  SEQ CHAPTER \h \r 1 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

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

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.

						

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 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 [insert date 30
days from date of publication].

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2006-0862 by one of the following methods:

A.  	    HYPERLINK "http://www.regulations.gov"  www.regulations.gov . 
Follow the on-line instructions for submitting comments.

B.	E-mail:   HYPERLINK "mailto:miller.linda@epa.gov" 
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.

 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     HYPERLINK "http://www.regulations.gov" 
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     HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  or e-mail.  The    
HYPERLINK "http://www.regulations.gov"  www.regulations.gov  website 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     HYPERLINK "http://www.regulations.gov" 
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    
HYPERLINK "http://www.regulations.gov"  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     HYPERLINK "http://www.regulations.gov" 
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   HYPERLINK "mailto:quinto.rose@epa.gov"  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



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 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, 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                        
                     

Year	Annual 4th High Reading (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. 

	

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.

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 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)

Volatile Organic Compounds (VOC)

Year	Point	Area 	Nonroad	Mobile	Total 

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	Point	Area 	Nonroad	Mobile	Total 

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:

Stationary Point Sources 

Federal NOx SIP Call (66 FR 43795, August 21, 2001)

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.						

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   HYPERLINK "http://www.airnav.com"  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.

Table 4: Total VOC Emissions for 2004-2018 (tpd)

Source Category 	2004 VOC Emissions   	2009 VOC Emissions	2018 VOC
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)

Source Category 	2004 NOx Emissions    	2009 NOx Emissions	2018 NOx
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:   

Pennsylvania’s Portable Fuel Containers (69 FR 70893, December 8,
2004)

Pennsylvania’s Consumer Products (69 FR 70895, December 8, 2004)

Pennsylvania’s Architectural and Industrial Maintenance (AIM) Coatings
(69 FR 68080, November 23, 2004)

Federal NOx SIP Call (66 FR 43795, August 21, 2001)

Federal Clean Air Interstate Rule (71 FR 25328, April 28, 2006)

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)

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

Heavy duty diesel on-road (2004/2007) and low-sulfur on-road (2006) (66
FR 5002, January 18, 2001)

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 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 no
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
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 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 

Inventory Year	VOC Emissions (tpd)	NOx Emissions (tpd)

2004 Attainment	7.7	8.0

2009 Interim	6.7	6.2

2009 Safety Margin	1.0	1.8

2004 Attainment	7.7	8.0

2018Final	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 

Inventory Year	VOC Emissions (tpd)	NOx Emissions (tpd)

2009 projected on-road mobile source projected emissions	2.1	3.2

2009 Safety Margin Allocated to MVEBs	0.1	0.2

2009 MVEBs	2.2	3.4

2018 projected on-road mobile source projected emissions	1.1	1.4

2018 Safety Margin Allocated to MVEBs	0.2	0.2

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 website 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:    HYPERLINK
"http://www.epa.gov.otaq/stateresources/transconf/index.htm" 
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 Fed. Reg. 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 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 (Public Law 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.						

				

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