ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52 and 81

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

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.

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).

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

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 www.regulations.gov website.  Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute.  Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form.  Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103.  Copies of the State
submittal are available at the Pennsylvania Department of 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 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 USC 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

2018	1.0	1.3



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
(Public Law 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 [insert date 60 days from date of publication of
this document in the Federal Register].  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, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.

40 CFR Part 81

Air pollution Control, National Parks, Wilderness Areas.

                                                                        
                            

_February 11, 2009_______________                      
__________/s/______________    

Dated:   		    				James W. Newsom,                                 				
		            Acting Regional Administrator,

                                  					Region III.

40 CFR parts 52 and 81 are amended as follows: 

PART 52 - [AMENDED] 

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

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

Subpart NN(Pennsylvania

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

( 52.2020  	Identification of plan.

* 	* 	* 	* 	*

(e) * * *  

   (1)* * *	

Name of non-regulatory SIP revision	Applicable geographic area	State
submittal date	EPA approval date	Additional explanation

*            *             *            *            *            *     
     *

8-Hour Ozone Maintenance Plan and 2002 Base Year Emissions Inventory
Greene County 	01/25/07,

05/23/08

	[Insert Federal Register] publication date] [Insert page number where
the document begins]

	

*	*	*	*	*

PART 81- [AMENDED]

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

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

In §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:

§81.339                    Pennsylvania

*          *          *          *          *

Pennsylvania – Ozone (8-Hour Standard)

Designated Area	Designationa	Category/Classification

	Date1	Type	Date1	Type

*           *           *           *           *           *          
*

Greene County, PA:  Greene County	[Insert date 30 days from date of
publication]	Attainment



*           *           *           *           *           *          
*



aIncludes Indian County located in each county or area, except otherwise
noted.

1This date is June 15, 2004, unless otherwise noted.

*           *           *           *           *

 PAGE   

 PAGE   2 

 PAGE  8 

 PAGE   11 

