[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Rules and Regulations]
[Pages 11674-11677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5885]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52 and 81

[EPA-R03-OAR-2007-0624; FRL-8777-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Redesignation of the Clearfield/Indiana 8-Hour Ozone 
Nonattainment Area to Attainment and Approval of the Maintenance Plan 
and 2002 Base-Year Inventory

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Pennsylvania. The Pennsylvania 
Department of Environmental Protection (PADEP) is requesting that the 
Clearfield and Indiana Counties ozone nonattainment area (Clearfield/
Indiana Area) be redesignated as attainment for the 1997 8-hour ozone 
national ambient air quality standard (NAAQS). EPA is approving the 
ozone redesignation request for the Clearfield/Indiana Area. In 
conjunction with its redesignation request, PADEP submitted a SIP 
revision consisting of a maintenance plan for the Clearfield/Indiana 
Area that provides for continued attainment of the 1997 8-hour ozone 
NAAQS for at least 10 years after redesignation. EPA is approving the 
8-hour maintenance plan. PADEP also submitted a 2002 base year 
inventory for the Clearfield/Indiana Area, which EPA is approving. In 
addition, EPA is approving the adequacy determination for the motor 
vehicle emission budgets (MVEBs) that are identified in the Clearfield/
Indiana Area maintenance plan for purposes of transportation 
conformity, and is approving those MVEBs. EPA is approving the 
redesignation request, the maintenance plan, and the 2002 base year 
emissions inventory as revisions to the Pennsylvania SIP in accordance 
with the requirements of the Clean Air Act (CAA or the Act).

EFFECTIVE DATE: This final rule is effective on April 20, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0624. All documents in the docket are listed in 
the www.regulations.gov 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, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Gregory Becoat, (215) 814-2036, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On July 23, 2008 (73 FR 43731), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed 
approval of Pennsylvania's redesignation request and maintenance plan 
SIP revisions for the Clearfield/Indiana Area that provide for 
continued attainment of the 1997 8-hour ozone NAAQS for at least 10 
years

[[Page 11675]]

after redesignation. The NPR also proposed approval of a 2002 base year 
emissions inventory for the Clearfield/Indiana Area. The formal SIP 
revisions were submitted by PADEP on June 14, 2007, with two 
significant changes submitted on May 23, 2008 that separated the MVEBs 
for the Clearfield/Indiana Area into separate MVEBs for Clearfield 
County and Indiana County and used a new methodology that projects 
future emissions of nitrogen oxides (NOX) from electric 
generating units (EGUs). Other specific requirements of Pennsylvania's 
redesignation request and maintenance plan SIP revisions, and the 
rationale for EPA's proposed actions, are explained in the NPR and will 
not be restated here. No public comments were received on the NPR.
    The holdings in two lawsuits potentially impact this redesignation 
action. As we explain below, we believe neither lawsuit precludes the 
redesignation of the Clearfield/Indiana Area.
    However, on December 22, 2006, the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) vacated EPA's Phase 1 
Implementation Rule for the 8-Hour Ozone Standard. (69 FR 23591, April 
30, 2004). South Coast Air Quality Management Dist. v. EPA, 472 F.3d 
882 (D.C. Cir. 2006). On June 8, 2007, in South Coast Air Quality 
Management Dist. v. EPA, Docket No. 04-1201, in response to several 
petitions for rehearing, the D.C. Circuit clarified that the Phase 1 
Rule was vacated only with regard to those parts of the rule that had 
been successfully challenged. Therefore, the Phase 1 Rule provisions 
related to classifications for areas currently classified under subpart 
2 of Title I, part D of the Act as 8-hour nonattainment areas, the 8-
hour attainment dates, and the timing for emissions reductions needed 
for attainment of the 8-hour ozone NAAQS remain effective. The June 8, 
2007 decision left intact the Court's rejection of EPA's reasons for 
implementing the 8-hour standard in certain nonattainment areas under 
subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let 
stand EPA's revocation of the 1-hour standard and those anti-
backsliding provisions of the Phase 1 Rule that had not been 
successfully challenged. The June 8, 2007 decision reaffirmed the 
December 22, 2006 decision that EPA had improperly failed to retain 
measures required for 1-hour nonattainment areas under the anti-
backsliding provisions of the regulations: (1) Nonattainment area New 
Source Review (NSR) requirements based on an area's 1-hour 
nonattainment classification; (2) Section 185 penalty fees for the 1-
hour severe or extreme nonattainment areas; and (3) measures to be 
implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on 
the contingency of an area not making reasonable further progress 
toward attainment of the 1-hour NAAQS, or for failure to attain NAAQS. 
In addition, the June 8, 2007 decision clarified that the Court's 
reference to conformity requirements for anti-backsliding purposes was 
limited to requiring the continued use of the 1-hour motor vehicle 
emissions budgets until 8-hour budgets were available for 8-hour 
conformity determinations, which is already required under EPA's 
conformity regulations. The Court thus clarified the 1-hour conformity 
determinations are not required for anti-backsliding purposes.
    For the reasons set forth in the proposal, EPA does not believe 
that the Court's rulings alter any requirements relevant to this 
redesignation action so as to preclude redesignation, and do not 
prevent EPA from finalizing this redesignation. EPA believes that the 
Court's December 22, 2006 and June 8, 2007 decisions impose no 
impediment to moving forward with redesignation of this area to 
attainment, because even in the light of the Court's decisions, 
redesignation is appropriate under the relevant redesignation 
provisions of the CAA and longstanding policies regarding redesignation 
requests.
    The second lawsuit relates to EPA's Clean Air Interstate Rule 
(CAIR). On July 11, 2008, the D.C. Circuit ruled on various challenges 
to EPA's CAIR, and issued an order vacating CAIR in its entirety. 531 
F.3d 896 (D.C. Cir. 2008). This order did not become final before 
December 23, 2008, when the Court granted partial rehearing as to the 
remedy set forth in its July 11, 2008 decision and issued an opinion 
remanding CAIR to EPA without vacating. During the pendency of the 
remand, CAIR will remain in place. North Carolina v. EPA, 550 F.3d 1176 
(D.C. Cir. 2008). The Court stated, however, in its December 23, 2008 
opinion that EPA was still under an obligation to remedy what the Court 
characterized as ``flaws'' with CAIR, though the Court declined to 
impose a deadline for EPA to finalize that remedy.
    EPA believes that the maintenance plan for Clearfield and Indiana 
Counties demonstrates that the NAAQS will be maintained for at least 
120 months (ten years), and through 10 ozone seasons, as required by 
section 175A(a) of the Act, 42 U.S.C. 7505a(a), whether or not CAIR and 
its specific, associated emissions reductions from a subset of point 
sources (electric generating units), continue in effect. Ten years of 
maintenance of the NAAQS is demonstrated in Table 5 (and its associated 
explanatory material) of the NPR (73 FR at 42739, July 23, 2008). As 
the NPR indicates, emissions from area and non-road sources in the 
Clearfield/Indiana Area are projected to have an overall decline from 
2004 through the end of the 2018 ozone season. Thus, even if point 
source projected emissions were to remain steady or even minimally 
increase during this same time frame, the 1997 ozone NAAQS will be 
maintained in the Clearfield/Indiana Area. However, point source 
measures currently in place, such as the NOX SIP call, allow 
EPA to conclude that NOX emissions from point source in the 
Clearfield/Indiana Area are more likely to decline than increase or 
hold steady through the end of the 2018 ozone season. Thus, even if EPA 
could comply with the D.C. Circuit's CAIR opinions through a new or 
revised program that did not achieve the same (or any) level of the 
NOX reductions of the current CAIR program in the 
Clearfield/Indiana Area, the projected emissions in the maintenance 
plan indicate that the Clearfield/Indiana Area will continue to 
maintain the 1997 8-hour ozone NAAQS throughout the duration of the 120 
month (from the effective date of this redesignation) and ten ozone 
season (beginning of ozone season 2009 through end of ozone season 
2018) maintenance period. EPA may therefore approve the redesignation 
request.

II. Final Action

    EPA is approving the Commonwealth of Pennsylvania's redesignation 
request, maintenance plan, 2002 base-year inventory, and MVEBs SIP 
revisions submitted on June 14, 2007, because they satisfy the 
requirements of the CAA. EPA is also approving the two significant 
changes that separated the MVEBs for the Clearfield/Indiana Area into 
separate MVEBs for Clearfield County and Indiana County and used a new 
methodology that projects future emissions of NOX from EGUs, 
submitted on May 23, 2008 as a revision to the Pennsylvania SIP. The 
final approval of this redesignation request will change the 
designation of the Clearfield/Indiana Area from nonattainment to 
attainment for the 1997 8-hour ozone standard.
    In this final rulemaking, EPA is notifying the public that we have 
found that the MVEBs for NOX and volatile organic compounds 
(VOC) in the Clearfield/Indiana Area for the 1997 8-hour ozone 
maintenance plan are adequate and approved for conformity

[[Page 11676]]

purposes. As a result of our finding, the Clearfield/Indiana Area must 
use the MVEBs from the submitted 8-hour ozone maintenance plan for 
future conformity determinations. The Clearfield/Indiana Area contains 
one Metropolitan Planning Organizations (MPO) and one Rural Planning 
Organizations (RPO) responsible for transportation planning within the 
Clearfield/Indiana Area. The MPO is the Southwestern Pennsylvania 
Commission for Indiana County, and the RPO is the North Central PA 
Regional Planning and Development Commission for Clearfield County. The 
adequate and approved MVEBs for the MPO and the RPO within the 
Clearfield/Indiana Area are provided in the following tables:

   Table 1a--Clearfield/Indiana Motor Vehicle Emissions Budgets, North
  Central Pennsylvania Regional Planning and Development Commission RPO
  (Clearfield County Portion of the Area), in Tons per Summer Day (TPD)
------------------------------------------------------------------------
                         Year                             VOC      NOX
------------------------------------------------------------------------
2009..................................................     4.11    11.44
2018..................................................     2.71     5.14
------------------------------------------------------------------------


      Table 1b--Clearfield/Indiana Motor Vehicle Emissions Budgets
 Southwestern Pennsylvania Commission MPO (Indiana County Portion of the
                   Area), in Tons per Summer Day (TPD)
------------------------------------------------------------------------
                         Year                             VOC      NOX
------------------------------------------------------------------------
2009..................................................     3.06     4.85
2018..................................................     1.92     2.40
------------------------------------------------------------------------

    The Clearfield/Indiana Area is subject to the CAA's requirement for 
the basic nonattainment areas until and unless it is redesignated to 
attainment.

III. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Redesignation is an action that affects the status of a geographical 
area and does not impose any new regulatory requirements on sources. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This final rule also 
does not have tribal implications because it will not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). Because this action affects the status of 
a geographical area, does not impose any new requirements on sources, 
or allows the state to avoid adopting or implementing other 
requirements, this action also does not have Federalism implications 
because it does not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999). This action merely approves a state rule implementing 
a Federal requirement, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. This 
rule also is not subject to Executive Order 13045 ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it approves a state rule implementing a 
Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Redesignation is an action that 
affects the status of a geographical area and does not impose any new 
requirements on sources. Thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply. This rule does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 18, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action.
    This action, approving the redesignation of the Clearfield/Indiana 
Area to attainment for the 8-hour ozone NAAQS, the associated 
maintenance plan, the 2002 base year emission inventory, and the MVEBs 
identified in the maintenance plan, may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

[[Page 11677]]

40 CFR Part 81

    Air pollution control, national parks, Wilderness areas.

    Dated: February 11, 2009.
James W. Newsom,
Acting Regional Administrator, Region III.

0
40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania

0
2. In Sec.  52.2020, the table in paragraph (e)(1) is amended by adding 
an entry at the end of the table to read as follows:


Sec.  52.2020  Identification of plan.

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

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                                      Applicable geographic
Name of non-regulatory SIP revision           area                     State submittal date              EPA approval date      Additional explanation
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                                                                      * * * * * * *
8-Hour Ozone Maintenance Plan and    Clearfield/Indiana      06/14/07, 05/23/08......................  3/19/09 [Insert page   ..........................
 2002 Base Year Emissions Inventory.  Area: Clearfield and                                              number where the
                                      Indiana Counties.                                                 document begins].
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* * * * *

PART 81--[AMENDED]

0
3. The authority citation for Part 81 continues to read as follows:

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

0
4. In Sec.  81.339, the table entitled ``Pennsylvania--Ozone (8-Hour 
Standard)'' is amended by revising the entry for the Clearfield and 
Indiana, PA, Clearfield County, Indiana County, to read as follows:


Sec.  81.339  Pennsylvania

* * * * *

                                                          Pennsylvania--Ozone (8-Hour Standard)
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                                                           Designation a                                          Category/classification
        Designated area         ------------------------------------------------------------------------------------------------------------------------
                                                Date\1\                           Type                      Date \1\                      Type
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                                                                      * * * * * * *
Clearfield and Indiana, PA:      April 20, 2009......................  Attainment.
 Clearfield County, Indiana
 County, Northampton County.
 
                                                                      * * * * * * *
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a Includes Indian County located in each county or area, except otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.

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[FR Doc. E9-5885 Filed 3-18-09; 8:45 am]
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