Vehicle Emissions Budgets Established and Identified
in the Maintenance Plan for the Allentown-Bethlehem-Easton Area Plan
Adequate and Approvable?
A. What Are the Motor Vehicle Emissions Budgets?
Under the Act, States are required to submit, at various times,
control strategy SIPs and maintenance plans in ozone areas. These
control strategy SIPs (i.e., reasonable further progress SIPs and
attainment demonstration SIPs) and maintenance plans identify and
establish MVEBs for certain criteria pollutants and/or their precursors
to address pollution from on-road mobile sources. In the maintenance
plan, the MVEBs are termed ``on-road mobile source emission budgets.''
Pursuant to 40 CFR part 93 and Sec. 51.112, MVEBs must be established
in an ozone maintenance plan. An MVEB is the portion of the total
allowable emissions that is allocated to highway and transit vehicle
use and emissions. An MVEB serves as a ceiling on emissions from an
area's planned transportation system. The MVEB concept is further
explained in the preamble to the November 24, 1993, transportation
conformity rule (58 FR 62188). The preamble also describes how to
establish and revise the MVEBs in control strategy SIPs and maintenance
plans.
Under section 176(c) of the Act, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of a State's air quality plan that addresses
pollution from cars and trucks. ``Conformity'' to the SIP means that
transportation activities will not cause new air quality violations,
worsen existing violations, or delay timely attainment of or reasonable
progress towards the NAAQS. If a transportation plan does not
``conform,'' most new projects that would expand the capacity of
roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA
policy, criteria, and procedures for demonstrating and ensuring
conformity of such transportation activities to a SIP.
When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA must affirmatively find the MVEB contained
therein ``adequate'' for use in determining transportation conformity.
After EPA affirmatively finds the submitted MVEB is adequate for
transportation conformity purposes, the MVEB can be used by state and
federal agencies in determining whether proposed transportation
projects ``conform'' to the SIP as required by section 176(c) of the
Act. EPA's substantive criteria for determining ``adequacy'' of a MVEB
are set out in 40 CFR 93.118(e)(4).
EPA's process for determining ``adequacy'' consists of three basic
steps: Public notification of a SIP submission, a public comment
period, and EPA's adequacy finding. This process for determining the
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14,
1999 guidance, ``Conformity Guidance on Implementation of March 2,
1999, Conformity Court Decision.'' This guidance was finalized in the
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards and Miscellaneous
Revisions for Existing Areas; Transportation Conformity Rule
Amendments--Response to Court Decision and Additional Rule Change'' on
July 1, 2004 (69 FR 40004). EPA consults this guidance and follows this
rulemaking in making its adequacy determinations.
Transportation agencies in Pennsylvania are responsible for making
timely transportation conformity determinations. There are two
metropolitan planning organizations (MPOs) that serve as transportation
planning agencies for the Allentown area: The Lehigh Valley
Transportation Study (for Lehigh and Northampton Counties), and the
Northeastern Pennsylvania Alliance (NEPA) (for Carbon County).
Pennsylvania has established separate motor vehicle emission budgets
for each of these MPOs. EPA's transportation conformity regulations (40
CFR 93.124(d)) allow a SIP to establish separate motor vehicle emission
budgets for each MPO if a nonattainment area contains more than one MPO.
The MVEB for the Allentown Area are listed in Table 1 for 2009 and
2018. Table 1 presents the projected emissions for the on-road mobile
sources plus any portion of the safety margin allocated to the MVEBs
(safety margin allocation for 2009 and 2018 only). These emission
budgets, when approved by EPA, must be used for transportation
conformity determinations.
B. What Is a Safety Margin?
A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. The attainment level of
emissions is the level of emissions during one of the years in which
the area met the NAAQS. The following example is for the 2018 safety
margin: the Allentown Area attained the 8-hour ozone NAAQS during the
2004 to 2006 time period. The Commonwealth used 2004 as the year to
determine attainment levels of emissions for the Allentown Area. The
sum total emissions for 2004 for point, area, mobile on-road, and
mobile non-road sources for the Area are 78.0 tpsd of VOC and 122.9
tpsd of NOX. The PADEP projected that total emissions for
the year 2018 will be 59.1 tpsd of VOC and 91.8 tpsd of NOX
from all sources in the Area. The Area-wide safety margin for 2018
would be the difference between these amounts, or 18.9 tpsd of VOC and
31.1 tpsd of NOX. The emissions up to the level of the
attainment year, including the safety margins, are projected to
maintain the Area's air quality consistent with the 8-hour ozone NAAQS.
The safety margin is the extra emissions reduction below the attainment
levels that can be allocated for emissions by various sources as long
as the total emission levels are maintained at or below the attainment
levels. Table 6 shows the safety margins for the 2009 and 2018 years.
[[Page 1173]]
Table 6.--Safety Margins for Allentown-Bethlehem-Easton Area
[(2009 & 2018)]
------------------------------------------------------------------------
VOC emissions NOX emissions
Inventory year (tpsd) (tpsd)
------------------------------------------------------------------------
2004 Attainment......................... 78.0 122.9
2009 Interim............................ 66.6 107.2
-------------------------------
2009 Safety Margin.................. 11.4 15.7
2004 Attainment......................... 78.0 122.9
2018 Final.............................. 59.1 91.8
-------------------------------
2018 Safety Margin.................. 18.9 31.1
------------------------------------------------------------------------
Lehigh Valley Transportation Study MPO MVEB (Lehigh and Northampton
Counties)
The PADEP allocated 1.1 tpsd of VOC and 0.8 tpsd of NOX
of the 2009 safety margin to the interim VOC projected on-road mobile
source emissions and the 2009 interim NOX projected on-road
mobile source emissions to arrive at the 2009 MVEB to be allocated to
the sub-regional portion of the Area covered by the Lehigh Valley
Transportation Study MPO (Lehigh and Northampton Counties).
The PADEP also allocated 1.1 tpsd of VOC and 0.8 tpsd of
NOX of the 2018 safety margins to arrive at the 2018 MVEBs
to be allocated to the Lehigh and Northampton County portion of the
Area covered by the Lehigh Valley Transportation Study MPO.
Northeast Area Pennsylvania Alliance (NEPA) MPO
The PADEP allocated 0.2 tpsd of VOC and 0.1 tpsd of NOX
of the 2009 safety margin to the interim VOC projected on-road mobile
source emissions and the 2009 interim NOX projected on-road
mobile source emissions to arrive at the 2009 MVEB to be allocated to
the sub-regional portion of the Area covered by the NEPA MPO (Carbon
County).
The PADEP also allocated 0.3 tpsd of VOC and 0.2 tpsd of
NOX of the 2018 safety margins to arrive at the 2018 MVEBs
to be allocated to the sub-regional portion of the Area covered by the
NEPA MPO (Carbon County).
Once allocated to the budgets these portions of the safety margins
are no longer available, and may no longer be allocated to any other
source category. Tables 7 and 8 show the final 2009 and 2018 MVEBs for
Allentown Area, including the portion of the each total MVEB that has
been allocated to the Lehigh and Northampton Counties sub-regional
portion of the Area (served by the Lehigh Valley Transportation Study
MPO) and for the Carbon County sub-regional portion of the Area (served
by the NEPA MPO).
Table 7.--Motor Vehicle Emission Budgets for the Lehigh and Northampton
Counties Portion of the Allentown-Bethlehem-Easton Area (2009 & 2018) *
[Lehigh Valley Transportation Study MPO]
------------------------------------------------------------------------
VOC emissions NOX emissions
Inventory year (tpsd) (tpsd)
------------------------------------------------------------------------
2009 Projected On Road (Highway) 19.6 28.1
Emissions..............................
2009 Safety Margin Allocated to MVEBs... 1.1 0.8
-------------------------------
2009 MVEBs.......................... 20.6 28.9
2018 Projected On Road (Highway) 11.3 11.6
Emissions..............................
2018 Safety Margin Allocated to MVEBs... 1.1 0.8
-------------------------------
2018 MVEBs.......................... 12.4 12.4
------------------------------------------------------------------------
* PADEP calculates MVEBS using kilograms per summer day, and converts
the values to tons per summer day for informational purposes. This may
appear to make the totals in the table incorrect, but is merely the
result of the rounded tpsd values.
Table 8.--Motor Vehicle Emission Budgets for the Carbon County Portion
of the Allentown-Bethlehem-Easton Area (2009 & 2018) *
[Northeastern Pennsylvania Alliance MPO]
------------------------------------------------------------------------
VOC emissions NOX emissions
Inventory year (tpsd) (tpsd)
------------------------------------------------------------------------
2009 Projected On Road (Highway) 3.2 5.8
Emissions..............................
2009 Safety Margin Allocated to MVEBs... 0.2 0.1
-------------------------------
2009 MVEBs.......................... 3.4 5.9
2018 Projected On Road (Highway) 2.0 2.9
Emissions..............................
2018 Safety Margin Allocated to MVEBs... 0.3 0.2
-------------------------------
[[Page 1174]]
2018 MVEBs.......................... 2.3 3.0
------------------------------------------------------------------------
* PADEP calculates MVEBS using kilograms per summer day, and converts
the values to tons per summer day for informational purposes. This may
appear to make the totals in the table incorrect, but is merely the
result of the rounded tpsd values.
C. Why Are the MVEBs Approvable?
The 2009 and 2018 MVEBs for the Allentown Area are approvable
because the MVEBs for VOCs and NOX continue to maintain the
total emissions at or below the attainment year inventory levels as
required by the transportation conformity regulations.
D. What Is the Adequacy and Approval Process for MVEBs in the
Maintenance Plan?
The MVEBs for the Allentown Area maintenance plan are being posted
to EPA's conformity Web site concurrently with this proposal. The
public comment period will end at the same time as the public comment
period for this proposed rule. In this case, EPA is concurrently
processing action on the maintenance plan and the adequacy process for
the MVEBs contained therein. In this proposed rule, EPA is proposing to
find the MVEBs adequate and EPA is proposing to approve the MVEBs as
part of the maintenance plan. The MVEBs cannot be used for
transportation conformity until the maintenance plan and associated
MVEBs are approved in a final Federal Register notice, or EPA otherwise
finds the budgets adequate in a separate action following the comment
period.
If EPA receives adverse written comments with respect to the
proposed approval of the Area's MVEBs, or any other aspect of our
proposed approval of this updated maintenance plan, we will respond to
the comments on the MVEBs in our final action or proceed with the
adequacy process as a separate action. Our action on the Allentown Area
MVEBs will also be announced on EPA's conformity Web site:
http://www.epa.gov/otaq/stateresources/transconf/index.htm (from there,
click on ``Adequacy Review of SIP Submissions'').
VIII. Proposed Actions
EPA is proposing to determine that the Allentown-Bethlehem-Easton
Area has attained the 8-hour ozone NAAQS. EPA is also proposing to
approve the redesignation of the Area from nonattainment to attainment
for the 8-hour ozone NAAQS. EPA has evaluated Pennsylvania's
redesignation request and determined that it meets the redesignation
criteria set forth in section 107(d)(3)(E) of the Act. EPA believes
that the redesignation request and monitoring data demonstrate that the
Area has attained the 8-hour ozone standard. The final approval of this
redesignation request would change the designation of the Allentown
Area from nonattainment to attainment for the 8-hour ozone standard.
EPA is also proposing to approve the associated maintenance plan for
the Area, submitted on June 26, 2007, as a revision to the Pennsylvania
SIP. EPA is proposing to approve the maintenance plan for the Allentown
Area because it meets the requirements of section 175A as described
previously in this notice. EPA is also proposing to approve the 2002
base-year inventory for the Allentown Area, submitted by PADEP on June
26, 2007, along with an August 9, 2007 technical correction to the
emissions inventory to submit previously omitted inventory support
documents. Finally, EPA is proposing to approve the MVEBs submitted by
Pennsylvania for the Area in conjunction with its redesignation
request. EPA is soliciting public comments on the issues discussed in this
document. These comments will be considered before taking final action.
IX. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the 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 proposes to approve 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 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. Redesignation of an area to attainment under section
107(d)(3)(E) 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 new regulatory requirements
on sources. Accordingly, the Administrator certifies that this proposed
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 proposes to approve 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). Because this action affects the status of a
geographical area or allows the state to avoid adopting or implementing
other requirements and because this action does not impose any new
requirements on sources, this proposed rule also does 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), nor will it have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it
merely proposes to approve a state rule implementing a Federal
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the Act. This proposed rule
also is not subject to Executive Order 13045 (62 FR 19885, April 23,
1997), because it approves a
[[Page 1175]]
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 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 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. As required by section 3 of Executive Order 12988
(61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has
taken the necessary steps to eliminate drafting errors and ambiguity,
minimize potential litigation, and provide a clear legal standard for
affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859,
March 15, 1988) by examining the takings implications of the rule
in accordance with the ``Attorney General's Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the executive order.
This rule, proposing to approve the redesignation of the Allentown
Area to attainment for the 8-hour ozone NAAQS, the associated
maintenance plan, the 2002 base-year inventory, and the MVEBs
identified in the maintenance plan, does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501, et seq.).
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen oxides,
Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Authority: 42 U.S.C. 7401, et seq.
Dated: December 18, 2007.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E8-27 Filed 1-4-08; 8:45 am]
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