
[Federal Register: March 19, 2009 (Volume 74, Number 52)]
[Rules and Regulations]               
[Page 11671-11674]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr09-12]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52 and 81

[EPA-R03-OAR-2007-0176; FRL-8777-3]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Redesignation of the Greene County 8-Hour Ozone 
Nonattainment Area to Attainment and Approval of the Maintenance Plan 
and 2002 Base-Year Inventory

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Pennsylvania. The Pennsylvania 
Department of Environmental Protection (PADEP) is requesting that the 
Greene County ozone nonattainment area (Greene County Area) be 
redesignated as attainment for the 1997 8-hour ozone national ambient 
air quality standard (NAAQS). EPA is approving the ozone redesignation 
request for the Greene County Area. In conjunction with its 
redesignation request, PADEP submitted a SIP revision consisting of a 
maintenance plan for the Greene County Area that provides for continued 
attainment of the 1997 8-hour ozone NAAQS for at least 10 years after 
redesignation. EPA is approving the 8-hour maintenance plan. PADEP also 
submitted a 2002 base year inventory for the Greene County Area, which 
EPA is approving. In addition, EPA is approving the adequacy 
determination for the motor vehicle emission budgets (MVEBs) that are 
identified in the Greene County Area maintenance plan for purposes of 
transportation conformity, and is approving those MVEBs. EPA is 
approving the redesignation request, the maintenance plan, and the 2002 
base year emissions inventory as revisions to the Pennsylvania SIP in 
accordance with the requirements of the Clean Air Act (CAA or the Act).

DATES: Effective Date: This final rule is effective on April 20, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0176. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://
www.regulations.gov or in hard copy for public inspection during normal 
business hours at the Air Protection Division, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. Copies of the State submittal are available at the 
Pennsylvania Department of Environment Protection, Bureau of Air 
Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, 
Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Melissa Linden, (215) 814-2096, or by 
e-mail at linden.melissa@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 16, 2008 (73 FR 40813), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed 
approval of Pennsylvania's redesignation request and maintenance plan 
SIP revisions for the Greene County Area that provide for continued 
attainment of the 1997 8-hour ozone NAAQS for at least 10 years after 
redesignation. The NPR also proposed approval of a 2002 base year 
emissions inventory for the Greene County Area. The formal SIP 
revisions were submitted by PADEP on January 25, 2007, with one 
significant change

[[Page 11672]]

submitted on May 23, 2008 explaining a new methodology used to project 
future emissions of nitrogen oxides (NOX) from electric 
generating units (EGUs). Other specific requirements of Pennsylvania's 
redesignation request and maintenance plan SIP revisions, and the 
rationale for EPA's proposed actions, are explained in the NPR and will 
not be restated here. No public comments were received on the NPR.
    The holdings in two lawsuits potentially impact this redesignation 
action. As we explain below, we believe neither lawsuit precludes the 
redesignation of the Greene County Area.
    On December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit) vacated EPA's Phase 1 Implementation 
Rule for the 1997 8-Hour Ozone Standard. (69 FR 23591, April 30, 2004). 
South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. 
Cir. 2006). On June 8, 2007, in South Coast Air Quality Management 
Dist. v. EPA, Docket No. 04-1201, in response to several petitions for 
rehearing, the D.C. Circuit clarified that the Phase 1 Rule was vacated 
only with regard to those parts of the rule that had been successfully 
challenged. Therefore, the Phase 1 Rule provisions related to 
classifications for areas currently classified under subpart 2 of Title 
I, part D of the Act as 8-hour nonattainment areas, the 8-hour 
attainment dates, and the timing for emissions reductions needed for 
attainment of the 8-hour ozone NAAQS remain effective. The June 8, 2007 
decision left intact the Court's rejection of EPA's reasons for 
implementing the 8-hour standard in certain nonattainment areas under 
subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let 
stand EPA's revocation of the 1-hour standard and those anti-
backsliding provisions of the Phase 1 Rule that had not been 
successfully challenged. The June 8, 2007 decision reaffirmed the 
December 22, 2006 decision that EPA had improperly failed to retain 
measures required for 1-hour nonattainment areas under the anti-
backsliding provisions of the regulations: (1) Nonattainment area New 
Source Review (NSR) requirements based on an area's 1-hour 
nonattainment classification; (2) Section 185 penalty fees for the 1-
hour severe or extreme nonattainment areas; and (3) measures to be 
implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on 
the contingency of an area not making reasonable further progress 
toward attainment of the 1-hour NAAQS, or for failure to attain NAAQS. 
In addition, the June 8, 2007 decision clarified that the Court's 
reference to conformity requirements for anti-backsliding purposes was 
limited to requiring the continued use of the 1-hour motor vehicle 
emissions budgets until 8-hour budgets were available for 8-hour 
conformity determinations, which is already required under EPA's 
conformity regulations. The Court thus clarified the 1-hour conformity 
determinations are not required for anti-backsliding purposes.
    For the reasons set forth in the proposal, EPA does not believe 
that the Court's rulings alter any requirements relevant to this 
redesignation action so as to preclude redesignation, and do not 
prevent EPA from finalizing this redesignation. EPA believes that the 
Court's December 22, 2006 and June 8, 2007 decisions impose no 
impediment to moving forward with redesignation of this area to 
attainment, because even in the light of the Court's decisions, 
redesignation is appropriate under the relevant redesignation 
provisions of the CAA and longstanding policies regarding redesignation 
requests.
    The second lawsuit relates to EPA's Clean Air Interstate Rule 
(CAIR). On July 11, 2008, the D.C. Circuit ruled on various challenges 
to EPA's CAIR, and issued an order vacating CAIR in its entirety. 531 
F.3d 896 (D.C. Cir. 2008). This order did not become final before 
December 23, 2008, when the Court granted partial rehearing as to the 
remedy set forth in its July 11 decision and issued an opinion 
remanding CAIR to EPA without vacating. During the pendency of the 
remand, CAIR will remain in place. North Carolina v. EPA, 550 F.3d 1176 
(D.C. Cir. 2008). The Court stated, however, in its December 23, 2008 
opinion that EPA was still under an obligation to remedy what the Court 
characterized as ``flaws'' with CAIR, though the Court declined to 
impose a deadline for EPA to finalize that remedy.
    EPA believes that the maintenance plan for Greene County 
demonstrates that the NAAQS will be maintained for at least 120 months 
(ten years), and through 10 ozone seasons, as required by section 
175A(a) of the Act, 42 U.S.C. 7505a(a), whether or not CAIR and its 
specific, associated emissions reductions from a subset of point 
sources (electric generating units), continue in effect. Ten years of 
maintenance of the NAAQS is demonstrated in Table 5 (and its associated 
explanatory material) of the NPR, (73 FR at 40821). As the NPR 
indicates, emissions from area and non-road sources in Greene County 
are projected to have an overall decline from 2004 through the end of 
the 2018 ozone season. Thus, even if point source projected emissions 
were to remain steady or even minimally increase during this same time 
frame, the 1997 ozone NAAQS will be maintained in Greene County. 
However, point source measures currently in place, such as the 
NOX SIP call, allow EPA to conclude that NOX 
emissions from point source in Greene County are more likely to decline 
than increase or hold steady through the end of the 2018 ozone season. 
Thus, even if EPA could comply with the D.C. Circuit's CAIR opinions 
through a new or revised program that did not achieve the same (or any) 
level of the NOX reductions of the current CAIR program in 
Greene County, the projected emissions in the maintenance plan indicate 
that Greene County will continue to maintain the 1997 8-hour ozone 
NAAQS throughout the duration of the 120 month (from the effective date 
of this redesignation) and ten ozone season (beginning of ozone season 
2009 through end of ozone season 2018) maintenance period. EPA may 
therefore approve the redesignation request.

II. Final Action

    EPA is approving the Commonwealth of Pennsylvania's redesignation 
request, maintenance plan, 2002 base-year inventory, and MVEBs SIP 
revisions submitted on January 25, 2007, because they satisfy the 
requirements of the CAA. EPA is also approving the significant change 
of a new methodology that projects future emissions of NOX 
from EGUs, submitted on May 23, 2008 as a revision to the Pennsylvania 
SIP. The final approval of this redesignation request will change the 
designation of the Greene County Area from nonattainment to attainment 
for the 1997 8-hour ozone standard.
    In this final rulemaking, EPA is notifying the public that we have 
found that the MVEBs for NOX and volatile organic compounds 
(VOC) in the Greene County Area for the 1997 8-hour ozone maintenance 
plan are adequate and approved for conformity purposes. As a result of 
our finding, the Greene County Area must use the MVEBs from the 
submitted 8-hour ozone maintenance plan for future conformity 
determinations. The adequate and approved MVEBs for the Greene County 
Area are provided in the following table:

   Table 1--Greene County Motor Vehicle Emissions Budgets in Tons per
                            Summer Day (TPSD)
------------------------------------------------------------------------
                  Year                          VOC             NOX
------------------------------------------------------------------------
2009....................................             1.6             2.6

[[Page 11673]]


2018....................................             1.0             1.3
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    The Greene County Area is subject to the CAA's requirement for the 
basic nonattainment areas until and unless it is redesignated to 
attainment.

III. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Redesignation is an action that affects the status of a geographical 
area and does not impose any new regulatory requirements on sources. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This final rule also does 
not have tribal implications because it will not have a substantial 
direct effect on one or more Indian tribes, on the relationship between 
the Federal Government and Indian tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000). Because this action affects the status of a geographical area, 
does not impose any new requirements on sources, or allows the state to 
avoid adopting or implementing other requirements, this action also 
does not have Federalism implications because it does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This 
action merely approves a state rule implementing a Federal requirement, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the CAA. This rule also is not subject 
to Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it approves a state rule implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. 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 CAA. Redesignation is an action that 
affects the status of a geographical area and does not impose any new 
requirements on sources. Thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply. This rule does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 18, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action.
    This action, approving the redesignation of the Greene County Area 
to attainment for the 8-hour ozone NAAQS, the associated maintenance 
plan, the 2002 base year emission inventory, and the MVEBs identified 
in the maintenance plan, may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

    Dated: February 11, 2009.
James W. Newsom,
Acting Regional Administrator, Region III.

0
40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania

0
2. In Sec.  52.2020, the table in paragraph (e)(1) is amended by adding 
an entry at the end of the table to read as follows:


Sec.  52.2020  Identification of plan.

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

[[Page 11674]]



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   Name of non- regulatory SIP        Applicable        State submittal                           Additional
            revision                geographic area          date          EPA approval date      explanation
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                                                  * * * * * * *
8-Hour Ozone Maintenance Plan     Greene County.....  01/25/07, 05/23/08  March 19, 2009
 and 2002 Base Year Emissions                                              [Insert page
 Inventory.                                                                number where the
                                                                           document begins].
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* * * * *

PART 81--[AMENDED]

0
3. The authority citation for Part 81 continues to read as follows:

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


0
4. In Sec.  81.339, the table entitled ``Pennsylvania-Ozone (8-Hour 
Standard)'' is amended by revising the entry for the Greene County, PA: 
Greene County, to read as follows:


Sec.  81.339  Pennsylvania

* * * * *

                                               Pennsylvania--Ozone
                                                [8-Hour Standard]
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                                              Designation\a\                      Category/classification
         Designated area         -------------------------------------------------------------------------------
                                        Date\1\              Type               Date\1\              Type
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                                                  * * * * * * *
Greene County, PA: Greene County  April 20, 2009....  Attainment........

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

* * * * *
[FR Doc. E9-5851 Filed 3-18-09; 8:45 am]

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