[Federal Register Volume 72, Number 202 (Friday, October 19, 2007)]
[Rules and Regulations]
[Pages 59213-59216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20567]



40 CFR Part 52 and 81

[EPA-R03-OAR-2007-0344; FRL-8484-3]

Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Redesignation of the Mercer County Portion of the 
Youngstown-Warren-Sharon, OH-PA 8-Hour Ozone Nonattainment Area to 
Attainment and Approval of the Area's Maintenance Plan and 2002 Base 
Year Inventory

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Pennsylvania. The Pennsylvania 
Department of Environmental Protection (PADEP) is requesting that the 
Mercer County portion of the Youngstown-Warren-Sharon, OH-PA 8-hour 
ozone nonattainment area (``Youngstown Area'' or ``Area'') be 
redesignated as attainment for the 8-hour ozone ambient air quality 
standard (NAAQS). The Area is comprised of Mercer County, Pennsylvania 
and Trumbull, Mahoning, and Columbiana Counties, Ohio. EPA is approving 
the ozone redesignation request for Mercer County. In a separate 
rulemaking action (72 FR 32190, June 12, 2007) EPA approved the ozone 
redesignation request for Trumbull, Mahoning, and Columbiana Counties, 
Ohio. In conjunction with its redesignation request, PADEP submitted a 
SIP revision consisting of a maintenance plan for Mercer County that 
provides for continued attainment of the 8-hour ozone NAAQS for at 
least 10 years after redesignation. EPA is approving the 8-hour 
maintenance plan. PADEP also submitted a 2002 base year inventory for 
Mercer County which EPA is approving. In addition, EPA is approving the 
adequacy determination for the motor vehicle emission budgets (MVEBs) 
that are identified in the Mercer County maintenance plan for purposes 
of transportation conformity, and is approving those MVEBs. EPA is 
approving the redesignation request, and the maintenance plan and the 
2002 base year emissions inventory as revisions to the Pennsylvania SIP 
in accordance with the requirements of the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on November 19, 

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0344. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the Pennsylvania Department of Environment 
Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market 
Street, Harrisburg, PA 17105.

FOR FURTHER INFORMATION CONTACT: Amy Caprio, (215) 814-2156, or by e-
mail at caprio.amy@epa.gov.


I. Background

    On July 27, 2007 (72 FR 41246), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed 
approval of Pennsylvania's redesignation request, a SIP revision that 
establishes a maintenance plan for Mercer County that provides for 
continued attainment of the 8-hour ozone NAAQS for at least 10 years 
after redesignation, and a 2002 base year emissions inventory. The 
formal SIP revisions were submitted by PADEP on March 27, 2007. Other 
specific requirements of Pennsylvania's redesignation request SIP 
revision for the maintenance plan and the rationales for EPA's proposed 
actions are explained in the NPR and will not be restated here. No 
public comments were received on the NPR.
    However, on December 22, 2006, the U.S. Court of Appeals for the 
District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule 
for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). South 
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C.Cir. 
2006). On June 8, 2007, in South Coast Air Quality Management Dist. v. 
EPA, Docket No. 04-1201, in response to several petitions for 
rehearing, the D. C. Circuit clarified that the Phase 1 Rule was 
vacated only with regard to those parts of the rule that had been 
successfully challenged. Therefore, the Phase 1 Rule provisions related 
to classifications for areas currently classified under subpart 2 of 
Title I, part D of the CAA as 8-hour nonattainment areas, the 8-hour 
attainment dates and

[[Page 59214]]

the timing for emissions reductions needed for attainment of the 8-hour 
ozone NAAQS remain effective. The June 8 decision left intact the 
Court's rejection of EPA's reasons for implementing the 8-hour standard 
in certain nonattainment areas under subpart 1 in lieu of subpart 2. By 
limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule 
that had not been successfully challenged. The June 8 decision 
reaffirmed the December 22, 2006 decision that EPA had improperly 
failed to retain measures required for 1-hour nonattainment areas under 
the anti-backsliding provisions of the regulations: (1) Nonattainment 
area New Source Review (NSR) requirements based on an area's 1-hour 
nonattainment classification; (2) Section 185 penalty fees for 1-hour 
severe or extreme nonattainment areas; and (3) measures to be 
implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on 
the contingency of an area not making reasonable further progress 
toward attainment of the 1-hour NAAQS, or for failure to attain that 
    In addition the June 8 decision clarified that the Court's 
reference to conformity requirements for anti-backsliding purposes was 
limited to requiring the continued use of 1-hour MVEBs until 8-hour 
budgets were available for 8-hour conformity determinations, which is 
already required under EPA's conformity regulations. The Court thus 
clarified that 1-hour conformity determinations are not required for 
anti-backsliding purposes.
    For the reasons set forth in the proposal, EPA does not believe 
that the Court's rulings alter any requirements relevant to this 
redesignation action so as to preclude redesignation, and do not 
prevent EPA from finalizing this redesignation. EPA believes that the 
Court's December 22, 2006 and June 8, 2007 decisions impose no 
impediment to moving forward with redesignation of this area to 
attainment, because even in light of the Court's decisions, 
redesignation is appropriate under the relevant redesignation 
provisions of the CAA and longstanding policies regarding redesignation 
    In its proposal, EPA proposed to find that the area had satisfied 
the requirements under the 1-hour standard whether the 1-hour standard 
was deemed to be reinstated or whether the Court's decision on the 
petition for rehearing were modified to require something less than 
compliance with all applicable 1-hour requirements. Because EPA 
proposed to find that the area satisfied the requirements under either 
scenario, EPA is proceeding to finalize the redesignation and to 
conclude that the area met the requirements under the 1-hour standard 
applicable for purposes of redesignation under the 8-hour standard. 
These include the provisions of EPA's anti-backsliding rules, as well 
as the additional anti-backsliding provisions identified by the Court 
in its rulings. In its June 8, 2007 decision the Court limited its 
vacatur so as to uphold those provisions of the anti-backsliding 
requirements that were not successfully challenged. Therefore, EPA 
finds that the area has met the anti-backsliding requirements, see 40 
CFR 51.900 et seq.; 70 FR 30592, 30604 (May 26, 2005) which apply by 
virtue of the area's classification for the 1-hour ozone NAAQS, as well 
as the four additional anti-backsliding provisions identified by the 
Court, or that such requirements are not applicable for purposes of 
redesignation. In addition, with respect to the requirement for 
transportation conformity under the 1-hour standard, the Court in its 
June 8 decision clarified that for those areas with 1-hour MVEBs, anti-
backsliding requires only that those 1-hour budgets must be used for 8-
hour conformity determinations until replaced by 8-hour budgets. To 
meet this requirement, conformity determinations in such areas must 
continue to comply with the applicable requirements of EPA's conformity 
regulations at 40 CFR Part 93. The court clarified that 1-hour 
conformity determinations are not required for anti-backsliding 

II. Final Action

    EPA is approving the Commonwealth of Pennsylvania's redesignation 
request, maintenance plan, and the 2002 base year emissions inventory 
because the requirements for approval have been satisfied. EPA has 
evaluated Pennsylvania's redesignation request that was submitted on 
March 27, 2007 and determined that it meets the redesignation criteria 
set forth in section 107(d)(3)(E) of the CAA. EPA believes that the 
redesignation request and monitoring data demonstrate that Mercer 
County has attained the 8-hour ozone standard. The final approval of 
this redesignation request will change the designation of Mercer County 
from nonattainment to attainment for the 8-hour ozone standard. EPA is 
approving the maintenance plan for Mercer County submitted on March 27, 
2007 as a revision to the Pennsylvania SIP. EPA is also approving the 
MVEBs submitted by PADEP in conjunction with its redesignation request. 
In addition, EPA is approving the 2002 base year emissions inventory 
submitted by PADEP on March 27, 2007 as a revision to the Pennsylvania 
SIP. In this final rulemaking, EPA is notifying the public that we have 
found that the MVEBs for volatile organic compounds (VOC) and nitrogen 
oxides (NOX) in Mercer County for the 8-hour ozone 
maintenance plan are adequate and approved for conformity purposes.\1\ 
As a result of our finding, Mercer County must use the MVEBs from the 
submitted 8-hour ozone maintenance plan for future conformity 
determinations. The adequate and approved MVEBs are provided in the 
following table:

    \1\ EPA found the MVEBs for Trumbull, Mahoning, and Columbiana 
Counties, Ohio adequate in a Notice of Adequacy on April 18, 2007 
(72 FR 19491).

Adequate and Approved Motor Vehicle Emissions Budgets in Tons per Summer
                               Day (tpsd)
                      Budget year                         VOC      NOX
2009..................................................      4.2     11.2
2018..................................................      2.6      4.9

    Mercer County is subject to the CAA's requirement for the basic 
nonattainment areas until and unless it is redesignated to attainment.

III. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not

[[Page 59215]]

have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This rule also is 
not subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it approves a state rule implementing a Federal 
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 18, 2007. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action.
    This action, approving the redesignation of Mercer County to 
attainment for the 8-hour ozone NAAQS, the associated maintenance plan, 
the 2002 base year emission inventory, and the MVEBs identified in the 
maintenance plan, may not be challenged later in proceedings to enforce 
its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Air pollution Control, National Parks, Wilderness Areas.

    Dated: October 10, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region III.

40 CFR parts 52 and 81 are amended as follows:


1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania

2. In Sec.  52.2020, the table in paragraph (e)(1) is amended by adding 
an entry to the end of the table to read as follows:

 52.2020  Identification of plan.

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

    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA  approval date      explanation
                                                  * * * * * * *
8-Hour Ozone Maintenance Plan and  Mercer County......        03/27/07  10/19/07 [Insert
 2002 Base Year Emissions                                                page number where
 Inventory.                                                              the document

* * * * *


3. The authority citation for Part 81 continues to read as follows:

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

4. In Sec.  81.339, the table entitled ``Pennsylvania--Ozone (8-Hour 
Standard)'' is amended by revising the entry for the Youngstown-Warren-
Sharon, OH-PA: Mercer County to read as follows:

Sec.  81.339  Pennsylvania.

* * * * *

                                                          Pennsylvania--Ozone (8-Hour Standard)
                                                         Designationa                                           Category/Classification
        Designated Area         ------------------------------------------------------------------------------------------------------------------------
                                            Date \1\                        Type                        Date \1\                        Type

[[Page 59216]]

                                                                      * * * * * * *
Youngstown-Warren-Sharon, OH-PA
    Mercer County..............  11/19/07                       Attainment
                                                                      * * * * * * *
\a\ Includes Indian County located in each county or area, except otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *

 [FR Doc. E7-20567 Filed 10-18-07; 8:45 am]