[Federal Register Volume 76, Number 104 (Tuesday, May 31, 2011)]
[Rules and Regulations]
[Pages 31237-31239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13275]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-1082; FRL-9313-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Determination of Attainment for the Pittsburgh-Beaver 
Valley 8-Hour Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is making a final determination that the Pittsburgh-Beaver 
Valley 8-hour ozone nonattainment area (the Pittsburgh Area) has 
attained the 1997 8-hour ozone national ambient air quality standards 
(NAAQS). This determination is based upon complete, quality assured, 
and certified ambient air monitoring data that show the area has 
monitored attainment of the 1997 8-hour ozone NAAQS for the 2007 to 
2009 monitoring period. Complete, quality-assured air monitoring data 
available for 2010 in EPA's Air Quality System (AQS) are consistent 
with continued attainment. In accordance with EPA's applicable ozone 
implementation rule, this determination suspends the obligation of the 
Commonwealth of Pennsylvania to submit an attainment demonstration and 
associated reasonably available control measures (RACM), a reasonable 
further progress (RFP) plan, contingency measures, and other planning 
requirements related to attainment of the 1997 8-hour ozone NAAQS for 
the Pittsburgh Area for as long as the nonattainment area continues to 
meet the 1997 8-hour ozone NAAQS. This determination of attainment is 
not equivalent to a redesignation to attainment. The State must still 
meet the statutory requirements for redesignation in order to be 
redesignated to attainment. This action is being taken under the Clean 
Air Act (CAA).

DATES: Effective Date: This final rule is effective on June 30, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-1082. All documents in the docket are listed in 
the http://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 http://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.

FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 814-2181, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On February 7, 2011 (76 FR 6590), EPA published a notice of 
proposed rulemaking (NPR), proposing to determine that the Pittsburgh 
Area has attained the 1997 8-hour ozone NAAQS. The Pittsburgh Area is 
composed of Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, 
and Westmoreland Counties in Pennsylvania. EPA's determination is based 
upon complete, quality-assured, quality-controlled, and certified 
ambient air quality monitoring data for the years 2007 to 2009 showing 
that the Pittsburgh Area has monitored attainment of the 1997 8-hour 
ozone NAAQS. Complete air quality monitoring data for 2010 in AQS also 
show continued attainment.

II. Summary of Action

    EPA is determining that the Pittsburgh Area has attained the 1997 
8-hour ozone NAAQS based on 2007 to 2009 complete, quality-assured, and 
certified ambient air quality monitoring data. Data for 2010 are 
consistent with continued attainment. As provided in 40 CFR 51.918, a 
final determination of

[[Page 31238]]

attainment suspends the requirement for the Commonwealth of 
Pennsylvania to submit, for the Pittsburgh Area, an attainment 
demonstration and associated RACM, RFP plan, contingency measures, and 
any other planning requirements related to attainment of the 1997 8-
hour ozone NAAQS as long as the area continues to attain the 1997 8-
hour ozone NAAQS. If EPA subsequently determines, after notice-and-
comment rulemaking, that the Pittsburgh Area has violated the 1997 8-
hour ozone NAAQS, the basis for the suspension of the specific 
requirements, set forth at 40 CFR 51.918, would no longer exist, and 
the Pittsburgh Area would thereafter have to address applicable 
requirements.
    This action is not a redesignation of the area to attainment. The 
Pittsburgh Area will remain designated nonattainment for the 1997 8-
hour ozone NAAQS until such time as EPA determines that the area meets 
the CAA requirements for redesignation to attainment, including an 
approved maintenance plan.
    Other specific information regarding this determination and the 
rationale for EPA's proposed action are explained in the NPR, and will 
not be restated here.

III. Summary of Public Comments and EPA Responses

    On March 9, 2011, EPA received adverse comments on the NPR from Mr. 
Robert Ukeiley on behalf of the Chesapeake Bay Foundation, the Group 
Against Smog and Pollution, the National Parks Conservation 
Association, and the Sierra Club. A summary of the comments submitted 
and EPA's response is provided below.
    Comment: The commenter stated that EPA should not approve the 
determination of attainment because the Pittsburgh Area does not have a 
plan to meet the 1997 8-hour ozone NAAQS.
    Response: EPA disagrees with the commenter's assertion that no 
common sense or legal basis exists for EPA to finalize its 
determination of attainment. The sole question addressed by EPA's 
rulemaking is whether the monitored ambient air quality in the area 
shows that the area has attained the 1997 8-hour ozone standard. The 
commenter does not contest EPA's finding that the Pittsburgh Area meets 
this NAAQS. Upon EPA's final determination that the area has attained 
the standard, 40 CFR 51.918 provides that the CAA requirement to submit 
planning SIPs associated with attainment of that standard are suspended 
for as long as the area continues to have ambient air quality data that 
meets that NAAQS. This regulation, which was upheld by the United 
States Court of Appeals for the District of Columbia Circuit (DC Cir) 
in NRDC v. EPA, 571 F.3d 1245 (DC Cir. 2009), is based on the principle 
that when an area is already attaining a standard, and continues in 
attainment, there is no basis for requiring planning SIPs to attain 
that standard. In other words, if an area is meeting the NAAQS, it does 
not need a plan to meet the NAAQS. No additional measures are required 
for the area to attain the standard, since the area is already in 
attainment. In any event, EPA's determination of attainment is based 
solely on quality-assured ambient air quality monitoring. It is 40 CFR 
51.918 that directs the suspension of planning requirements for the 
1997 8-hour ozone standard. This suspension lasts only for so long as 
the area continues in attainment. Contrary to the commenter's 
contention, under these circumstances there are no adverse impacts from 
the suspension.
    Comment: The commenter asserts that the data from ambient air 
quality monitors in the Pittsburgh Area do not meet the 75 parts per 
billion (ppb) 2008 NAAQS or the 60 to 70 ppb levels proposed in EPA's 
reconsideration of the 2008 NAAQS.
    Response: EPA's rulemaking action here addresses only the 1997 8-
hour ozone NAAQS, and has no bearing on whether the area is attaining 
any other NAAQS or requirements under any other NAAQS. Therefore, this 
comment is not relevant to this rulemaking action.
    Comment: The commenter alleges that EPA must perform an evaluation 
under CAA Section 110(l) to justify a determination of attainment for 
the Pittsburgh Area, and further alleges that CAA Section 110(l) would 
show that EPA should disapprove the attainment determination. The 
commenter contends that EPA must analyze how delaying implementation of 
the 1987 SIP revisions, including RACT, will interfere with other NAAQs 
attainment.
    Response: CAA Section 110(l) applies explicitly and only to a 
``revision to an implementation plan.'' As set forth in the response to 
comment above, EPA's rulemaking here is restricted to EPA's 
determination, based on ambient air quality, that the Pittsburgh Area 
is attaining the 1997 8-hour ozone standard. It is not a SIP revision, 
and thus section 110(l) is by its own terms not applicable to this 
rulemaking. It is not this determination of attainment, but rather 
EPA's ozone implementation rule, 40 CFR 51.918, that specifies the 
consequence of the determination as suspension of the area's 
obligations to submit an attainment demonstration, a RFP plan, 
contingency measures and other planning requirements related to 
attainment as SIP revisions for as long as the area continues to 
attain. In any case, the requirements that are suspended by the 
regulation are related solely to attainment for the 1997 8-hour ozone 
standard. EPA is determining, and the commenter does not contest, that 
the area is attaining that standard and the suspension of attainment 
planning SIP submissions lasts only as long as the area is meeting that 
standard. No other requirements are suspended. The commenter is 
incorrect in arguing that the determination of attainment would delay 
implementation of measures needed for attainment of the 1997 8-hour 
ozone standard, and that it would relax SIP control measures. This 
action has no effect on control measures, or air quality, in the area. 
For example, contrary to commenter's contention, RACT requirements for 
the 1997 8-hour ozone standard (or for any other standard), are not 
suspended or delayed by this determination, nor by 40 CFR 51.918.
    In sum, no evaluation under section 110(l) is required by law, and 
even if such an evaluation were required, EPA would conclude that this 
determination of attainment would not interfere with attainment, 
reasonable further progress towards attainment, or any other applicable 
requirement of the CAA.

IV. Final Action

    EPA has determined that the Pittsburgh Area has attained the 1997 
8-hour ozone NAAQS based on 2007 to 2009 complete, quality-assured, and 
certified ambient air quality monitoring data. Data in AQS for 2010 are 
consistent with continued attainment. As provided in 40 CFR 51.918, 
this determination suspends the requirements for the Commonwealth of 
Pennsylvania to submit, for the Pittsburgh Area, an attainment 
demonstration and associated RACM, RFP plan, contingency measures, and 
any other planning requirements related to attainment of the 1997 8-
hour ozone NAAQS as long as the area continues to attain the 1997 8-
hour ozone NAAQS.
    This action is not a redesignation. The Pittsburgh Area will remain 
designated nonattainment for the 1997 8-hour ozone NAAQS until such 
time as EPA determines that the area meets the CAA requirements for 
redesignation to attainment, including an approved maintenance plan.

V. Statutory and Executive Order Reviews

    This action makes a determination of attainment based on air 
quality and results in the suspension of certain

[[Page 31239]]

Federal requirements, and does not impose additional requirements 
beyond those imposed by State law. For that reason, this proposed 
action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this determination that the Pittsburgh Area has 
attained the 1997 8-hour ozone NAAQS does not have tribal implications 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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 these actions and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 1, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This determination that the Pittsburgh Area has 
attained the1997 8-hour ozone NAAQS may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements.

    Dated: May 23, 2011,
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is 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.  52.2037, paragraph (q) is added to read as follows:


Sec.  52.2037  Control strategy plans for attainment and rate-of-
progress: Ozone.

* * * * *
    (q) Determination of attainment--In accordance with 40 CFR 51.918, 
EPA has determined that Pittsburgh-Beaver Valley 8-hour ozone 
nonattainment area has attained the 1997 8-hour ozone standard and that 
certain requirements of section 172(c) of the Clean Air Act are 
suspended as long as the nonattainment area continues to meet the 1997 
8-hour ozone NAAQS. This determination is based upon complete, quality 
assured, and certified ambient air monitoring data that show the area 
has monitored attainment of the 1997 8-hour ozone NAAQS for the 2007 to 
2009 monitoring period. Complete, quality-assured air monitoring data 
for 2010 are consistent with continued attainment. This determination 
suspends the obligation of the Commonwealth of Pennsylvania to submit 
an attainment demonstration and associated reasonably available control 
measures (RACM), a reasonable further progress (RFP) plan, contingency 
measures, and other planning requirements related to attainment of the 
1997 8-hour ozone NAAQS for the Pittsburgh Area for as long as the area 
continues to meet the 1997 8-hour ozone NAAQS. If a violation of 
the1997 8-hour ozone NAAQS is monitored in the Pittsburgh-Beaver Valley 
8-hour ozone nonattainment area, this determination shall no longer 
apply.

[FR Doc. 2011-13275 Filed 5-27-11; 8:45 am]
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