[Federal Register Volume 86, Number 109 (Wednesday, June 9, 2021)]
[Rules and Regulations]
[Pages 30543-30545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11925]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0321; FRL-10023-81-Region 3]


Air Plan Approval; Pennsylvania; 1997 8-Hour Ozone National 
Ambient Air Quality Standards Second Maintenance Plan for the Tioga 
County Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the Commonwealth of 
Pennsylvania. The revision pertains to the Commonwealth's plan, 
submitted by the Pennsylvania Department of Environmental Protection 
(PADEP), for maintaining the 1997 8-hour ozone national ambient air 
quality standard (NAAQS) (referred to as the ``1997 ozone NAAQS'') in 
the Tioga County, Pennsylvania area (Tioga County Area). EPA is 
approving these revisions to the Pennsylvania SIP in accordance with 
the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on July 9, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2020-0321. All documents in the docket are listed on 
the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., 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 through 
https://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Adam Yarina, Planning & Implementation 
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. 
The telephone number is (215) 814-2108. Mr. Yarina can also be reached 
via electronic mail at Yarina.Adam@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 8, 2021 (86 FR 8569), EPA published a notice of 
proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the 
NPRM, EPA proposed approval of Pennsylvania's plan for maintaining the 
1997 ozone NAAQS in the Tioga County Area through July 6, 2027, in 
accordance with CAA section 175A. The formal SIP revision was submitted 
by PADEP on March 10, 2020.

II. Summary of SIP Revision and EPA Analysis

    On July 6, 2007 (72 FR 36892, effective same day), EPA approved a 
redesignation request and maintenance plan from PADEP for the Tioga 
County Area. In accordance with CAA section 175A(b), at the end of the 
eighth year after the effective date of the redesignation, the state 
must also submit a second maintenance plan to ensure ongoing 
maintenance of the standard for an additional 10 years, and in South 
Coast Air Quality Management District v. EPA,\1\ the D.C. Circuit held 
that this requirement cannot be waived for areas--like the Tioga County 
Area--that had been redesignated to attainment for the 1997 8-hour 
ozone NAAQS prior to revocation and that were designated attainment for 
the 2008 ozone NAAQS. CAA section 175A sets forth the criteria for 
adequate maintenance plans. In addition, EPA has published longstanding 
guidance that provides further insight on the content of an approvable 
maintenance plan, explaining that a maintenance plan should address 
five elements: (1) An attainment emissions inventory; (2) a maintenance 
demonstration; (3) a commitment for continued air quality monitoring; 
(4) a process for verification of continued attainment; and (5) a 
contingency plan.\2\ PADEP's March 10, 2020 submittal fulfills 
Pennsylvania's obligation to submit a second maintenance plan and 
addresses each of the five necessary elements.
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    \1\ 882 F.3d 1138 (D.C. Cir. 2018).
    \2\ ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (Calcagni Memo).
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    As discussed in the February 8, 2021 NPRM, EPA allows the submittal 
of a limited maintenance plan (LMP) to meet the statutory requirement 
that the area will maintain for the statutory period. Qualifying areas 
may meet the maintenance demonstration by showing that the area's 
design value \3\ is well below the NAAQS and that the historical 
stability of the area's air quality levels indicates that the area is 
unlikely to violate the NAAQS in the future. EPA evaluated PADEP's 
March 10, 2020 submittal for consistency with all applicable EPA 
guidance and CAA requirements. EPA found that the submittal met CAA 
section 175A and all CAA requirements and proposed approval of the LMP 
for the Tioga County Area as a revision to the Pennsylvania SIP.
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    \3\ The ozone design value for a monitoring site is the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations. The design value for an ozone nonattainment 
area is the highest design value of any monitoring site in the area.
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    Other specific requirements of PADEP's March 10, 2020 submittal and 
the rationale for EPA's proposed action are explained in the NPRM and 
will not be restated here.

III. EPA's Response to Comments Received

    EPA received comments on the February 8, 2021 NPRM from two 
commenters. All comments received are in the docket for this rulemaking 
action. A summary of the comments and EPA's responses are provided 
herein.
    The first commenter asserts that EPA cannot approve this plan 
because air quality levels were not at or below 85% of the NAAQS, and 
that one of EPA's methods for demonstrating continued future 
maintenance of the NAAQS is flawed.
    Comment 1: The commenter asserts that EPA cannot approve this plan 
``because the air quality has not been below 85% of the NAAQS for the 
time period EPA claims.'' The commenter claims that the following 
statement in EPA's proposed approval of the limited maintenance plan is 
incorrect: ``The Tioga County Area has maintained air quality levels 
below the 1997 ozone NAAQS since the Area first attained the NAAQS in 
2006, and maintained air quality levels at or below 85% of the NAAQS 
since 2009.'' The commenter claims that this statement is refuted by 
EPA's own data, which shows the air quality was at 0.071 for the years 
2010-2012.

[[Page 30544]]

    Response 1: The cited statement from the proposal is factually 
accurate, and EPA does not agree with the commenter that it is 
unsupported by the air quality data, nor do we agree that the commenter 
has identified a valid basis for disapproval. As discussed in the 
February 8, 2021 NPRM, based on the rounding convention described in 40 
CFR part 50, appendix I, the 1997 ozone NAAQS is attained if the design 
value is 0.084 parts per million (ppm) or below (see 86 FR 8571); 85% 
of this standard would be a design value of 0.071 ppm. The data 
therefore supports EPA's statement in the NPRM that the Tioga County 
Area has maintained air quality levels below the 1997 ozone NAAQS since 
the Area first attained the NAAQS in 2006, and maintained air quality 
levels at or below 85% of the NAAQS since 2009. It is worth noting that 
even if the commenter's assertion were correct, the Area would have 
been below 85% of the standard since 2012 and the Area's LMP would 
still be approvable consistent with EPA's long-standing guidance.\4\
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    \4\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards (OAQPS), dated November 16, 1994; 
``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, OAQPS, dated October 6, 
1995; and ``Limited Maintenance Plan Option for Moderate 
PM10 Nonattainment Areas'' from Lydia Wegman, OAQPS, 
dated August 9, 2001.
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    Comment 2: The commenter also asserts that one of EPA's methods for 
demonstrating continued future maintenance of the standard--
specifically, the method that adds the greatest recent design value 
increase to the current design value--is ``arbitrary and has no basis 
in scientific fact.'' The commenter goes on to assert that ``not only 
is the highest increase during a certain point in time in the past not 
indicative of potential future conditions, but EPA arbitrarily chooses 
a time period with seemingly no bounds . . . EPA's use of this 
arbitrary formula to determine whether an area will not violate the 
NAAQS at some point in the future is based in science hope, not science 
fact and EPA should re-evaluate its use in approving the Tioga County 
Limited Maintenance Plan.''
    Response 2: As discussed in the February 8, 2021 NPRM, states may 
demonstrate continued maintenance of the NAAQS by showing stable or 
improving air quality trends in one or more ways (see 86 FR 8571). The 
method that the commenter refers to was relied on by EPA as additional 
support that the Tioga County LMP demonstrates continued maintenance of 
the 1997 ozone NAAQS. Consistent with EPA's long-standing guidance, the 
primary evidence EPA relied upon in determining that the Area would 
continue to maintain the standard throughout the ten years of the LMP 
was the clear downward trend of ozone levels in the Tioga County Area 
since 2006, including levels at or below 85% of the NAAQS since 
2009.\5\ Additionally, EPA notes the Tioga County Area is currently in 
attainment for the more-stringent 2008 and 2015 ozone NAAQS, which have 
design values of 0.075 ppm and 0.070 ppm, respectively; and future year 
design value projections from EPA show that the design value for the 
Tioga County Area is expected to be 0.0573 ppm (see 86 FR 8572). The 
data cited in the comment, taken together with these other factors, 
strengthen EPA's considered judgement that the plan adequately 
demonstrates continued maintenance of the 1997 ozone NAAQS.
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    \5\ Id.
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    Comment 3: The second commenter asserts that EPA cannot approve the 
Tioga County Area LMP because ``it would do something that is not 
authorized under the rules.'' The commenter then advances various 
policy and legal theories that do not appear to be related to 
hypothetical future litigation in federal court regarding the legality 
of the Tioga LMP. The comment makes assertions about what factors the 
court will consider in resolving this hypothetical action and 
speculates how the court will rule against EPA.
    Response 3: EPA has no knowledge of any lawsuit involving the Tioga 
LMP in federal court and has not reason to believe any such litigation 
exists. Because the comment is addressed to hypothetical litigation, 
also because EPA's authority to approve this plan is well-established 
in the NPRM, it is EPA's judgment it has no obligation to respond to 
commenter's speculation as to the actions that EPA will need to take to 
address the ruling of a hypothetical lawsuit.

IV. Final Action

    EPA is approving PADEP's second maintenance plan for the Tioga 
County Area for the 1997 ozone NAAQS as a revision to the Pennsylvania 
SIP.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices if 
they meet the criteria of the CAA. Accordingly, this action merely 
approves state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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

[[Page 30545]]

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 action 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. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action 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 August 9, 2021. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 PADEP's second maintenance plan for the 
Tioga County Area for the 1997 ozone NAAQS, may not be challenged later 
in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: May 28, 2021.
Diana Esher,
Acting Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 
the entry ``Second Maintenance Plan for the State College 1997 8-Hour 
Ozone Nonattainment Area'' at the end of the table to read as follows:


Sec.  52.2020   Identification of plan.

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

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  Name of non-regulatory SIP                                      State                            Additional
           revision              Applicable geographic area  submittal date  EPA approval date     explanation
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                                                  * * * * * * *
Second Maintenance Plan for     Tioga County Area..........         3/10/20  6/9/21, [insert    The Tioga County
 the State College 1997 8-Hour                                                Federal Register   area consists
 Ozone Nonattainment Area.                                                    citation].         solely of Tioga
                                                                                                 County.
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[FR Doc. 2021-11925 Filed 6-8-21; 8:45 am]
BILLING CODE 6560-50-P


