	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52 and 81

	[EPA-R03-OAR-2007-0605; FRL-         ]

Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania;  Redesignation of the Scranton/Wilkes-Barre 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
Scranton/Wilkes-Barre ozone nonattainment Area (or “Area”) be
redesignated as attainment for the 8-hour ozone ambient air quality
standard (NAAQS).  The Scranton/Wilkes-Barre Area is composed of
Lackawanna, Luzerne, Monroe, and Wyoming Counties.  EPA is approving the
ozone redesignation request for Scranton/Wilkes-Barre Area.  In
conjunction with its redesignation request, PADEP submitted a SIP
revision consisting of a maintenance plan for Scranton/Wilkes-Barre 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 Scranton/Wilkes-Barre 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
Scranton/Wilkes-Barre 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 30 days
from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket
ID Number EPA-R03-OAR-2007-0605.  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:  Brian Rehn, (215) 814-2176, or by
e-mail at   HYPERLINK "mailto:rehn.brian@epa.gov"  rehn.brian@epa.gov .

SUPPLEMENTARY INFORMATION:  

I.  Background	

On September 25, 2007 (72 FR 54390), 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 Scranton/Wilkes-Barre Area that provide for
continued attainment of the 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 Area.  The formal SIP revisions were
submitted by PADEP on June 12, 2007.  Other specific requirements of
Pennsylvania’s redesignation request and maintenance plan SIP
revisions, 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 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 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 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 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 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.                              
                                                                        
                                                                        
                   

II.  Final Action

EPA is approving the Commonwealth of Pennsylvania’s redesignation
request, maintenance plan, and 2002 base year emissions inventory SIP
revisions because they satisfy the requirements for approval.  EPA has
evaluated Pennsylvania’s redesignation request that was submitted on
June 12, 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
Scranton/Wilkes-Barre Area has attained the 8-hour ozone standard.  The
final approval of this redesignation request will change the designation
of the Scranton/Wilkes-Barre Area from nonattainment to attainment for
the 8-hour ozone standard.  EPA is approving the maintenance plan for
the Scranton/Wilkes-Barre Area submitted on June 12, 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 June 12, 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 NOx and VOCs in the Scranton/Wilkes-Barre Area for the 8-hour
ozone maintenance plan are adequate and approved for conformity
purposes. As a result of our finding, the Scranton/Wilkes-Barre 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:

Scranton/Wilkes-Barre Area Adequate and Approved Motor Vehicle Emissions
Budgets 

in Tons per Day (TPD)

Budget Year	VOC 	NOx

2009	25.2	48.3

2018	 16.9	23.7



The Scranton/Wilkes-Barre 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 Scranton/Wilkes-Barre
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.

                                                                        
                            /s/

____                     _                                              
     ___________________________    

Dated:   November 8, 2007    				Donald S. Welsh,                       
         							            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
Scranton-

Wilkes-Barre Area:  Lackawanna, Luzerne, Monroe and Wyoming Counties 
06/12/07	[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
Scranton-Wilkes-Barre, PA, Lackawanna County, Luzerne County, Monroe
County, Wyoming County to read as follows:

§81.339                    Pennsylvania

*          *          *          *          *

Pennsylvania – Ozone (8-Hour Standard)

Designated Area	Designationa	Category/Classification

	Date1	Type	Date1	Type

*           *           *           *           *           *          
*

Scranton-Wilkes-Barre, PA:  Lackawanna County

Luzerne County

Monroe County

Wyoming 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.

*           *           *           *           *

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