

[Federal Register: May 8, 2007 (Volume 72, Number 88)]
[Proposed Rules]               
[Page 26046-26057]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my07-32]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2006-0862; FRL-8310-1]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve 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 Tioga County ozone nonattainment area 
(Tioga Area) be redesignated as attainment for the 8-hour ozone 
national ambient air quality standard (NAAQS). EPA is proposing to 
approve the ozone redesignation request for Tioga Area. In conjunction 
with its redesignation request, PADEP submitted a SIP revision 
consisting of a maintenance

[[Page 26047]]

plan for Tioga 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 Tioga Area has attained the 
8-hour ozone NAAQS, based upon three years of complete, quality-assured 
ambient air quality ozone monitoring data for 2003-2005. EPA's proposed 
approval of the 8-hour ozone redesignation request is based on its 
determination that the Tioga Area has met the criteria for 
redesignation to attainment specified in the Clean Air Act (CAA). In 
addition, PADEP submitted a 2002 base year inventory for the Tioga Area 
which EPA is proposing to approve 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 
Tioga Area maintenance plan for purposes of transportation conformity, 
which EPA is also proposing to approve. EPA is proposing approval of 
the redesignation request, and the maintenance plan and the 2002 base 
year inventory SIP revisions in accordance with the requirements of the 
CAA.

DATES: Written comments must be received on or before June 7, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0862 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    B. E-mail: miller.linda@epa.gov.
    C. Mail: EPA-R03-OAR-2006-0862, Linda Miller, Acting 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-
2006-0862. 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, P.O. Box 8468, Harrisburg, 
Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'', 
``us'', or ``our'' is used, we mean EPA.

Table of Contents

I. What Are the 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 State's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and 
Identified in the Maintenance Plan for the Tioga Area Adequate and 
Approvable?
VIII. Proposed Action
IX. Statutory and Executive Order Reviews

I. What Are the Actions EPA Is Proposing to Take?

    On September 28, 2006, PADEP formally submitted a request to 
redesignate the Tioga Area from nonattainment to attainment of the 8-
hour NAAQS for ozone. Concurrently, on September 28, 2006, PADEP 
submitted a maintenance plan for the Tioga Area as a SIP revision to 
ensure continued attainment for at least 10 years after redesignation. 
PADEP also submitted a 2002 base year inventory as a SIP revision on 
September 28, 2006 and a supplement submittal on November 14, 2006. The 
Tioga Area is currently designated as a basic 8-hour ozone 
nonattainment area. EPA is proposing to determine that the Tioga 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 
CAA. EPA is, therefore, proposing to approve the redesignation request 
to change the designation of the Tioga Area from nonattainment to 
attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve 
the Tioga Area maintenance plan as a SIP revision, such approval being 
one of the CAA criteria for redesignation to attainment status. The 
maintenance plan is designed to ensure continued attainment in the 
Tioga Area for the next ten years. EPA is also proposing to approve the 
2002 base year inventory for the Tioga Area as a SIP revision. 
Additionally, EPA is announcing its action on the adequacy process for 
the MVEBs identified in the Tioga Area maintenance plan, and proposing 
to approve the MVEBs identified for volatile organic compounds (VOC) 
and nitrogen oxides (NOX) 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 CAA 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 ozone standard. EPA

[[Page 26048]]

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 Tioga Area was designated as basic 8-hour ozone 
nonattainment status 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 Tioga Area (as well as most other 
areas of the country) effective June 15, 2005. See, 40 CFR 50.9(b); 69 
FR at 23966 (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), See, 
South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. 
Cir. 2006) (hereafter ``South Coast.''). The Court held that certain 
provisions of EPA's Phase 1 Rule were inconsistent with the 
requirements of the Clean Air Act. The Court rejected EPA's reasons for 
implementing the 8-hour standard in nonattainment areas under subpart 1 
in lieu of subpart 2 of Title I, Part D of the Act. The Court also held 
that EPA improperly failed to retain four 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; (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) the certain conformity 
requirements for certain types of federal actions. The Court upheld 
EPA's authority to revoke the 1-hour standard provided there were 
adequate anti-backsliding provisions. Elsewhere in this document, 
mainly in section VI.B. ``The Tioga Area Has Met All Applicable 
Requirements Under Section 110 and Part D of the CAA and Has Fully 
Approved SIP under Section 110(k) of the CAA,'' EPA discusses its 
rationale why the decision in South Coast is not an impediment to 
redesignating the Tioga Area to attainment of the 8-hour ozone NAAQS.
    The CAA, 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. Some 
8-hour ozone nonattainment areas are subject only to the provisions of 
subpart 1. Other areas are also subject to the provisions of subpart 2. 
Under EPA's 8-hour ozone implementation rule, an area was classified 
under subpart 2 based on its 8-hour ozone design value (i.e., the 3-
year average annual fourth-highest daily maximum 8-hour average ozone 
concentration), if it had a 1-hour design value at or above 0.121 ppm 
(the lowest 1-hour design value in the CAA for subpart 2 requirements). 
All other areas are covered under subpart 1, based upon their 8-hour 
design values. In 2004, Tioga Area was designated a basic 8-hour ozone 
nonattainment area based upon air quality monitoring data from 2001-
2003, and therefore, 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 concentrations 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 as determined in Appendix I of 40 CFR part 50. The ozone 
monitoring data from the 3-year period of 2003-2005 indicates that the 
Tioga Area has a design value of 0.081 ppm. Therefore, the ambient 
ozone data for the Tioga Area indicates no violations of the 8-hour 
ozone standard.

B. The Tioga Area

    The Tioga Area consists of Tioga County, Pennsylvania. Prior to its 
designation as an 8-hour ozone nonattainment area, Tioga Area was an 
attainment/unclassifiable area for the 1-hour ozone nonattainment 
NAAQS. See 56 FR 56694 (November 6, 1991).
    On September 28, 2006, PADEP requested that the Tioga 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 2003-2005, indicating that the 8-hour NAAQS for 
ozone had been achieved in the Tioga Area. The data satisfies the CAA 
requirements when 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) is less than or equal to 0.08 ppm (i.e., 0.084 ppm 
when rounding is considered). Under the CAA, a nonattainment area may 
be redesignated if sufficient complete, quality-assured data is 
available to determine that the area has attained the standard and the 
area meets the other CAA redesignation requirements set forth in 
section 107(d)(3)(E).

III. What Are the Criteria for Redesignation to Attainment?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA, 
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 redesignation in the General Preamble for 
the Implementation of Title I of the CAA Amendments of 1990, 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,

[[Page 26049]]

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 (TSD's) 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 September 28, 2006, PADEP requested redesignation of the Tioga 
Area to attainment for the 8-hour ozone standard. On September 28, 
2006, PADEP submitted a maintenance plan for the Tioga Area as a SIP 
revision to assure continued attainment at least 10 years after 
redesignation. EPA has determined that the Tioga Area has attained the 
standard and has met the requirements for redesignation set forth in 
section 107(d)(3)(E). PADEP also submitted a 2002 base year inventory 
concurrently with its maintenance plan as a SIP revision and 
supplemented on November 14, 2006.

V. What Would Be the Effect of These Actions?

    Approval of the redesignation request would change the designation 
of the Tioga 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 Tioga 
Area for the next 10 years. The maintenance plan includes contingency 
measures to remedy any future violations of the 8-hour NAAQS (should 
they occur), and identifies the MVEBs for NOX and VOC for 
transportation conformity purposes for the years 2004, 2009 and 2018. 
These motor vehicle emissions (2004) and MVEBs (2009 and 2018) are 
displayed in the following table:

     Table 1.--Motor Vehicle Emissions Budgets in Tons Per Day (tpd)
------------------------------------------------------------------------
                         Year                             NOX      VOC
------------------------------------------------------------------------
2004..................................................      4.8      3.0
2009..................................................      3.4      2.2
2018..................................................      1.6      1.3
------------------------------------------------------------------------

VI. What is EPA's Analysis of the State's Request?

    EPA is proposing to determine that Tioga Area has attained the 8-
hour ozone standard and that all other redesignation criteria have been 
met. The following is a description of how PADEP's September 28, 2006 
submittal satisfies the requirements of section 107(d)(3)(E) of the 
CAA.

A. The Tioga Area Has Attained the 8-Hour Ozone NAAQS

    EPA is proposing to determine that the Tioga 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 and 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 Tioga Area, there is one monitor that measures air quality 
with respect to ozone. As part of its redesignation request, 
Pennsylvania submitted ozone monitoring data for the years 2003-2005 
(the most recent three years of data available as of the time of the 
redesignation request) for the Tioga Area. This data has been quality 
assured and is recorded in AQS. The fourth-high 8-hour daily maximum 
concentrations, along with the three-year average, are summarized in 
Table 2.

 Table 2.--Tioga County Nonattainment Area Fourth Highest 8-Hour Average
            Values; Tioga County Monitor, AQS ID 42-117-4000
------------------------------------------------------------------------
                                              Annual 4th  High Reading
                   Year                                 (ppm)
------------------------------------------------------------------------
2003......................................  0.084
2004......................................  0.079
2005......................................  0.080
------------------------------------------------------------------------
    The average for the 3-year period 2003 through 2005 is 0.081 ppm
------------------------------------------------------------------------

    The air quality data for 2003-2005 show that the Tioga Area has 
attained the standard with a design value of 0.081 ppm. The data 
collected at the Tioga Area monitor satisfies the CAA requirement that 
the 3-year average of the annual fourth-highest daily maximum 8-hour 
average ozone concentration is less than or equal to 0.08 ppm. PADEP's 
request for redesignation for the Tioga Area indicates that the data 
was quality assured in accordance with 40 CFR part 58. PADEP uses the 
AQS as the permanent database to maintain its data and quality assures 
the data transfers and content for accuracy. 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 taken from 
AQS indicates that Tioga Area has attained the 8-hour ozone NAAQS.

[[Page 26050]]

B. The Tioga Area Has Met All Applicable Requirements Under Section 110 
and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) 
of the CAA

    EPA has determined that the Tioga Area has met all SIP requirements 
applicable for purposes of this redesignation under section 110 of the 
CAA (General SIP Requirements) and that it meets all applicable SIP 
requirements under Part D of Title I of the CAA, in accordance with 
section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP 
is fully approved 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 what 
requirements are applicable to the area and determined that the 
applicable portions of the SIP meeting these requirements are fully 
approved under section 110(k) of the CAA. We note that SIPs must be 
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 CAA 
requirements that come due prior to the submittal of a complete 
redesignation request. See also, Michael Shapiro memorandum, September 
17, 1993, and 60 FR 12459, 12465-66, (March 7, 1995) (redesignation of 
Detroit-Ann Arbor). Applicable requirements of the CAA 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 
CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also, 68 FR 
25424, 25427 (May 12, 2003) (redesignation of St. Louis).
    This action also sets forth EPA's views on the potential effect of 
the Court's ruling in South Coast on this redesignation action. For the 
reasons set forth below, EPA does not believe that the Court's ruling 
alters any requirements relevant to this redesignation action so as to 
preclude redesignation, and does not prevent EPA from finalizing this 
redesignation. EPA believes that the Court's decision, as it currently 
stands or as it may be modified based upon any petition for rehearing 
that has been filed, imposes no impediment to moving forward with 
redesignation of this area to attainment, because in either 
circumstance 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 CAA delineates the general 
requirements for a SIP, which include 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 requirement (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 Tioga 
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 53174-53176, October 10, 1996), (62 FR 24816, 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 50399, 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(l) 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. 
Any section 110 requirements that are linked to the Part D requirements 
for 8-hour ozone nonattainment areas are not yet due, because, as we 
explain later in this notice, no Part D requirements applicable for 
purposes of redesignation under the 8-hour standard became due prior to 
submission of the redesignation request.
    Because the Pennsylvania SIP satisfies all of the applicable 
general SIP elements and requirements set forth in section 110(a)(2), 
EPA concludes that Pennsylvania has satisfied the criterion of section 
107(d)(3)(E) regarding section 110 of the Act.

[[Page 26051]]

2. Part D Nonattainment Area Requirements Under the 1-Hour and 8-Hour 
Standards
    The Tioga Area was designated a basic nonattainment area for the 8-
hour ozone standard. Sections 172-176 of the CAA, found in subpart 1 of 
Part D, set forth the basic nonattainment requirements for all 
nonattainment areas. As discussed previously, because the Tioga Area 
was designated unclassifiable/attainment under the 1-hour standard, and 
was never designated nonattainment for the 1-hour standard, there are 
no outstanding 1-hour nonattainment area requirements it would be 
required to meet. Thus, we find that the Court's ruling does not result 
in any additional 1-hour requirements for purposes of redesignation.
    With respect to the 8-hour standard, EPA notes that 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 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 requirements 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.
    At the time the redesignation request was submitted, the Tioga Area 
was classified under subpart 1 and was obligated to meet subpart 1 
requirements. Under EPA's longstanding interpretation of section 
107(d)(3)(E) of the Clean Air 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. 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, 12465-66 (March 7, 1995) (Redesignation of 
Detroit-Ann Arbor); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004) 
(which upheld this interpretation); 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 D.C. Circuit recognized the inequity in such retroactive 
rulemaking. See, Sierra Club v. Whitman, 285 F. 3d 63 (D.C. Cir. 2002), 
in which the D.C. Circuit upheld a District Court's ruling refusing to 
make retroactive an EPA determination 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 plan 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 resedignation 
additional SIP requirements under subpart 2 that were not in effect at 
the time it submitted its redesignation request.
    With respect to the 8-hour standard, EPA proposes to determine that 
Pennsylvania's SIP meets all applicable SIP requirements under Part D 
of the CAA, because no 8-hour ozone standard Part D requirements 
applicable for purposes of redesignation became due prior to submission 
of the redesignation request for the Tioga Area. Because the 
Commonwealth submitted a complete redesignation request for the Tioga 
Area prior to the deadline for any submissions required under the 8-
hour standard, we have determined that the Part D requirements do not 
apply to the Tioga Area for the purposes of redesignation.
    In addition to the fact that no Part D requirements applicable 
under the 8-hour standard became due prior to submission of the 
redesignation request, EPA believes it is reasonable to interpret the 
general conformity and NSR requirements of Part D as not requiring 
approval prior to redesignation.
    With respect to section 176, Conformity Requirements, section 
176(c) of the CAA 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 CAA required 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 Tioga Area, EPA has also determined that before 
being redesignated, the Tioga Area need not comply with the requirement 
that a NSR program be approved prior to redesignation. The Part D NSR 
SIP revision does not come due until June 15, 2007, see, 70 FR 71683, 
November 29, 2005, and thus is not an applicable requirement with 
respect to redesignation. Additionally, Pennsylvania's preconstruction 
permitting program regulations in Chapter 127.200-217 of the 
Pennsylvania Code (approved into the SIP at 40 CFR 52.2020(c)), apply 
only to ozone nonattainment area sources that are located in areas 
classified as marginal or worse, i.e., to subpart 2 nonattainment 
areas. Pennsylvania's NSR regulations do not apply to sources in 
nonattainment areas classified as basic nonattainment under subpart 1. 
Consequently, sources in the Tioga Area are subject to Part D NSR 
requirements of Appendix S to 40 CFR part 51, pursuant to 40 CFR 
52.24(k). Appendix S of 40 CFR part 51 contains the preconstruction 
permitting program that applies to major stationary sources in 
nonattainment areas lacking an approved Part D NSR program. Appendix S 
applies during the interim period after EPA designates an area as 
nonattainment, but before EPA approves revisions to a SIP to implement 
the Part D NSR requirements for that pollutant. See, 70 FR 71618 
(November 29, 2005). The Chapter 127 Part D NSR regulations in the 
Pennsylvania SIP explicitly apply to attainment areas within the Ozone 
Transport Region (OTR). See, Chapter 127 in 40 CFR 52.2020(c)(1); See, 
66 FR 53094, October 19, 2001. Therefore, after the Tioga Area is 
redesignated to attainment, sources in the Tioga Area will be subject 
to Part D NSR applicable under the permitting regulations in

[[Page 26052]]

Chapter 127, because the Tioga Area is located in the OTR.
    All areas in the 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 
requirements include reasonably available control technology (RACT), 
NSR, enhanced vehicle inspection and maintenance, and Stage II vapor 
recovery or a comparable measure.
    In the case of Tioga Area, which is located in the OTR, 
nonattainment NSR will continue to be applicable after redesignation. 
On October 19, 2001 (66 FR 53094), EPA fully approved the 1-hour 
Pennsylvania's NSR SIP revision consisting of Pennsylvania's Chapter 
127 Part D NSR regulations that cover the Tioga Area. The Chapter 127 
Part D NSR regulations in the Pennsylvania SIP explicitly apply the 
requirements for NSR of section 184 of the CAA to attainment areas 
within the OTR.
    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 factors. 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 RACT, even after redesignation. Second, the section 184 control 
measures are region-wide requirements and do not apply to the Tioga 
Area by virtue of the area's designation and classification. Rather, 
section 184 measures are required in the Tioga Area because it is 
located in the OTR. See, 61 FR 53174, 53175-53176 (October 10, 1996) 
and 62 FR 24826, 24830-32 (May 7, 1997).
3. The Tioga Area Has a Fully Approved SIP for the Purposes of 
Redesignation
    EPA has fully approved the Pennsylvania SIP for the purposes of 
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 also, 68 
FR at 25425 (May 12, 2003) and citations therein.
    The Tioga Area was a 1-hour attainment/unclassifiable area at the 
time of its designation as a basic 8-hour ozone nonattainment area on 
April 30, 2004 (69 FR 23857). Because the Tioga Area was a 1-hour 
attainment/unclassifiable area, there are no previous Part D SIP 
submittal requirements. Also, no Part D submittal requirements have 
come due prior to the submittal of the 8-hour maintenance plan for the 
area. Therefore, all Part D submittal requirements have been fulfilled. 
Because there are no outstanding SIP submission requirements applicable 
for the purposes of redesignation of the Tioga Area, the applicable 
implementation plan satisfies all pertinent SIP requirements. As 
indicated previously, EPA believes that the section 110 elements not 
connected with Part D nonattainment plan submissions and not linked to 
the area's nonattainment status are not applicable requirements for 
purposes of redesignation. EPA also believes that no 8-hour Part D 
requirements applicable for purposes of redesignation have yet become 
due for the Tioga Area, and therefore they need not be approved into 
the SIP prior to redesignation.

C. The Air Quality Improvement in the Tioga 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 Tioga 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 Day (tpd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                           Year                                  Point               Area             Nonroad             Mobile             Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Volatile Organic Compounds (VOC)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 2002................................................                0.6                2.7                2.1                3.4                8.8
Year 2004................................................                0.6                2.7                2.2                3.0                8.5
Diff. (02-04)............................................                0.0                0.0                0.1               -0.4               -0.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Nitrogen Oxides (NOX)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 2002................................................                1.9                0.3                1.5                5.4                9.1
Year 2004................................................                2.0                0.3                1.5                4.8                8.6
Diff. (02-04)............................................                0.1                0.0                0.0               -0.6               -0.5
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Between 2002 and 2004, VOC emissions were reduced by 0.3 tpd, and 
NOX emissions were reduced by 0.5 tpd. These reductions and 
anticipated future reductions are due to the following permanent and 
enforceable measures implemented or in the process of being implemented 
in the Tioga Area:
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 (56 FR 25724, June 5, 1991)
    --Tier 2 (65 FR 6698, February 10, 2000)
    Heavy Duty Engines and Vehicles Standards (62 FR 54694, October 21, 
1997 and 65 FR 59896, October 6, 2000)
    National Low Emission Vehicle (NLEV) (64 FR 72564, December 28, 
1999)
    Vehicle Safety Inspection Program (70 FR 58313, October 6, 2005)
4. Nonroad Sources
    Nonroad Diesel Engine and Fuel (69 FR 38958, June 29, 2004)
    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.

[[Page 26053]]

D. The Tioga Area Has a Fully Approved Maintenance Plan Pursuant to 
Section 175A of the CAA

    In conjunction with its request to redesignate the Tioga Area to 
attainment status, Pennsylvania submitted a SIP revision to provide for 
maintenance of the 8-hour ozone NAAQS in the Tioga Area for at least 10 
years after redesignation. Pennsylvania is requesting that EPA approve 
this SIP revision as meeting the requirement of section 175A of the 
CAA. Once approved, the maintenance plan for the 8-hour ozone NAAQS 
will ensure that the SIP for the Tioga Area meets the requirements of 
the CAA regarding maintenance of the applicable 8-hour ozone standard.
What Is Required In A Maintenance Plan?
    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under 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 State must submit a revised maintenance plan 
demonstrating that attainment will continue to be maintained for the 
next 10-year period 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 CAA sets forth the elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. The Calcagni memo provides additional guidance on the 
content of a maintenance plan. An ozone maintenance plan should address 
the following provisions:
    (1) An attainment emissions inventory;
    (2) A maintenance demonstration;
    (3) A monitoring network;
    (4) Verification of continued attainment; and
    (5) A contingency plan.
Analysis of the Tioga Area Maintenance Plan
    (a) Attainment Inventory--An attainment inventory includes the 
emissions during the time period associated with the monitoring data 
showing attainment. An attainment year of 2004 was used for the Tioga 
Area since it is a reasonable year within the 3-year block of 2002-2004 
and accounts for reductions attributable to implementation of the CAA 
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.
    PADEP prepared comprehensive VOC and NOX emissions 
inventories for the Tioga Area, including point, area, mobile on-road, 
and mobile non-road sources for a base year of 2002.
    To develop the NOX and VOC base year emissions 
inventories, PADEP used the following approaches and sources of data:
    (i) Point source emissions--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 System 
and EPA's publication series AP-42 and are based on Source 
Classification Code (SCC). Each process has at least one SCC assigned 
to it. If the owners and operators of facilities provide more accurate 
emission data based upon other factors, these emission estimates 
supersede those calculated using SCC codes.
    (ii) Area source emissions--Area source emissions are generally 
estimated by multiplying an emission factor by some known indicator or 
collective activity for each area source category at the county level. 
Pennsylvania estimates emissions from area sources using emission 
factors and SCC codes in a method similar to that used for stationary 
point sources. Emission factors may also be derived from research and 
guidance documents if those documents are more accurate than FIRE and 
AP-42 factors. Throughput estimates are derived from county-level 
activity data, by apportioning national and statewide activity data to 
counties, from census numbers, and from county employee numbers. County 
employee numbers are based upon North American Industry Classification 
System (NAICS) codes to establish that those numbers are specific to 
the industry covered.
    (iii) On-road mobile sources--PADEP employs an emissions estimation 
methodology that uses current EPA-approved highway vehicle emission 
model, MOBILE 6.2, to estimate highway vehicle emissions. The Tioga 
Area highway vehicle emissions in 2004 were estimated using MOBILE 6.2 
and PENNDOT estimates of vehicles miles traveled (VMT) by vehicle type 
and roadway type.
    (iv) Mobile nonroad emissions--The 2002 emissions for the majority 
of nonroad emission source categories were estimated using the EPA 
NONROAD 2005 model. The NONROAD model estimates emissions for diesel, 
gasoline, liquefied petroleum gasoline, and compressed natural gas-
fueled nonroad equipment types and includes growth factors. The NONROAD 
model does not estimate emissions from aircraft or locomotives. For 
2002 locomotive emissions, PADEP projected emissions from a 1999 survey 
using national fuel information and EPA emission and conversion 
factors. There are no commercial aircraft operations in the Tioga Area. 
For 2002 aircraft emissions, PADEP estimated emissions using small 
aircraft operation statistics from http://www.airnav.com, and emission 

factors and operational characteristics in the EPA-approved model, 
Emissions and Dispersion Modeling System (EDMS).
    The 2004 attainment year VOC and NOX emissions for the 
Tioga Area are summarized along with the 2009 and 2018 projected 
emissions for this area in Tables 4 and 5, which cover the 
demonstration of maintenance for this area. EPA has concluded that 
Pennsylvania has adequately derived and documented the 2004 attainment 
year VOC and NOX emissions for this area.
    (b) Maintenance Demonstration--On September 28, 2006, PADEP 
submitted a SIP revision to supplement its September 28, 2006 
redesignation request. The submittal by PADEP consists of the 
maintenance plan as required by section 175A of the CAA. The Tioga Area 
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 Tioga 
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 25430-32.
    Tables 4 and 5 specify the VOC and NOX emissions for the 
Tioga Area for 2004, 2009, and 2018. PADEP chose 2009 as an interim 
year in the 10-year 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 10-year 
maintenance period.

[[Page 26054]]



                                Table 4.--Total VOC Emissions for 2004-2018 (tpd)
----------------------------------------------------------------------------------------------------------------
                                                                2004 VOC          2009 VOC          2018 VOC
                      Source category                           emissions         emissions         emissions
----------------------------------------------------------------------------------------------------------------
Mobile*...................................................               3.0               2.2               1.3
Nonroad...................................................               1.5              1.36               1.0
Area......................................................               2.7               2.4               2.6
Point.....................................................               0.6               0.5               0.6
Total.....................................................               8.4               7.1              6.0
----------------------------------------------------------------------------------------------------------------
*Includes safety margin identified in the motor vehicle emission budgets for transportation conformity.


                                  Table 5.--Total NOX Emissions 2004-2018 (tpd)
----------------------------------------------------------------------------------------------------------------
                                                                2004 NOX          2009 NOX          2018 NOX
                      Source category                           emissions         emissions         emissions
----------------------------------------------------------------------------------------------------------------
Mobile*...................................................               4.8               1.3               1.6
Nonroad...................................................               1.5               1.3               0.8
Area......................................................               0.3               0.3               0.3
Point.....................................................               2.0               2.1               2.6
Total.....................................................               8.5               7.1              5.3
----------------------------------------------------------------------------------------------------------------
*Includes safety margin identified in the motor vehicle emission budgets for transportation conformity.

    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:
    1. Pennsylvania's Portable Fuel Containers (69 FR 70893, December 
8, 2004)
    2. Pennsylvania's Consumer Products (69 FR 70895, December 8, 2004)
    3. Pennsylvania's Architectural and Industrial Maintenance (AIM) 
Coatings (69 FR 68080, November 23, 2004)
    4. Federal NOX SIP Call (66 FR 43795, August 21, 2001)
    5. Federal Clean Air Interstate Rule (71 FR 25328, April 28, 2006)
    6. FMVCP for passenger vehicles and light-duty trucks and cleaner 
gasoline (2009 and 2018 fleet)--Tier 1 and Tier 2 (56 FR 25724, June 5, 
1991 and 65 FR 6698, February 10, 2000)
    7. NLEV Program, which includes the Pennsylvania's Clean Vehicle 
Program for passenger vehicles and light-duty trucks (69 FR 72564, 
December 28, 1999)--proposed amendments to move the implementation to 
model year (MY) 2008
    8. Heavy duty diesel on-road (2004/2007) and low-sulfur on-road 
(2006) (66 FR 5002, January 18, 2001)
    9. Non-road emissions standards (2008) and off-road diesel fuel 
(2007/2010) (69 FR 38958, June 29, 2004)

    Based upon 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 Tioga Area.
    (c) Monitoring Network--There is currently one monitor measuring 
ozone in the Tioga Area. Pennsylvania will continue to operate its 
current air quality monitor in accordance with 40 CFR part 58.
    (d) Verification of Continued Attainment--The Commonwealth will 
track the attainment status of the ozone NAAQS in the Tioga Area by 
reviewing air quality and emissions during the maintenance period. The 
Commonwealth will perform an annual evaluation of two key factors, 
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 the area exceeds the attainment year inventory 
(2004) by more than 10 percent. Based on these evaluations, the 
Commonwealth will consider whether any further emission control 
measures should be implemented.
    (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 CAA requires 
that a maintenance plan include such contingency measures as EPA deems 
necessary to ensure that the State 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 Tioga 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 eight-hour ozone concentrations at the Tioga 
Area monitor are 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 analyze the conditions leading to the 
excessive ozone levels and evaluate what measures might be most 
effective in correcting the excessive ozone levels. PADEP will also 
analyze the potential emissions effect of Federal, state and local 
measure that have been adopted but not yet implemented at the time of 
excessive ozone levels occurred. PADEP will then begin the process of 
implementing any selected measures.
    Contingency measures will be considered in the event that a 
violation of the 8-hour ozone standard occurs at the Tioga County, 
Pennsylvania

[[Page 26055]]

monitor. In the event of a violation of the 8-hour ozone standard, 
contingency measures will be adopted in order to return the area to 
attainment with the standard. Contingency measures to be considered for 
the Tioga Area will include, but not limited to the following:

Non-Regulatory Measures

--Voluntary diesel engine ``chip reflash''--installation software to 
correct the defeat device option on certain heavy duty diesel engines
--Diesel retrofit, including replacement, repowering or alternative 
fuel use, for public or private local onroad or offroad fleets
--Idling reduction technology for Class 2 yard locomotives
--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

Regulatory Measures

--Additional controls on consumer products
--Additional control on portable fuel containers

    The plan lays out a process to have any regulatory contingency 
measures in effect within 19 months of the trigger. The plan also lays 
out a process to implement the 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 Tioga Area Adequate and Approvable?

A. What Are the Motor Vehicle Emissions Budgets?

    Under the CAA, States are required to submit, at various times, 
control strategy SIPs and maintenance plans in ozone areas. These 
control strategy SIPs (i.e. RFP 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. Pursuant to 40 CFR part 93 and Sec.  51.112, MVEBs must 
be established in an ozone maintenance plan. A MVEB is the portion of 
the total allowable emissions that is allocated to highway and transit 
vehicle use and emissions. A 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 CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the 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 budget 
contained therein ``adequate'' for use in determining transportation 
conformity. After EPA affirmatively finds the submitted MVEB is 
adequate for transportation conformity purposes, that 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 CAA. 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.
    The MVEBs for the Tioga Area are listed in Table 1 of this document 
for the 2004, 2009, and 2018 years and are the projected emissions for 
the on-road mobile sources plus any portion of the safety margin 
allocated to the MVEBs. 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 Tioga Area first attained the 8-hour ozone NAAQS during the 
2002 to 2004 time period. The Commonwealth used 2004 as the year to 
determine attainment levels of emissions for the Tioga Area.
    The total emissions from point, area, mobile on-road, and mobile 
non-road sources in 2004 equaled 7.7 tpd of VOC and 8.0 tpd of 
NOX. PADEP projected emissions out to the year 2018 and 
projected a total of 5.5 tpd of VOC and 4.1 tpd of NOX from 
all sources in the Tioga Area. The safety margin for Tioga for 2018 
would be the difference between these amounts, or 2.2 tpd of VOC and 
3.9 tpd 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.

        Table 6.--2009 and 2018 Safety Margins for the Tioga Area
------------------------------------------------------------------------
                                        VOC emissions     NOX emissions
           Inventory year                   (tpd)             (tpd)
------------------------------------------------------------------------
2004 Attainment.....................               7.7               8.0

[[Page 26056]]


2009 Interim........................               6.7               6.2
2009 Safety Margin..................               1.0               1.8
2004 Attainment.....................               7.7               8.0
2018 Final..........................               5.5               4.1
2018 Safety Margin..................               2.2               3.9
------------------------------------------------------------------------

    PADEP allocated 0.2 tpd NOX and 0.1 tpd VOC to the 2009 
interim VOC projected on-road mobile source emissions projection and 
the 2009 interim NOX projected on-road mobile source 
emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs 
the PADEP allocated 0.2 tpd NOX and 0.2 tpd VOC from the 
2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the 
mobile source budgets these portions of the safety margins are no 
longer available, and may no longer be allocated to any other source 
category. Table 7 shows the final 2009 and 2018 MVEBs for the Tioga 
Area.

         Table 7.--2009 and 2018 Final MVEBs for the Tioga Area
------------------------------------------------------------------------
                                        VOC emissions     NOX emissions
           Inventory year                   (tpd)             (tpd)
------------------------------------------------------------------------
2009 projected on-road mobile source               2.1               3.2
 projected emissions................
2009 Safety Margin Allocated to                    0.1               0.2
 MVEBs..............................
2009 MVEBs..........................               2.2               3.4
2018 projected on-road mobile source               1.1               1.4
 projected emissions................
2018 Safety Margin Allocated to                    0.2               0.2
 MVEBs..............................
2018 MVEBs..........................               1.3               1.6
------------------------------------------------------------------------

C. Why Are the MVEBs Approvable?

    The 2004, 2009 and 2018 MVEBs for the Tioga Area are approvable 
because the MVEBs for NOX and VOC, including the allocated 
safety margins, 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 the MVEBs in the Tioga 
Area Maintenance Plan?

    The MVEBs for the Tioga Area maintenance plan are being posted to 
EPA's conformity Web site concurrent 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 
the 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 also proposing to approve the MVEBs as part 
of the maintenance plan. The MVEBs cannot be used for transportation 
conformity until the maintenance plan update 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 Tioga Area 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 Tioga Area 
MVEBs will also be announced on EPA's conformity Web site: http://www.epa.gov.otaq/stateresources/transconf/index.htm
 (once there, click 

on ``Adequacy Review of SIP Submissions'').

VIII. Proposed Actions

    EPA is proposing to determine that the Tioga Area has attained the 
8-hour ozone NAAQS. EPA is also proposing to approve the Commonwealth's 
September 28, 2006 request for the Tioga Area to be redesignated to 
attainment of the 8-hour NAAQS for ozone. 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 CAA. 
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 Tioga Area from nonattainment to attainment for the 
8-hour ozone standard. EPA is also proposing to approve the associated 
maintenance plan and the 2002 base year inventory for Tioga Area, 
submitted on September 28, 2006 and supplemented on November 14, 2006, 
as revisions to the Pennsylvania SIP. EPA is proposing to approve the 
maintenance plan for the Tioga Area because it meets the requirements 
of section 175A as described previously in this notice. EPA is also 
proposing to approve the MVEBs submitted by Pennsylvania for the Tioga 
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 Clean Air Act does not impose any new 
requirements on small entities. Redesignation is an action that affects 
the status of a geographical area and does not impose any new 
regulatory requirements on sources. Redesignation

[[Page 26057]]

of an area to attainment under section 107(d)(3)(E) of the Clean Air 
Act does not impose any new requirements on small entities. 
Redesignation is an action that affects the status of a geographical 
area and does not impose any new regulatory requirements on sources. 
Accordingly, the Administrator certifies that this 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). 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 (65 FR 67249, 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 affect the status of a geographical area, 
does not impose any new requirements on sources, or allow the state to 
avoid adopting or implementing other requirements, and does not alter 
the relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This proposed rule also is not 
subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because 
it approves a state rule implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission; to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Redesignation is an 
action that affects the status of a geographical area and does not 
impose any new requirements on sources. Thus, the requirements of 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (15 U.S.C. 272 note) do not apply. 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 Tioga 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: April 26, 2007.
Judith Katz,
Acting Regional Administrator, Region III.
 [FR Doc. E7-8669 Filed 5-7-07; 8:45 am]

BILLING CODE 6560-50-P
