	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52 and 81

	[EPA-R03-OAR-2007-0476; FRL-         ]

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

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Final rule.

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
Erie 8-hour ozone nonattainment area (“Erie Area” or “Area”) be
redesignated as attainment for the 8-hour ozone ambient air quality
standard (NAAQS).  The Area is comprised of Erie County, Pennsylvania. 
EPA is approving the ozone redesignation request for Erie Area.  In
conjunction with its redesignation request, PADEP submitted a SIP
revision consisting of a maintenance plan for Erie Area that provides
for continued attainment of the 8-hour ozone NAAQS for at least 10 years
after redesignation.  EPA is approving the 8-hour maintenance plan. 
PADEP also submitted a 2002 base year inventory for the Erie 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 Erie Area maintenance plan for purposes of
transportation conformity, and is approving those MVEBs.  EPA is
approving the redesignation request, and the maintenance plan and the
2002 base year emissions inventory as revisions to the Pennsylvania SIP
in accordance with the requirements of the Clean Air Act (CAA).

EFFECTIVE DATE:  This final rule is effective on [insert date from date
of publication] pursuant to the authority of 5 USC 553(d)(1).

ADDRESSES:  EPA has established a docket for this action under Docket
ID Number EPA-R03-OAR-2007-0476.  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:  Amy Caprio, (215) 814-2156, or by
e-mail at   HYPERLINK "mailto:caprio.amy@epa.gov"  caprio.amy@epa.gov . 

SUPPLEMENTARY INFORMATION:  

I.  Background	

On ______, 2007 (__ FR ______), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Pennsylvania.  The NPR proposed
approval of Pennsylvania’s redesignation request, a SIP revision that
establishes a maintenance plan for the Erie Area that provides for
continued attainment of the 8-hour ozone NAAQS for at least 10 years
after redesignation, and a 2002 base year emissions inventory.  The
formal SIP revisions were submitted by PADEP on April 24, 2007.  Other
specific requirements of Pennsylvania’s redesignation request SIP
revision for the maintenance plan and the rationales for EPA’s
proposed actions are explained in the NPR and will not be restated here.
 No public comments were received on the NPR. 

However, on   SEQ CHAPTER \h \r 1  December 22, 2006, the U.S. Court of
Appeals for the District of Columbia Circuit vacated EPA’s Phase 1
Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April
30, 2004).  South Coast Air Quality Management Dist.  v. EPA, 472 F.3d
882 (D.C.Cir. 2006).  On June 8, 2007, in South Coast Air Quality
Management Dist. v. EPA, Docket No. 04-1201, in response to several
petitions for rehearing, the D. C. Circuit clarified that the Phase 1
Rule was vacated only with regard to those parts of the rule that had
been successfully challenged.  Therefore, the Phase 1 Rule provisions
related to classifications for areas currently classified under subpart
2 of  Title I,  part D of the Act as 8-hour  nonattainment areas, the
8-hour attainment dates and the timing for emissions reductions needed
for attainment of the 8-hour ozone NAAQS remain effective.  The June 8
decision left intact the Court’s rejection of EPA’s reasons for
implementing the 8-hour standard in certain nonattainment areas under
subpart 1 in lieu of subpart 2.  By limiting the vacatur, the Court let
stand EPA’s revocation of the 1-hour standard and those
anti-backsliding provisions of the Phase 1 Rule that had not been
successfully challenged.  The June 8 decision reaffirmed the December
22, 2006 decision that EPA had improperly failed to retain 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; and (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. 

In addition the June 8 decision clarified that the Court’s reference
to conformity requirements for anti-backsliding purposes was limited to
requiring the continued use of 1-hour MVEBs until 8-hour budgets were
available for 8-hour conformity determinations, which is already
required under EPA’s conformity regulations.  The Court thus clarified
that 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
light of the Court’s decisions, redesignation is appropriate under the
relevant redesignation provisions of the Act and longstanding policies
regarding redesignation requests.

  SEQ CHAPTER \h \r 1 In its proposal, EPA proposed to find that the
area had satisfied the requirements under the 1-hour standard whether
the 1-hour standard was deemed to be reinstated or whether the Court’s
decision on the petition for rehearing were modified to require
something less than compliance with all applicable 1-hour requirements. 
Because EPA proposed to find that the area satisfied the requirements
under either scenario, EPA is proceeding to finalize the redesignation
and to conclude that the area met the requirements under the 1-hour
standard applicable for purposes of redesignation under the 8-hour
standard.  These include the provisions of EPA’s anti-backsliding
rules, as well as the additional anti-backsliding provisions identified
by the Court in its rulings.  In its June 8, 2007 decision the Court
limited its vacatur so as to uphold those provisions of the
anti-backsliding requirements that were not successfully challenged. 
Therefore, EPA finds that the area has met the anti-backsliding
requirements, see 40 CFR 51.900 et seq; 70 FR 30592, 30604 (May 26,
2005) which apply by virtue of the area’s classification for the
1-hour ozone NAAQS, as well as the four additional anti-backsliding
provisions identified by the Court, or that such requirements are not
applicable for purposes of redesignation.  In addition, with respect to
the requirement for transportation conformity under the 1-hour standard,
the Court in its June 8 decision clarified that for those areas with
1-hour MVEBs, anti-backsliding requires only that those 1-hour budgets
must be used for 8-hour conformity determinations until replaced by
8-hour budgets.  To meet this requirement, conformity determinations in
such areas must continue to comply with the applicable requirements of
EPA’s conformity regulations at 40 CFR Part 93.  The court clarified
that 1-hour conformity determinations are not required for
anti-backsliding purposes.                                              
                                                                        
                                                                        

II.  Final Action

EPA is approving the Commonwealth of Pennsylvania’s redesignation
request, maintenance plan, and the 2002 base year emissions inventory
because the requirements for approval have been satisfied.  EPA has
evaluated Pennsylvania’s redesignation request that was submitted on
April 24, 2007 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 Erie Area
has attained the 8-hour ozone standard.  The final approval of this
redesignation request will change the designation of the Erie Area from
nonattainment to attainment for the 8-hour ozone standard.  EPA is
approving the maintenance plan for the Erie Area submitted on April 24,
2007 as a revision to the Pennsylvania SIP.  EPA is also approving the
MVEBs submitted by PADEP in conjunction with its redesignation request. 
In addition, EPA is approving the 2002 base year emissions inventory
submitted by PADEP on April 24, 2007 as a revision to the Pennsylvania
SIP.  In this final rulemaking, EPA is notifying the public that we have
found that the MVEBs for volatile organic compounds (VOC) and nitrogen
oxides (NOx) in the Erie Area for the 8-hour ozone maintenance plan are
adequate and approved for conformity purposes.  As a result of our
finding, the Erie Area must use the MVEBs from the submitted 8-hour
ozone maintenance plan for future conformity determinations.  The
adequate and approved MVEBs are provided in the following table:

Adequate and Approved Motor Vehicle Emissions Budgets in Tons per Summer
Day (tpsd)

Budget Year	VOC	NOx

2009	6.5	15.6

2018	4.0	6.7



The Erie 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.  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 rule also does not have tribal implications
because it will not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).  This action also
does not have Federalism implications because it does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999).  This
action merely approves a state rule implementing a Federal requirement,
and does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act.  This rule also is
not subject to Executive Order 13045 (Protection of Children from
Environmental Health Risks and Safety Risks( (62 FR 19885, April 23,
1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA(s role is to approve state choices,
provided that they meet the criteria of the Clean Air Act.  In this
context, in the absence of a prior existing requirement for the State to
use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS.  It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act.  Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272 note) do not apply.  This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B.   Submission to Congress and the Comptroller General

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

C.  Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial
review of this action must be filed in the United States Court of
Appeals for the appropriate circuit by [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 Erie
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.

September 25, 2007						/s/         

________________                                                   
___________________________    

Dated:                            				Donald S. Welsh,                  
              							            Regional Administrator,

                                  					Region III.

40 CFR part 52 is 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 for the 8-hour Ozone Maintenance Plan and the 2002 Base Year
Emissions Inventory for Erie County, Pennsylvania 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
Erie County	04/24/07	[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 Erie, PA:  Erie
County to read as follows:

§81.339                    Pennsylvania

*          *          *          *          *

Pennsylvania – Ozone (8-Hour Standard)

Designated Area	Designationa	Category/Classification

	Date1	Type	Date1	Type

*           *           *           *           *           *          
*

Erie, PA:  Erie County	[Insert 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.

*           *           *           *           *

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