[Federal Register Volume 72, Number 129 (Friday, July 6, 2007)]
[Rules and Regulations]
[Pages 36889-36892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12850]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2006-0840; FRL-8333-6]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Redesignation of the Lancaster 8-Hour 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 Lancaster nonattainment area
(``Lancaster 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 Lancaster 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 Lancaster 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 Lancaster 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 6, 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-2006-0840. All documents in the docket are listed in
the 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 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: Ellen Wentworth (215) 814-2034, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On May 15, 2007 (72 FR 27265), 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 Lancaster 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 September 20, 2006, and
supplemented on November 8, 2006.
[[Page 36890]]
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 (D.C.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 D.C.
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 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; (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; and (4) certain transportation conformity
requirements for certain types of Federal actions. The June 8 decision
clarified that the Court's reference to conformity requirements 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.
For the reasons set forth in the proposal, 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 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.
With respect to the 8-hour standard, the Lancaster Area is
classified under subpart 2. The June 8, 2007 opinion clarifies that the
Court did not vacate the Phase 1 Rule's provisions with respect to
classifications for areas under subpart 2. The Court's decision
therefore upholds EPA's classifications for those areas classified
under subpart 2 for the 8-hour ozone standard. In its proposal, EPA
proposed to find that the 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 Area
satisfied the requirements under either scenario, EPA is proceeding to
finalize the redesignation and to conclude that the 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 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 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 MVEBs, 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
comply with the applicable requirements of EPA's conformity regulations
at 40 CFR part 93.
II. Final Action
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
September 20, 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
Lancaster Area has attained the 8-hour ozone standard. The final
approval of this redesignation request will change the designation of
the Lancaster Area from nonattainment to attainment for the 8-hour
ozone standard. EPA is approving the maintenance plan for the Lancaster
Area submitted on September 20, 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 September 20, 2006,
and supplemented on November 8, 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 NOX and VOCs in the Lancaster Area
for the 8-hour ozone maintenance plan are adequate and approved for
conformity purposes. As a result of our finding, the Lancaster 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)
------------------------------------------------------------------------
Budget year NOX VOC
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2009.................................................. 22.3 14.3
2018.................................................. 9.0 7.8
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The Lancaster Area is subject to the CAA's requirements for marginal
nonattainment areas until and unless it is redesignated to attainment.
[[Page 36891]]
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 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.
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 (65 FR 67249, November 9, 2000).
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. 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 4, 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 Lancaster 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
Air pollution control, National parks, Wilderness areas.
Dated: June 25, 2007.
Donald S. Welsh,
Regional Administrator, Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart NN--Pennsylvania
0
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 Lancaster, Pennsylvania Area at the end of
the table to read as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(e) * * *
(1) * * *
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Name of non-regulatory SIP Applicable State submittal Additional
revision geographic area date EPA approval date explanation
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* * * * * * *
8-Hour Ozone Maintenance Plan Lancaster Area 9/20/06, 11/08/06. 7/06/07 [Insert
and 2002 Base Year Emissions (Lancaster page number where
Inventory. County). the document
begins].
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[[Page 36892]]
PART 81--[AMENDED]
0
3. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
4. In Sec. 81.339, the table entitled ``Pennsylvania--Ozone (8-Hour
Standard)'' is amended by revising the entry for the Lancaster, PA Area
to read as follows:
Sec. 81.339 Pennsylvania.
* * * * *
Pennsylvania--Ozone
[8-Hour Standard]
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Designation \a\ Category/classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
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* * * * * * *
Lancaster, PA: Lancaster County......... 07/06/07 Attainment.
* * * * * * *
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\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. E7-12850 Filed 7-5-07; 8:45 am]
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