ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52 and 81

[EPA-R03-OAR-2007-0624; FRL-     ]

Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Redesignation of the Clearfield/Indiana 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
Clearfield and Indiana Counties ozone nonattainment area
(Clearfield/Indiana 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 Clearfield/Indiana
Area.  In conjunction with its redesignation request, PADEP submitted a
SIP revision consisting of a maintenance plan for the Clearfield/Indiana
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 Clearfield/Indiana 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
Clearfield/Indiana 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-2007-0624.  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:  Gregory Becoat, (215) 814-2036, or by
e-mail at   HYPERLINK "mailto:becoat.gregory@epa.gov" 
becoat.gregory@epa.gov .

SUPPLEMENTARY INFORMATION:  

I.  Background	

On July 23, 2008 (73 FR 43731), 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 Clearfield/Indiana 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 Clearfield/Indiana Area.  The formal SIP
revisions were submitted by PADEP on June 14, 2007, with two significant
changes submitted on May 23, 2008 that separated the MVEBs for the
Clearfield/Indiana Area into separate MVEBs for Clearfield County and
Indiana County and used a new methodology that projects 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 Clearfield/Indiana Area.

However, 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 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, 2008 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 Clearfield and Indiana
Counties 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 42739, July 23, 2008).  As
the NPR indicates, emissions from area and non-road sources in the
Clearfield/Indiana Area 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 the Clearfield/Indiana Area.  However, point source
measures currently in place, such as the NOx SIP call, allow EPA to
conclude that NOx emissions from point source in the Clearfield/Indiana
Area 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 the Clearfield/Indiana Area, the projected emissions in
the maintenance plan indicate that the Clearfield/Indiana Area 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 June 14, 2007, because they satisfy the
requirements of the CAA.  EPA is also approving the two significant
changes that separated the MVEBs for the Clearfield/Indiana Area into
separate MVEBs for Clearfield County and Indiana County and used 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 Clearfield/Indiana 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
Clearfield/Indiana Area for the 1997 8-hour ozone maintenance plan are
adequate and approved for conformity purposes.  As a result of our
finding, the Clearfield/Indiana Area must use the MVEBs from the
submitted 8-hour ozone maintenance plan for future conformity
determinations.  The Clearfield/Indiana Area contains one Metropolitan
Planning Organizations (MPO) and one Rural Planning Organizations (RPO)
responsible for transportation planning within the Clearfield/Indiana
Area.  The MPO is the Southwestern Pennsylvania Commission for Indiana
County, and the RPO is the North Central PA Regional Planning and
Development Commission for Clearfield County.  The adequate and approved
MVEBs for the MPO and the RPO within the Clearfield/Indiana Area are
provided in the following tables:

Table 1a:  Clearfield/Indiana Motor Vehicle Emissions Budgets 

North Central Pennsylvania Regional Planning and Development Commission
RPO (Clearfield County portion of the Area), in Tons per Summer Day
(tpd)

Year	VOC	NOx

2009 	4.11	11.44

2018	2.71	5.14



Table 1b:  Clearfield/Indiana Motor Vehicle Emissions Budgets

Southwestern Pennsylvania Commission MPO (Indiana County portion of the
Area), in Tons per Summer Day (tpd)

Year	VOC	NOx

2009 	3.06	4.85

2018	1.92	2.40



The Clearfield/Indiana 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 Clearfield/Indiana 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:   		    				William T. Wisniewski,                               
 							            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
Clearfield/Indiana Area: Clearfield and Indiana Counties 	06/14/07,

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 Clearfield and
Indiana, PA, Clearfield County, Indiana County, to read as follows:

§81.339                    Pennsylvania

*          *          *          *          *

Pennsylvania – Ozone (8-Hour Standard)

Designated Area	Designationa	Category/Classification

	Date1	Type	Date1	Type

*           *           *           *           *           *          
*

Clearfield and Indiana, PA:  Clearfield County

Indiana County

Northampton 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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