[Federal Register Volume 72, Number 142 (Wednesday, July 25, 2007)]
[Proposed Rules]
[Pages 40776-40788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14360]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2007-0476; FRL-8445-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a redesignation request and State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Pennsylvania. The Pennsylvania Department of Environmental Protection 
(PADEP) is requesting that the Erie ozone nonattainment area (``Erie 
Area'' or ``Area'') be redesignated as attainment for the 8-hour ozone 
national ambient air quality standard (NAAQS). The Erie Area is 
comprised of Erie County, Pennsylvania. EPA is proposing

[[Page 40777]]

to approve the ozone redesignation request for the Erie Area. In 
conjunction with its redesignation request, the Commonwealth submitted 
a SIP revision consisting of 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. EPA is proposing to make a 
determination that the Erie Area has attained the 8-hour ozone NAAQS, 
based upon three years of complete, quality-assured ambient air quality 
monitoring data for 2004-2006. EPA's proposed approval of the 8-hour 
ozone redesignation request is based on its determination that the Erie 
Area has met the criteria for redesignation to attainment specified in 
the Clean Air Act (CAA). In addition, the Commonwealth of Pennsylvania 
has also submitted a 2002 base-year inventory for the Erie Area, and 
EPA is proposing to approve that inventory for the Erie Area as a SIP 
revision. EPA is also providing information on the status of its 
adequacy determination for the motor vehicle emission budgets (MVEBs) 
that are identified in the maintenance plan for the Erie Area for 
purposes of transportation conformity, and is also proposing to approve 
those MVEBs. EPA is proposing approval of the redesignation request and 
of the maintenance plan and 2002 base-year inventory SIP revisions in 
accordance with the requirements of the CAA.

DATES: Written comments must be received on or before August 24, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0476 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2007-0476, Christopher Cripps, Acting Chief, 
Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2007-0476. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in www.regulations.gov or 
in hard copy 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 Environmental 
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 [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What Are the Actions EPA Is Proposing To Take?
II. What Is the Background for These Proposed Actions?
III. What Are the Criteria for Redesignation to Attainment?
IV. Why Is EPA Taking These Actions?
V. What Would Be the Effect of These Actions?
VI. What Is EPA's Analysis of the Commonwealth's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and 
Identified in the Maintenance Plan for the Erie Area Adequate and 
Approvable?
VIII. Proposed Actions
IX. Statutory and Executive Order Reviews

I. What Are the Actions EPA Is Proposing To Take?

    On April 24, 2007, the PADEP formally submitted a request to 
redesignate the Erie Area from nonattainment to attainment of the 8-
hour NAAQS for ozone. Concurrently, Pennsylvania submitted a 
maintenance plan for the Erie Area as a SIP revision to ensure 
continued attainment in the Area over the next 11 years. PADEP also 
submitted a 2002 base-year inventory for the Erie Area as a SIP 
revision. The Erie Area is comprised of Erie County. It is currently 
designated a basic 8-hour ozone nonattainment area. EPA is proposing to 
determine that the Erie Area has attained the 8-hour ozone NAAQS and 
that it has met the requirements for redesignation pursuant to section 
107(d)(3)(E) of the CAA. EPA is, therefore, proposing to approve the 
redesignation request to change the designation of the Erie Area from 
nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also 
proposing to approve the Erie maintenance plan as a SIP revision for 
the Area (such approval being one of the CAA criteria for redesignation 
to attainment status). The maintenance plan is designed to ensure 
continued attainment in the Erie Area for the next 11 years. EPA is 
also proposing to approve the 2002 base-year inventory for the Erie 
Area as a SIP revision. Additionally, EPA is announcing its action on 
the adequacy process for the MVEBs identified in the Erie maintenance 
plan, and proposing to approve the MVEBs identified for volatile 
organic compounds (VOCs) and nitrogen oxides (NOX) for the 
Erie Area for transportation conformity purposes.

II. What Is the Background for These Proposed Actions?

A. General

    Ground-level ozone is not emitted directly by sources. Rather, 
emissions of NOX and VOC react in the presence of sunlight 
to form ground-level ozone. The air pollutants NOX and VOC 
are referred to as precursors of ozone. The CAA establishes a process 
for air quality

[[Page 40778]]

management through the attainment and maintenance of the NAAQS.
    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm). This new standard is more stringent 
than the previous 1-hour standard. EPA designated, as nonattainment, 
any area violating the 8-hour ozone NAAQS based on the air quality data 
for the three years of 2001-2003. These were the most recent three 
years of data at the time EPA designated 8-hour areas. The Erie Area 
was designated a basic 8-hour ozone nonattainment area in a Federal 
Register notice signed on April 15, 2004 and published on April 30, 
2004 (69 FR 23857), based on its exceedance of the 8-hour health-based 
standard for ozone during the years 2001-2003.
    On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to 
revoke the 1-hour ozone NAAQS in the Erie Area (as well as most other 
areas of the country), effective June 15, 2005. See, 40 CFR 50.9(b); 69 
FR at 23996 (April 30, 2004); 70 FR 44470 (August 3, 2005).
    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 23951, April 30, 2004). South 
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 
2006) (hereafter ``South Coast''). 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 DC 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 
four 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; (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; 
and (4) certain transportation conformity requirements for certain 
types of federal actions. The June 8 decision clarified that the 
Court's reference to conformity requirements was limited to requiring 
the continued use of 1-hour motor vehicle emissions budgets until 8-
hour budgets were available for 8-hour conformity determinations. 
Elsewhere in this document, mainly in section VI.B. ``The Erie Area Has 
Met All Applicable Requirements Under Section 110 and Part D of the CAA 
and Has a Fully Approved SIP Under Section 110(k) of the CAA,'' EPA 
discusses its rationale why the decision in South Coast is not an 
impediment to redesignating the Erie Area to attainment of the 8-hour 
ozone NAAQS.
    The CAA, title I, Part D, contains two sets of provisions--subpart 
1 and subpart 2--that address planning and control requirements for 
nonattainment areas. Subpart 1 (which EPA refers to as ``basic'' 
nonattainment) contains general, less prescriptive requirements for 
nonattainment areas for any pollutant--including ozone--governed by a 
NAAQS. Subpart 2 (which EPA refers to as ``classified'' nonattainment) 
provides more specific requirements for ozone nonattainment areas. In 
2004, the Erie Area was classified a basic 8-hour ozone nonattainment 
area based on air quality monitoring data from 2001-2003. Therefore, 
the Erie Area is subject to the requirements of subpart 1 of Part D.
    Under 40 CFR part 50, the 8-hour ozone standard is attained when 
the 3-year average of the annual fourth-highest daily maximum 8-hour 
average ambient air quality ozone concentrations is less than or equal 
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR 
23857 (April 30, 2004) for further information. Ambient air quality 
monitoring data for the 3-year period must meet data completeness 
requirements. The data completeness requirements are met when the 
average percent of days with valid ambient monitoring data is greater 
than 90 percent, and no single year has less than 75 percent data 
completeness as determined in Appendix I of 40 CFR part 50. The ozone 
monitoring data indicates that the Erie Area has a design value of 
0.079 ppm for the 3-year period of 2004-2006, using complete, quality-
assured data. Therefore, the ambient ozone data for the Erie Area 
indicates no violations of the 8-hour ozone standard.

B. The Erie Area

    The Erie Area consists of Erie County, Pennsylvania. Prior to its 
designation as an 8-hour ozone nonattainment area, the Erie Area was a 
marginal 1-hour ozone nonattainment Area, and therefore, was subject to 
requirements for marginal nonattainment areas pursuant to section 
182(a) of the CAA. See 56 FR 56694 (November 6, 1991). EPA determined 
that the Erie Area has attained the 1-hour ozone NAAQS by the November 
15, 1993 attainment date (60 FR 3349, January 17, 1995).
    On April 24, 2007, the PADEP requested that the Erie Area be 
redesignated to attainment for the 8-hour ozone standard. The 
redesignation request included three years of complete, quality-assured 
data for the period of 2004-2006, indicating that the 8-hour NAAQS for 
ozone had been achieved in the Erie Area. The data satisfies the CAA 
requirements that the 3-year average of the annual fourth-highest daily 
maximum 8-hour average ozone concentration (commonly referred to as the 
area's design value), must be less than or equal to 0.08 ppm (i.e., 
0.084 ppm when rounding is considered). Under the CAA, a nonattainment 
area may be redesignated if sufficient complete, quality-assured data 
is available to determine that the area attained the standard and the 
area meets the other CAA redesignation requirements set forth in 
section 107(d)(3)(E).

III. What Are the Criteria for Redesignation to Attainment?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA, 
allows for redesignation, providing that:
    (1) EPA determines that the area has attained the applicable NAAQS;
    (2) EPA has fully approved the applicable implementation plan for 
the area under section 110(k);
    (3) EPA determines that the improvement in air quality is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the applicable SIP and applicable Federal air 
pollutant control regulations and other permanent and enforceable 
reductions;
    (4) EPA has fully approved a maintenance plan for the area as 
meeting the requirements of section 175A; and

[[Page 40779]]

    (5) The State containing such area has met all requirements 
applicable to the area under section 110 and Part D.
    EPA provided guidance on redesignations in the General Preamble for 
the Implementation of Title I of the CAA Amendments of 1990, on April 
16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 
1992 (57 FR 18070). EPA has provided further guidance on processing 
redesignation requests in the following documents:
     ``Ozone and Carbon Monoxide Design Value Calculations,'' 
Memorandum from Bill Laxton, June, 18, 1990;
     ``Maintenance Plans for Redesignation of Ozone and Carbon 
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief, 
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
     ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
     ``Procedures for Processing Requests to Redesignate Areas 
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992;
     ``State Implementation Plan (SIP) Actions Submitted in 
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John 
Calcagni Director, Air Quality Management Division, October 28, 1992;
     ``Technical Support Documents (TSDs) for Redesignation 
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from 
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 
1993;
     ``State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on 
or after November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 17, 
1993;
     Memorandum from D. Kent Berry, Acting Director, Air 
Quality Management Division, to Air Division Directors, Regions 1-10, 
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and 
CO Nonattainment Areas,'' dated November 30, 1993;
     ``Part D New Source Review (Part D NSR) Requirements for 
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994; and
     ``Reasonable Further Progress, Attainment Demonstration, 
and Related Requirements for Ozone Nonattainment Areas Meeting the 
Ozone National Ambient Air Quality Standard,'' Memorandum from John S. 
Seitz, Director, Office of Air Quality Planning and Standards, May 10, 
1995.

IV. Why Is EPA Taking These Actions?

    On April 24, 2007, the PADEP requested redesignation of the Erie 
Area to attainment for the 8-hour ozone standard. On April 24, 2007, 
PADEP submitted a maintenance plan for the Erie Area as a SIP revision, 
to ensure continued attainment of the 8-hour ozone NAAQS over the next 
11 years, until 2018. PADEP also submitted a 2002 base-year inventory 
concurrently with its maintenance plan as a SIP revision. EPA has 
determined that the Erie Area has attained the 8-hour ozone standard 
and has met the requirements for redesignation set forth in section 
107(d)(3)(E).

V. What Would Be the Effect of These Actions?

    Approval of the redesignation request would change the official 
designation of the Erie Area from nonattainment to attainment for the 
8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate 
into the Pennsylvania SIP a 2002 base-year inventory and a maintenance 
plan ensuring continued attainment of the 8-hour ozone NAAQS in the 
Erie Area for the next 11 years, until 2018. The maintenance plan 
includes contingency measures to remedy any future violations of the 8-
hour NAAQS (should they occur), and identifies the NOX and 
VOC MVEBs for transportation conformity purposes for the years 2009 and 
2018. These MVEBs are displayed in the following table:

Table 1.--Erie County Motor Vehicle Emissions Budgets in Tons per Summer
                               Day (tpsd)
------------------------------------------------------------------------
                     Year                           VOC          NOX
------------------------------------------------------------------------
2009..........................................          6.5         15.6
2018..........................................          4.0          6.7
------------------------------------------------------------------------

VI. What Is EPA's Analysis of the Commonwealth's Request?

    EPA is proposing to determine that the Erie Area has attained the 
8-hour ozone standard, and that all other redesignation criteria have 
been met. The following is a description of how the PADEP's April 24, 
2007 submittal satisfies the requirements of section 107(d)(3)(E) of 
the CAA.

A. The Erie Area Has Attained the 8-Hour NAAQS

    EPA is proposing to determine that the Erie Area has attained the 
8-hour ozone NAAQS. For ozone, an area may be considered to be 
attaining the 8-hour ozone NAAQS if there are no violations, as 
determined in accordance with 40 CFR 50.10 and Appendix I of Part 50, 
based on three complete, consecutive calendar years of quality-assured 
air quality monitoring data. To attain this standard, the design value, 
which is the 3-year average of the fourth-highest daily maximum 8-hour 
average ozone concentrations measured at each monitor, within the area, 
over each year must not exceed the ozone standard of 0.08 ppm. Based on 
the rounding convention described in 40 CFR part 50, Appendix I, the 
standard is attained if the design value is 0.084 ppm or below. The 
data must be collected and quality-assured in accordance with 40 CFR 
part 58, and recorded in the Air Quality System (AQS). The monitors 
generally should have remained at the same location for the duration of 
the monitoring period required for demonstrating attainment.
    In the Erie Area, there is one ozone monitor, located in Erie 
County that measures air quality with respect to ozone. As part of its 
redesignation request, Pennsylvania referenced ozone monitoring data 
for the years 2004-2006 for the Erie Area. This data has been quality 
assured and is recorded in the AQS. The PADEP uses the AQS as the 
permanent database to maintain its data and quality assures the data 
transfers and content for accuracy. The fourth-high 8-hour daily 
maximum concentrations, along with the three-year average are 
summarized in Table 2.

[[Page 40780]]



  Table 2.--Erie Area Fourth Highest 8-Hour Average Values Erie County
                       Monitor/AIRS ID 42-049-0003
------------------------------------------------------------------------
                                                            Annual 4th
                          Year                                highest
                                                           reading (ppm)
------------------------------------------------------------------------
2004....................................................           0.074
2005....................................................           0.086
2006....................................................          0.077
------------------------------------------------------------------------
The average for the 3-year period 2004-2006 is 0.079 ppm.

    The air quality data for 2004-2006 show that the Erie Area has 
attained the standard with a design value of 0.079 ppm. The data 
collected at the Erie Area monitor satisfies the CAA requirement that 
the 3-year average of the annual fourth-highest daily maximum 8-hour 
average ozone concentration is less than or equal to 0.08 ppm. The 
PADEP's request for redesignation for the Erie Area indicates that the 
data is complete and was quality assured in accordance with 40 CFR part 
58. In addition, as discussed below with respect to the maintenance 
plan, PADEP has committed to continue monitoring in accordance with 40 
CFR part 58. In summary, EPA has determined that the data submitted by 
Pennsylvania and data taken from AQS indicate that the Area has 
attained the 8-hour ozone NAAQS.

B. The Erie Area Has Met All Applicable Requirements Under Section 110 
and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) 
of the CAA

    EPA has determined that the Erie Area has met all SIP requirements 
applicable for purposes of this redesignation under section 110 of the 
CAA (General SIP Requirements) and that it meets all applicable SIP 
requirements under Part D of Title I of the CAA, in accordance with 
section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP 
is fully approved with respect to all requirements applicable for 
purposes of redesignation in accordance with section 107(d)(3)(E)(ii). 
In making these proposed determinations, EPA ascertained which 
requirements are applicable to the Erie Area and determined that the 
applicable portions of the SIP meeting these requirements are fully 
approved under section 110(k) of the CAA. We note that SIPs must be 
fully approved only with respect to applicable requirements.
    The September 4, 1992 Calcagni memorandum (``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992) describes EPA's interpretation of section 
107(d)(3)(E) with respect to the timing of applicable requirements. 
Under this interpretation, to qualify for redesignation, States 
requesting redesignation to attainment must meet only the relevant CAA 
requirements that came due prior to the submittal of a complete 
redesignation request. See also, Michael Shapiro memorandum, September 
17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995) (redesignation 
of Detroit-Ann Arbor). Applicable requirements of the CAA that come due 
subsequent to the area's submittal of a complete redesignation request 
remain applicable until a redesignation is approved, but are not 
required as a prerequisite to redesignation. Section 175A(c) of the 
CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also, 68 FR 
at 25424, 25427 (May 12, 2003) (redesignation of St. Louis).
    This section sets forth EPA's views on the potential effect of the 
Court's rulings on this proposed redesignation action. For the reasons 
set forth below, 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 proposing or 
ultimately 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.
1. Section 110 General SIP Requirements
    Section 110(a)(2) of Title I of the CAA delineates the general 
requirements for a SIP, which includes enforceable emissions 
limitations and other control measures, means, or techniques, 
provisions for the establishment and operation of appropriate devices 
necessary to collect data on ambient air quality, and programs to 
enforce the limitations. The general SIP elements and requirements set 
forth in section 110(a)(2) include, but are not limited to the 
following:
     Submittal of a SIP that has been adopted by the State 
after reasonable public notice and hearing;
     Provisions for establishment and operation of appropriate 
procedures needed to monitor ambient air quality;
     Implementation of a source permit program; provisions for 
the implementation of part C requirements (Prevention of Significant 
Deterioration (PSD));
     Provisions for the implementation of Part D requirements 
for New Source Review (NSR) permit programs;
     Provisions for air pollution modeling; and
     Provisions for public and local agency participation in 
planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to 
prevent sources in a state from significantly contributing to air 
quality problems in another State. To implement this provision, EPA has 
required certain states to establish programs to address transport of 
air pollutants in accordance with the NOX SIP Call, October 
27, 1998 (63 FR 57356), amendments to the NOX SIP Call, May 
14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean 
Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the 
section 110(a)(2)(D) requirements for a State are not linked with a 
particular nonattainment area's designation and classification in that 
State. EPA believes that the requirements linked with a particular 
nonattainment area's designation and classifications are the relevant 
measures to evaluate in reviewing a redesignation request. The 
transport SIP submittal requirements, where applicable, continue to 
apply to a state regardless of the designation of any one particular 
area in the State. Thus, we do not believe that these requirements are 
applicable requirements for purposes of redesignation.
    In addition, EPA believes that the other section 110 elements not 
connected with nonattainment plan submissions and not linked with an 
area's attainment status are not applicable requirements for purposes 
of redesignation. The Erie Area will still be subject to these 
requirements after it is redesignated. The section 110 and Part D 
requirements which are linked with a particular area's designation and 
classification are the relevant measures to evaluate in reviewing a 
redesignation request. This policy is consistent with EPA's existing 
policy on applicability of conformity (i.e., for redesignations) and 
oxygenated fuels requirement. See Reading, Pennsylvania, proposed and 
final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 
1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 
7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 
7, 1995). See also, the discussion on this issue in the Cincinnati 
redesignation (65 FR at 37890, June 19, 2000), and in the

[[Page 40781]]

Pittsburgh redesignation (66 FR at 53099, October 19, 2001). Similarly, 
with respect to the NOX SIP Call rules, EPA noted in its 
Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the 
NOX SIP Call rules are not ``an'' `applicable requirement' 
for purposes of section 110(1) because the NOX rules apply 
regardless of an area's attainment or nonattainment status for the 8-
hour (or the 1-hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).
    EPA believes that section 110 elements not linked to the area's 
nonattainment status are not applicable for purposes of redesignation. 
As we explain later in this notice, no Part D requirements applicable 
for purposes of redesignation under the 8-hour standard became due for 
the Erie Area prior to submission of the redesignation request
 2. Part D Nonattainment Requirements Under the 8-Hour Standard
    Pursuant to an April 30, 2004, final rule (69 FR 23951), the Erie 
Area was designated a basic nonattainment area under subpart 1 for the 
8-hour ozone standard. Sections 172-176 of the CAA, found in subpart 1 
of Part D, set forth the basic nonattainment requirements applicable to 
all nonattainment areas. Section 182 of the CAA, found in subpart 2 of 
Part D, establishes additional specific requirements depending on the 
area's nonattainment classification.
    With respect to the 8-hour standard, the court's ruling rejected 
EPA's reasons for classifying areas under subpart 1 for the 8-hour 
standard, and remanded that matter to the Agency. Consequently, it is 
possible that this area could, during a remand to EPA, be reclassified 
under subpart 2. Although any future decision by EPA to classify this 
area under subpart 2 might trigger additional future requirements for 
the area, EPA believes that this does not mean that redesignation of 
the area cannot now go forward. This belief is based upon (1) EPA's 
longstanding policy of evaluating redesignation requests in accordance 
with the requirements due at the time the request is submitted; and, 
(2) consideration of the inequity of applying retroactively any 
requirements that might in the future be applied.
    First, at the time the redesignation request was submitted, the 
Erie Area was classified under subpart 1 and was obligated to meet only 
subpart 1 requirements. Under EPA's longstanding interpretation of 
section 107(d)(3)(E) of the Clean Air Act, to qualify for 
redesignation, states requesting redesignation to attainment must meet 
only the relevant SIP requirements that came due prior to the submittal 
of a complete redesignation request. See September 4, 1992 Calcagni 
memorandum (``Procedures for Processing Requests to Redesignate Areas 
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division). See also, Michael Shapiro Memorandum, September 
17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995) (Redesignation 
of Detroit-Ann Arbor); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 
2004), which upheld this interpretation. See 68 FR 25418, 25424, 25427 
(May 12, 2003) (Redesignation of St. Louis).
    Moreover, it would be inequitable to retroactively apply any new 
SIP requirements that were not applicable at the time the request was 
submitted. The D.C. Circuit has recognized the inequity in such 
retroactive rulemaking, See, Sierra Club v. Whitman, 285 F. 3d 63 (D.C. 
Cir. 2002), in which the DC Circuit upheld a District Court's ruling 
refusing to make retroactive an EPA determination of nonattainment that 
was past the statutory due date. Such a determination would have 
resulted in the imposition of additional requirements on the area. The 
Court stated: ``Although EPA failed to make the nonattainment 
determination within the statutory time frame, Sierra Club's proposed 
solution only makes the situation worse. Retroactive relief would 
likely impose large costs on the States, which would face fines and 
suits for not implementing air pollution prevention plans in 1997, even 
though they were not on notice at the time.'' Id. at 68. Similarly here 
it would be unfair to penalize the area by applying to it for purposes 
of redesignation additional SIP requirements under subpart 2 that were 
not in effect at the time it submitted its redesignation request.
    With respect to 8-hour subpart 2 requirements, if the Erie Area 
initially had been classified under subpart 2, the first two Part D 
subpart 2 requirements applicable to the Erie Area under section 182(a) 
of the CAA would be: a base-year inventory requirement pursuant to 
section 182(a)(1) of the CAA, and, the emissions statement requirement 
pursuant to section 182(a)(3)(B).
    As stated previously, these requirements are not yet due for 
purposes of redesignation of the Erie Area, but nevertheless, 
Pennsylvania already has in its approved SIP, an emissions statement 
rule for the 1-hour standard that covers all portions of the designated 
8-hour nonattainment area and, that satisfies the emissions statement 
requirement for the 8-hour standard. See, 25 Pa. Code 135.21(a)(1), 
codified at 40 CFR 52.2020; 60 FR 2881, January 12, 1995. With respect 
to the base-year inventory requirement, in this notice of proposed 
rulemaking, EPA is proposing to approve the 2002 base-year inventory 
for the Erie Area, which was submitted on April 24, 2007, concurrently 
with its maintenance plan, into the Pennsylvania SIP. EPA is proposing 
to approve the 2002 base-year inventory as fulfilling the requirements, 
if necessary, of both section 182(a)(1) and section 172(c)(3) of the 
CAA. A detailed evaluation of Pennsylvania's 2002 base-year inventory 
for the Erie Area can be found in a Technical Support Document (TSD) 
prepared by EPA for this rulemaking. EPA has determined that the 
emission inventory and emissions statement requirements for the Erie 
Area have been satisfied.
    In addition to the fact that Part D requirements applicable for 
purposes of redesignation did not become due prior to submission of the 
redesignation request, EPA believes that the general conformity and NSR 
requirements do not require approval prior to redesignation.
    With respect to section 176, Conformity Requirements, section 
176(c) of the CAA requires states to establish criteria and procedures 
to ensure that Federally supported or funded projects conform to the 
air quality planning goals in the applicable SIP. The requirement to 
determine conformity applies to transportation plans, programs, and 
projects developed, funded or approved under Title 23 U.S.C. and the 
Federal Transit Act (``transportation conformity'') as well as to all 
other Federally supported or funded projects (``general conformity''). 
State conformity revisions must be consistent with Federal conformity 
regulations relating to consultation, enforcement and enforceability 
that the CAA required the EPA to promulgate. EPA believes it is 
reasonable to interpret the conformity SIP requirements as not applying 
for purposes of evaluating the redesignation request under section 
107(d) since State conformity rules are still required after 
redesignation and Federal conformity rules apply where State rules have 
not been approved. See, Wall v. EPA, 265 F. 3d 426, 438-440 (6th Cir. 
2001), upholding this interpretation. See also, 60 FR 62748 (December 
7, 1995).
    In the case of the Erie Area, EPA has also determined that before 
being redesignated, the Erie Area need not comply with the requirement 
that a NSR program be approved prior to redesignation. EPA has 
determined that areas being redesignated need not comply with the 
requirement that a NSR

[[Page 40782]]

program be approved prior to redesignation, provided that the area 
demonstrates maintenance of the standard without Part D NSR in effect. 
The rationale for this position is described in a memorandum from Mary 
Nichols, Assistant Administrator for Air and Radiation, dated October 
14, 1994, entitled, ``Part D NSR Requirements or Areas Requesting 
Redesignation to Attainment.'' Normally, State's Prevention of 
Significant Deterioration (PSD) program will become effective in the 
area immediately upon redesignation to attainment. See the more 
detailed explanations in the following redesignation rulemakings: 
Detroit, MI (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-
Lorrain, OH (61 FR 20458, 20469-20470, May 7, 1996); Louisville, KY (66 
FR 53665, 53669, October 23, 2001); Grand Rapids, MI (61 FR 31831, 
31836-31837, June 21, 1996). In the case of the Erie Area the Chapter 
127 Part D NSR regulations in the Pennsylvania SIP (codified at 40 CFR 
52.2020(c)(1)) explicitly apply the requirements for NSR in section 184 
of the CAA to ozone attainment areas within the OTR. The OTR NSR 
requirements are more stringent than that required for a marginal or 
basic ozone nonattainment area. On October 19, 2001 (66 FR 53094), EPA 
fully approved Pennsylvania's NSR SIP revision consisting of 
Pennsylvania's Chapter 127 Part D NSR regulations that cover the Erie 
Area.
    EPA has also interpreted the section 184 OTR requirements, 
including the NSR program, as not being applicable for purposes of 
redesignation. The rationale for this is based on two considerations. 
First, the requirement to submit SIP revisions for the section 184 
requirements continues to apply to areas in the OTR after redesignation 
to attainment. Therefore, the State remains obligated to have NSR, as 
well as RACT, and Vehicle Inspection and Maintenance programs even 
after redesignation. Second, the section 184 control measures are 
region-wide requirements and do not apply to the Erie Area by virtue of 
the Area's designation and classification. See 61 FR 53174, 53175-53176 
(October 10, 1996) and 62 FR 24826, 24830-24832 (May 7, 1997).
3. Part D Nonattainment Area Requirements Under the 1-Hour Standard
    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 the Area must meet the federal 
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 set forth in more detail below, the area 
must also address four additional anti-backsliding provisions 
identified by the Court in its decisions.
    The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-
hour ozone NAAQS requirements that continue to apply after revocation 
of the 1-hour ozone NAAQS to former 1-hour ozone nonattainment areas. 
Section 51.905(a)(1)(i) provides that:
    The area remains subject to the obligation to adopt and implement 
the applicable requirements as defined in Sec.  51.900(f), except as 
provided in paragraph (a)(1)(iii) of paragraph (b) of this section. * * 
*
    Section 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005), 
states that: Applicable requirements means for an area the following 
requirements to the extent such requirements applied to the area for 
the area's classification under section 181(a)(1) of the CAA for the 1-
hour NAAQS at the time of designation for the 8-hour NAAQS.
    (1) Reasonably available control technology (RACT).
    (2) Inspection and maintenance programs (I/M).
    (3) Major source applicability cut-offs for purposes of RACT.
    (4) Rate of Progress (ROP) reductions.
    (5) Stage II vapor recovery.
    (6) Clean fuels fleet program under section 183(c)(4) of the CAA.
    (7) Clean fuels for boilers under section 182(e)(3) of the CAA.
    (8) Transportation Control Measures (TCMs) during heavy traffic 
hours as provided section 182(e)(4) of the CAA.
    (9) Enhanced (ambient) monitoring under section 182(c)(1) of the 
CAA.
    (10) Transportation control measures (TCMs) under section 182(c)(5) 
of the CAA.
    (11) Vehicle miles traveled (VMT) provisions of section 182(d)(1) 
of the CAA.
    (12) NOX requirements under section 182(f) of the CAA.
    (13) Attainment demonstration or alternative as provided under 
section 51.905(a)(1)(ii).
    Pursuant to 40 CFR 51.905(c), the Area is subject to the 
obligations set forth in 51.905(a) and 51.900(f).
    Prior to its designation as an 8-hour ozone nonattainment area, the 
Erie Area was designated a marginal nonattainment area for the 1-hour 
standard. With respect to the 1-hour standard, the applicable 
requirements under the anti-backsliding provisions at 40 CFR 
51.905(a)(1) for the Erie Area are limited to RACT and I/M programs 
specified in section 182(a) of the CAA and are discussed in the 
following paragraphs:
    Section 182(a)(2)(A) required SIP revisions to correct or amend 
RACT for sources in marginal areas, such as the Erie Area, that were 
subject to control technique guidelines (CTGs) issued before November 
15, 1990 pursuant to CAA section 108. On December 22, 1994, EPA fully 
approved into the Pennsylvania SIP all corrections required under 
section 182(a)(2)(A) of the CAA (59 FR 65971, December 22, 1994). EPA 
believes that this requirement applies only to marginal and higher 
classified areas under the 1-hour NAAQS pursuant to the 1990 amendments 
to the CAA; therefore, this is a one-time requirement. After an area 
has fulfilled the section 182(a)(2)(A) requirement for the 1-hour 
NAAQS, there is no requirement under the 8-hour NAAQS.
    Section 182(a)(2)(B) relates to the savings clause for vehicle 
inspection and maintenance (I/M). It requires marginal areas to adopt 
vehicle I/M programs. This provision was not applicable to the Erie 
Area because this area did not have and was not required to have an I/M 
program before November 15, 1990.
    In addition the Court held that EPA should have retained four 
additional measures in its anti-backsliding provisions: (1) 
Nonattainment area NSR; (2) Section 185 penalty fees; (3) contingency 
measures under section 172(c)(9) or 182(c)(9) of the Act; and (4) 1-
hour motor vehicle emission budgets that were yet not replaced by 8-
hour emissions budgets. These requirements are addressed below:
    With respect to NSR, EPA has determined that areas being 
redesignated need not have an approved nonattainment New Source Review 
program, for the same reasons discussed previously with respect to the 
applicable Part D requirement for the 8-hour standard.
    The section 185 penalty fee requirement applies only to severe and 
extreme nonattainment areas, and was never applicable in the Erie 1-
hour marginal nonattainment area.
    With respect to the requirement for submission of contingency 
measures for the 1-hour standard, section 182(a) does not require 
contingency measures for marginal areas.
    The conformity portion of the Court's ruling does not impact the 
redesignation request for the Erie Area except to the extent that the 
Court in its June 8 decision clarified that for those areas with 1-hour 
MVEBs, anti-backsliding

[[Page 40783]]

requires that those 1-hour budgets must be used for 8-hour conformity 
determinations until replaced by 8-hour budgets. There are no 
applicable 1-hour MVEBs for the Erie Area. (As discussed elsewhere in 
this document, EPA is proposing to approve 8-hour MVEBs for the Erie 
Area.) To meet this requirement, conformity determinations in such 
areas must 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.
    Thus EPA has concluded that the Erie Area has met all requirements 
applicable for redesignation under the 1-hour standard.
4. Transport Region Requirements
    All areas in the Ozone Transport Region (OTR), both attainment and 
nonattainment, are subject to additional control requirements under 
section 184 for the purpose of reducing interstate transport of 
emissions that may contribute to downwind ozone nonattainment. The 
section 184 requirements include reasonably available control 
technology (RACT), NSR, enhanced vehicle inspection and maintenance, 
and Stage II vapor recovery or a comparable measure.
    In the case of the Erie Area, which is located in the OTR, 
nonattainment NSR will continue to be applicable after redesignation. 
On October 19, 2001, EPA approved the 1-hour NSR SIP revision for the 
area. See 66 FR 53094 (October 19, 2001).
    EPA has also interpreted the section 184 OTR requirements, 
including NSR, as not being applicable for purposes of redesignation. 
Reading, PA Redesignation, 61 FR 53174, (October 10, 1996), 62 FR 24826 
(May 7, 1997). The rationale for this is based on two considerations. 
First, the requirement to submit SIP revisions for the section 184 
requirements continues to apply to areas in the OTR after redesignation 
to attainment. Therefore, the State remains obligated to have NSR, as 
well as RACT, and I/M even after redesignation. Second, the section 184 
control measures are region-wide requirements and do not apply to the 
area by virtue of the area's nonattainment designation and 
classification, and thus are properly considered not relevant to an 
action changing an area's designation. See 61 FR 53174, 53175-53176 
(October 10, 1996) and 62 FR 24826, 24830-24832 (May 7, 1997).
5. Erie Has a Fully Approved SIP for Purposes of Redesignation
    EPA has fully approved the Pennsylvania SIP for the purposes of 
this redesignation. EPA may rely on prior SIP approvals in approving a 
redesignation request. Calcagni Memo, p.3; Southwestern Pennsylvania 
Growth Alliance v. Browner, 144 F. 3d 984, 989-90 (6th Cir. 1998), Wall 
v. EPA, 265 F. 3d 426 (6th Cir. 2001), plus any additional measures it 
may approve in conjunction with a redesignation action. See, 68 FR at 
25425 (May 12, 2003) and citations therein.

C. The Air Quality Improvement in the Erie Area Is Due to Permanent and 
Enforceable Reductions in Emissions Resulting From Implementation of 
the SIP and Applicable Federal Air Pollution Control Regulations and 
Other Permanent and Enforceable Reductions

    EPA believes that the Commonwealth has demonstrated that the 
observed air quality improvement in the Erie Area is due to permanent 
and enforceable reductions in emissions resulting from implementation 
of the SIP, Federal measures, and other State-adopted measures. 
Emissions reductions attributable to these rules are shown in Table 3.

             Table 3.--Total VOC and NOX Emissions for 2002 and 2004 in Tons per Summer Dday (tpsd)
----------------------------------------------------------------------------------------------------------------
                      Year                         Point *        Area       Nonroad       Mobile       Total
----------------------------------------------------------------------------------------------------------------
                                        Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
2002...........................................          1.4         25.1          8.7         11.1         46.3
2004...........................................          1.6         25.2          8.5          9.4         44.7
Diff. (02-04)..................................         +0.2         +0.1         -0.2         -1.7         -1.6
----------------------------------------------------------------------------------------------------------------
                                              Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
2002...........................................          4.0          2.1         10.9         25.3         42.3
2004...........................................          3.1          2.1         10.5         22.4         38.1
Diff (02-04)...................................         -0.9          0.0         -0.4         -2.9        -4.2
----------------------------------------------------------------------------------------------------------------
* The stationary point source emissions shown here do not include banked emission credits of 4.1 tpd of VOC and
  361.8 tpd of NOX as indicated in Technical Appendix A-4 to Pennsylvania's SIP submission.

    Between 2002 and 2004, VOC emissions decreased by 1.6 tpsd from 
46.3 tpsd to 44.7 tpsd; NOX emissions decreased by 4.2 tpsd 
from 42.3 tpsd to 38.1 tpsd. These reductions, and anticipated future 
reductions, are due to the following permanent and enforceable 
measures.
1. Stationary Point Sources
Federal NOX SIP Call (66 FR 43795, August 21, 2001)
2. Stationary Area Sources
Solvent Cleaning (68 FR 2206, January 16, 2003)
Portable Fuel Containers (69 FR 70893, December 8, 2004)
3. Highway Vehicle Sources
Federal Motor Vehicle Control Programs (FMVCP)
    --Tier 1 (56 FR 25724, June 5, 1991)
    --Tier 2 (65 FR 6698, February 10, 2000)
Heavy-duty Engine and Vehicle Standards (62 FR 54694, October 21, 1997, 
and 65 FR 59896, October 6, 2000)
National Low Emission Vehicle (NLEV) Program (PA) (64 FR 72564, 
December 28, 1999)
Vehicle Emission Inspection/Maintenance Program (70 FR 58313, October 
6, 2005)
4. Non-Road Sources
Non-road Diesel (69 FR 38958, June 29, 2004)

    EPA believes that permanent and enforceable emissions reductions 
are the cause of the long-term improvement in ozone levels and are the 
cause of the Area achieving attainment of the 8-hour ozone standard.

[[Page 40784]]

D. The Erie Area Has a Fully Approvable Maintenance Plan Pursuant to 
Section 175A of the CAA

    In conjunction with its request to redesignate the Erie Area to 
attainment status, Pennsylvania submitted a SIP revision to provide for 
maintenance of the 8-hour ozone NAAQS in the Area for at least 11 years 
after redesignation. The Commonwealth is requesting that EPA approve 
this SIP revision as meeting the requirement of CAA 175A. Once 
approved, the maintenance plan for the 8-hour ozone NAAQS will ensure 
that the SIP for the Erie Area meets the requirements of the CAA 
regarding maintenance of the applicable 8-hour ozone standard.
What Is Required in a Maintenance Plan?
    Section 175 of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under section 175A, the plan must demonstrate continued attainment of 
the applicable NAAQS for at least 10 years after approval of a 
redesignation of an area to attainment. Eight years after the 
redesignation, the Commonwealth must submit a revised maintenance plan 
demonstrating that attainment will continue to be maintained for the 10 
years following the initial 10-year period. To address the possibility 
of future NAAQS violations, the maintenance plan must contain such 
contingency measures, with a schedule for implementation, as EPA deems 
necessary to assure prompt correction of any future 8-hour ozone 
violations. Section 175A of the CAA sets forth the elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. The Calcagni memorandum dated September 4, 1992, provides 
additional guidance on the content of a maintenance plan. An ozone 
maintenance plan should address the following provisions:
    (a) An attainment emissions inventory;
    (b) A maintenance demonstration;
    (c) A monitoring network;
    (d) Verification of continued attainment; and
    (e) A contingency plan.
Analysis of the Erie Area Maintenance Plan
    (a) Attainment inventory--An attainment inventory includes the 
emissions during the time period associated with the monitoring data 
showing attainment. PADEP determined that the appropriate attainment 
inventory year is 2004. That year establishes a reasonable year within 
the three-year block of 2004-2006 as a baseline and accounts for 
reductions attributable to implementation of the CAA requirements to 
date. The 2004 inventory is consistent with EPA guidance and is based 
on actual ``typical summer day'' emissions of VOC and NOX 
during 2004 and consists of a list of sources and their associated 
emissions.
    The 2002 and 2004 point source data was compiled from actual 
sources. Pennsylvania requires owners and operators of larger 
facilities to submit annual production figures and emission 
calculations each year. Throughput data are multiplied by emission 
factors from Factor Information Retrieval (FIRE) Data Systems and EPA's 
publication series AP-42, and are based on Source Classification Codes 
(SCC). The 2002 area source data was compiled using county-level 
activity data, from census numbers, from county numbers, etc. The 2004 
area source data was projected from the 2002 inventory using temporal 
allocations provided by the Mid-Atlantic Regional Air Management 
Association (MARAMA).
    The on-road mobile source inventories for 2002 and 2004 were 
compiled using MOBILE6.2 and Pennsylvania Department of Transportation 
(PENNDOT) estimates for VMT. The PADEP has provided detailed data 
summaries to document the calculations of mobile on-road VOC and 
NOX emissions for 2002, as well as for the projection years 
of 2004, 2009, and 2018 (shown in Tables 5 and 6 below).
    The 2002 and 2004 emissions for the majority of non-road emission 
source categories were estimated using the EPA NONROAD 2005 model. The 
NONROAD model calculates emissions for diesel, gasoline, liquefied 
petroleum gasoline, and compressed natural gas-fueled non-road 
equipment types and includes growth factors. The NONROAD model does not 
estimate emissions from locomotives or aircraft. For 2002 and 2004 
locomotive emissions, the PADEP projected emissions from a 1999 survey 
using national fuel consumption information and EPA emission and 
conversion factors. There are no significant commercial aircraft 
operations (aircraft that can seat over 60 passengers) in Erie County. 
The Erie Airport in Erie County supports some air taxi operations that 
account for a very small amount of emissions. For 2002 and 2004 
aircraft emissions, PADEP estimated emissions using small airport 
operations statistics from http://www.airnav.com, and emission factors 
and operational characteristics in the EPA-approved model, Emissions 
and Dispersion Modeling System (EDMS).
    More detailed information on the compilation of the 2002, 2004, 
2009, and 2018 inventories can be found in the Technical Appendices, 
which are part of the April 24, 2007 state submittal.
    (b) Maintenance Demonstration--On April 24, 2007, the PADEP 
submitted a maintenance plan as required by section 175A of the CAA. 
The Erie Area maintenance plan shows maintenance of the 8-hour ozone 
NAAQS by demonstrating that current and future emissions of VOC and 
NOX remain at or below the attainment year 2004 emissions 
levels throughout the Erie Area through the year 2018. A maintenance 
demonstration need not be based on modeling. See, Wall v. EPA, supra; 
Sierra Club v. EPA, supra. See also, 66 FR at 53099-53100; 68 FR at 
25430-25432.
    Tables 4 and 5 specify the VOC and NOX emissions for the 
Erie Area for 2004, 2009, and 2018. The PADEP chose 2009 as an interim 
year in the maintenance demonstration period to demonstrate that the 
VOC and NOX emissions are not projected to increase above 
the 2004 attainment level during the time of the maintenance period.

           Table 4.--Total VOC Emissions for 2004-2018 (tpsd)
------------------------------------------------------------------------
                                     2004 VOC     2009 VOC     2018 VOC
         Source category            emissions    emissions    emissions
------------------------------------------------------------------------
Point............................          1.6          1.4          1.8
Area.............................         25.2         25.5         29.1
Mobile...........................          9.4          6.9          4.5
Nonroad..........................          8.5          7.2          5.9
                                  --------------------------------------
    Total........................         44.7         41.0         41.3
------------------------------------------------------------------------


[[Page 40785]]


           Table 5.--Total NOX Emissions for 2004-2018 (tpsd)
------------------------------------------------------------------------
                                     2004 NOX     2009 NOX     2018 NOX
         Source category            emissions    emissions    emissions
------------------------------------------------------------------------
Point............................          3.1          4.5          5.0
Area.............................          2.1          2.2          7.3
Mobile...........................         22.4         16.1          7.3
Non-road.........................         10.5          9.1          7.4
                                  --------------------------------------
    Total........................         38.1         31.9         21.9
------------------------------------------------------------------------

    Additionally, the following programs are either effective or due to 
become effective and will further contribute to the maintenance 
demonstration of the 8-hour ozone NAAQS:
     The Clean Air Interstate Rule (CAIR) (71 FR 25328, April 
28, 2006).
     The Federal NOX SIP Call (66 FR 43795, August 
21, 2001).
     Area VOC regulations concerning portable fuel containers 
(69 FR 70893, December 8, 2004), consumer products (69 FR 70895, 
December 8, 2004), and architectural and industrial maintenance 
coatings (AIM) (69 FR 68080, November 23, 2004).
     Federal Motor Vehicle Control Programs (light-duty ) (Tier 
1, Tier 2; 56 FR 25724, June 5, 1991; 65 FR 6698, February 10, 2000).
     Vehicle emission/inspection/maintenance program (70 FR 
58313, October 6, 2005)
     Heavy duty diesel on-road (2004/2007) and low sulfur on-
road (2006); 66 FR 5002, (January 18, 2001).
     Non-road emission standards (2008) and off-road diesel 
fuel 2007/2010); 69 FR 38958 (June 29, 2004).
     NLEV/PA Clean Vehicle Program (54 FR 72564, December 28, 
1999)--Pennsylvania will implement this program in car model year 2008 
and beyond.
     Pennsylvania Heavy-Duty Diesel Emissions Control Program. 
(May 10, 2002).
    Based on the comparison of the projected emissions and the 
attainment year emissions along with the additional measures, EPA 
concludes that PADEP has successfully demonstrated that the 8-hour 
ozone standard should be maintained in the Erie Area.
    (c) Monitoring Network--There is currently one monitor measuring 
ozone in the Erie Area. PADEP will continue to operate its current air 
quality monitor (located in Erie County), in accordance with 40 CFR 
part 58.
    (d) Verification of Continued Attainment--In addition to 
maintaining the key elements of its regulatory program, the 
Commonwealth will track the attainment status of the ozone NAAQs in the 
Area by reviewing air quality and emissions data during the maintenance 
period. The Commonwealth will perform an annual evaluation of Vehicle 
Miles Traveled (VMT) data and emissions reported from stationary 
sources, and compare them to the assumptions about these factors used 
in the maintenance plan. The Commonwealth will also evaluate the 
periodic (every three years) emission inventories prepared under EPA's 
Consolidated Emission Reporting Regulation (40 CFR part 51, subpart A) 
to see if they exceed the attainment year inventory (2004) by more than 
10 percent. The PADEP will also continue to operate the existing ozone 
monitoring station in the Area pursuant to 40 CFR part 58 throughout 
the maintenance period and submit quality-assured ozone data to EPA 
through the AQS system. Section 175A(b) of the CAA states that eight 
years following redesignation of the Erie Area, PADEP will be required 
to submit a second maintenance plan that will ensure attainment through 
2028. PADEP has made that commitment to meet the requirement section 
175A(b).
    (e) The Maintenance Plan's Contingency Measures--The contingency 
plan provisions are designed to promptly correct a violation of the 
NAAQS that occurs after redesignation. Section 175A of the CAA requires 
that a maintenance plan include such contingency measures as EPA deems 
necessary to ensure that the Commonwealth will promptly correct a 
violation of the NAAQS that occurs after redesignation. The maintenance 
plan should identify the events that would ``trigger'' the adoption and 
implementation of a contingency measure(s), the contingency measure(s) 
that would be adopted and implemented, and the schedule indicating the 
time frame by which the state would adopt and implement the measure(s).
    The ability of the Erie Area to stay in compliance with the 8-hour 
ozone standard after redesignation depends upon VOC and NOX 
emissions in the Area remaining at or below 2004 levels. The 
Commonwealth's maintenance plan projects VOC and NOX 
emissions to decrease and stay below 2004 levels through the year 2018. 
The Commonwealth's maintenance plan outlines the procedures for the 
adoption and implementation of contingency measures to further reduce 
emissions should a violation occur.
    Contingency measures will be considered if for two consecutive 
years the fourth highest 8-hour ozone concentrations at the Erie County 
monitor are above 84 ppb. If this trigger point occurs, the 
Commonwealth will evaluate whether additional local emission control 
measures should be implemented in order to prevent a violation of the 
air quality standard. PADEP will also analyze the conditions leading to 
the excessive ozone levels and evaluate which measures might be most 
effective in correcting the excessive ozone levels. PADEP will also 
analyze the potential emissions effect of Federal, state, and local 
measures that have been adopted but not yet implemented at the time the 
excessive ozone levels occurred. PADEP will then begin the process of 
implementing any selected measures.
    Contingency measures will also be considered in the event that a 
violation of the 8-hour ozone standard occurs at the Erie County, 
Pennsylvania monitor. In the event of a violation of the 8-hour ozone 
standard, PADEP will adopt additional emissions reduction measures as 
expeditiously as practicable in accordance with the implementation 
schedule listed later in this notice and in the Pennsylvania Air 
Pollution Control Act in order to return the Area to attainment with 
the standard. Contingency measures to be considered for the Erie Area 
will include, but not be limited to the following:
    Regulatory measures:

--Additional controls on consumer products.
--Additional controls on portable fuel containers.

    Non-Regulatory measures:

--Voluntary diesel engine ``chip reflash'' (installation software to 
correct the defeat device option on certain heavy-duty diesel engines).

[[Page 40786]]

--Diesel retrofit, including replacement, repowering or alternative 
fuel use, for public or private local on-road or off-road fleets.
--Idling reduction technology for Class 2 yard locomotives.
--Idling reduction technologies or strategies for truck stops, 
warehouses and other freight-handling facilities.
--Accelerated turnover of lawn and garden equipment, especially 
commercial equipment, including promotion of electric equipment.
--Additional promotion of alternative fuel (e.g., biodiesel) for home 
heating and agricultural use.

    The plan lays out a process to have any regulatory contingency 
measures in effect within 19 months of the trigger. The plan also lays 
out a process to implement the non-regulatory contingency measures 
within 12-24 months of the trigger.

VII. Are the Motor Vehicle Emissions Budgets Established and Identified 
in the Erie Maintenance Plan Adequate and Approvable?

A. What Are the Motor Vehicle Emissions Budgets?

    Under the CAA, States are required to submit, at various times, 
control strategy SIPs and maintenance plans in ozone areas. These 
control strategy SIPs (i.e., RFP SIPs and attainment demonstration 
SIPs) and maintenance plans identify and establish MVEBs for certain 
criteria pollutants and/or their precursors to address pollution from 
on-road mobile sources. In the maintenance plan, the MVEBs are termed 
``on-road mobile source emission budgets.'' Pursuant to 40 CFR part 93 
and 51.112, MVEBs must be established in an ozone maintenance plan. An 
MVEB is the portion of the total allowable emissions that is allocated 
to highway and transit vehicle use and emissions. An MVEB serves as a 
ceiling on emissions from an area's planned transportation system. The 
MVEB concept is further explained in the preamble to the November 24, 
1993, transportation conformity rule (58 FR 62188). The preamble also 
describes how to establish and revise the MVEBs in control strategy 
SIPs and maintenance plans.
    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the State's air quality plan that 
addresses pollution from cars and trucks. ``Conformity'' to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
or reasonable progress towards the NAAQS. If a transportation plan does 
not ``conform,'' most new projects that would expand the capacity of 
roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA 
policy, criteria, and procedures for demonstrating and ensuring 
conformity of such transportation activities to a SIP.
    When reviewing submitted ``control strategy'' SIPs or maintenance 
plans containing MVEBs, EPA must affirmatively find the MVEB contained 
therein ``adequate'' for use in determining transportation conformity. 
After EPA affirmatively finds the submitted MVEB is adequate for 
transportation conformity purposes, that MVEB can be used by state and 
federal agencies in determining whether proposed transportation 
projects ``conform'' to the SIP as required by section 176(c) of the 
CAA. EPA's substantive criteria for determining ``adequacy'' of a MVEB 
are set out in 40 CFR 93.118(e)(4).
    EPA's process for determining ``adequacy'' consists of three basic 
steps: Public notification of a SIP submission, a public comment 
period, and EPA's adequacy finding. This process for determining the 
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 
1999 guidance, ``Conformity Guidance on Implementation of March 2, 
1999, Conformity Court Decision.'' This guidance was finalized in the 
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards and 
Miscellaneous Revisions for Existing Areas; Transportation Conformity 
Rule Amendments--Response to Court Decision and Additional Rule 
Change'' on July 1, 2004 (69 FR 40004). EPA consults this guidance and 
follows this rulemaking in making its adequacy determinations.
    The MVEBS for the Erie Area are listed in Table 1 of this document 
for 2009 and 2018, and are the projected emissions for the on-road 
mobile sources plus any portion of the safety margin allocated to the 
MVEBs (safety margin allocation for 2009 and 2018 only). These emission 
budgets, when approved by EPA, must be used for transportation 
conformity determinations.

B. What Is a Safety Margin?

    A ``safety margin'' is the difference between the attainment level 
of emissions (from all sources) and the projected level of emissions 
(from all sources) in the maintenance plan. The attainment level of 
emissions is the level of emissions during one of the years in which 
the area met the NAAQS. The following example is for the 2018 safety 
margin: The Erie Area first attained the 8-hour ozone NAAQS during the 
2002 to 2004 time period. The State used 2004 as the year to determine 
attainment levels of emissions for the Erie Area. The total emissions 
from point, area, mobile on-road, and mobile non-road sources in 2004 
equaled 44.7 tpsd of VOC and 38.1 tpsd of NOX. The PADEP 
projected emissions out to the year 2018 and projected a total of 41.3 
tpsd of VOC and 21.9 tpsd of NOX from all sources in the 
Erie Area. The safety margin for 2018 would be the difference between 
these amounts, or 3.4 tpsd of VOC and 16.2 tpsd of NOX. The 
emissions up to the level of the attainment year including the safety 
margins are projected to maintain the area's air quality consistent 
with the 8-hour ozone NAAQS. The safety margin is the extra emissions 
reduction below the attainment levels that can be allocated for 
emissions by various sources as long as the total emission levels are 
maintained at or below the attainment levels. Table 6 shows the safety 
margins for the 2009 and 2018 years.

             Table 6.--2009 and 2018 Safety Margins for Erie
------------------------------------------------------------------------
                                                    VOC          NOX
                Inventory year                   emissions    emissions
                                                   (tpsd)       (tpsd)
------------------------------------------------------------------------
2004 Attainment...............................         44.7         38.1
2009 Interim..................................         41.0         31.9
2009 Safety Margin............................          3.7          6.2
2004 Attainment...............................         44.7         38.1
2018 Final....................................         41.3         21.9

[[Page 40787]]

 
2018 Safety Margin............................          3.4         16.2
------------------------------------------------------------------------

    The PADEP allocated 0.4 tpsd VOC and 0.5 tpsd NOX to the 
2009 interim VOC projected on-road mobile source emissions projection 
and the 2009 interim NOX projected on-road mobile source 
emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs 
the PADEP allocated 0.5 tpsd VOC and 0.6 tpsd NOX from the 
2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the 
mobile source budgets these portions of the safety margins are no 
longer available, and may no longer be allocated to any other source 
category. Table 7 shows the final 2009 and 2018 MVEBs for Erie.

           Table 7.--2009 and 2018 Final MVEBs for Erie County
------------------------------------------------------------------------
                                                    VOC          NOX
                Inventory year                   emissions    emissions
                                                   (tpsd)       (tpsd)
------------------------------------------------------------------------
2009 projected on-road mobile source projected          6.5         15.6
 emissions....................................
2009 Safety Margin Allocated to MVEBs.........          0.4          0.5
2009 MVEBs....................................          6.9         16.1
2018 projected on-road mobile source projected          4.0          6.7
 emissions....................................
2018 Safety Margin Allocated to MVEBs.........          0.5          0.6
2018 MVEBs....................................          4.5          7.3
------------------------------------------------------------------------

C. Why Are the MVEBs Approvable?

    The 2009 and 2018 MVEBs for the Erie Area are approvable because 
the MVEBs for VOCs and NOX continue to maintain the total 
emissions at or below the attainment year inventory levels as required 
by the transportation conformity regulations.

D. What Is the Adequacy and Approval Process for the MVEBs in the Erie 
Maintenance Plan?

    The MVEBs for the Erie Area maintenance plan are being posted to 
EPA's conformity Web site concurrently with this proposal. The public 
comment period will end at the same time as the public comment period 
for this proposed rule. In this case, EPA is concurrently processing 
the action on the maintenance plan and the adequacy process for the 
MVEBs contained therein. In this proposed rule, EPA is proposing to 
find the MVEBs adequate and also proposing to approve the MVEBs as part 
of the maintenance plan. The MVEBs cannot be used for transportation 
conformity until the maintenance plan and associated MVEBs are approved 
in a final Federal Register notice, or EPA otherwise finds the budgets 
adequate in a separate action following the comment period.
    If EPA receives adverse written comments with respect to the 
proposed approval of the Erie MVEBs, or any other aspect of our 
proposed approval of this updated maintenance plan, we will respond to 
the comments on the MVEBs in our final action or proceed with the 
adequacy process as a separate action. Our action on the Erie Area 
MVEBs will also be announced on EPA's conformity Web site: http://www.epa.gov/otaq/stateresources/transconf/index.htm (once there, click 
on ``Adequacy Review of SIP Submissions'').

VIII. Proposed Actions

    EPA is proposing to determine that the Erie Area has attained the 
8-hour ozone NAAQS. EPA is also proposing to approve the redesignation 
of the Erie Area from nonattainment to attainment for the 8-hour ozone 
NAAQS. EPA has evaluated Pennsylvania's redesignation request 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 would change the designation of the Erie Area from 
nonattainment to attainment for the 8-hour ozone standard. EPA is also 
proposing to approve the associated maintenance plan for the Erie Area, 
submitted on April 24, 2007, as a revision to the Pennsylvania SIP. EPA 
is proposing to approve the maintenance plan for the Erie Area because 
it meets the requirements of section 175A as described previously in 
this notice. EPA is also proposing to approve the 2002 base-year 
inventory for the Erie Area, and the MVEBs submitted by Pennsylvania 
for the Erie Area in conjunction with its redesignation request. EPA is 
soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

IX. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 (Pub. L. 104-4). This proposed rule also does not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal

[[Page 40788]]

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), nor 
will it 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), because it merely proposes to approve 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 proposed rule also is not subject to Executive 
Order 13045 (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. 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. 
As required by section 3 of Executive Order 12988 (61 FR 4729, February 
7, 1996), in issuing this proposed rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct. 
EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order.
    This rule, proposing to approve the redesignation of the Erie Area 
to attainment for the 8-hour ozone NAAQS, the associated maintenance 
plan, the 2002 base-year inventory, and the MVEBs identified in the 
maintenance plan, does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

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

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

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

    Dated: July 16, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E7-14360 Filed 7-24-07; 8:45 am]
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