[Federal Register Volume 86, Number 54 (Tuesday, March 23, 2021)]
[Rules and Regulations]
[Pages 15414-15418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05866]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0317; FRL-10021-28-Region 3]


Air Plan Approval; Pennsylvania; 1997 8-Hour Ozone National 
Ambient Air Quality Standard Second Maintenance Plan for the State 
College Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

DATES: This final rule is effective on April 22, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2020-0317. All documents in the docket are listed on 
the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute.

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Certain other material, such as copyrighted material, is not placed on 
the internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available through https://www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Serena Nichols, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2053. Ms. Nichols can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 14, 2020 (85 FR 65008), EPA published a notice of 
proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the 
NPRM, EPA proposed approval of Pennsylvania's plan for maintaining the 
1997 ozone NAAQS in the State College Area through December 14, 2027, 
in accordance with CAA section 175A. The formal SIP revision was 
submitted by PADEP on March 10, 2020.

II. Summary of SIP Revision and EPA Analysis

    On April 30, 2004 (69 FR 23857, effective June 15, 2004), EPA 
approved a redesignation request (and maintenance plan) from PADEP for 
the State College Area. In accordance with CAA section 175A(b), at the 
end of the eighth year after the effective date of the redesignation, 
the state must also submit a second maintenance plan to ensure ongoing 
maintenance of the standard for an additional 10 years, and in South 
Coast Air Quality Management District v. EPA,\1\ the D.C. Circuit held 
that this requirement cannot be waived for areas, like the State 
College Area, that had been redesignated to attainment for the 1997 8-
hour ozone NAAQS prior to revocation and that were designated 
attainment for the 2008 ozone NAAQS. CAA section 175A sets forth the 
criteria for adequate maintenance plans. In addition, EPA has published 
longstanding guidance that provides further insight on the content of 
an approvable maintenance plan, explaining that a maintenance plan 
should address five elements: (1) An attainment emissions inventory; 
(2) a maintenance demonstration; (3) a commitment for continued air 
quality monitoring; (4) a process for verification of continued 
attainment; and (5) a contingency plan.\2\ PADEP's March 10, 2020 
submittal fulfills Pennsylvania's obligation to submit a second 
maintenance plan and addresses each of the five necessary elements.
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    \1\ 882 F.3d 1138 (D.C. Cir. 2018).
    \2\ ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (Calcagni Memo).
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    As discussed in the October 14, 2020 NPRM, EPA allows the submittal 
of a limited maintenance plan (LMP) to meet the statutory requirement 
that the area will maintain for the statutory period. Qualifying areas 
may meet the maintenance demonstration by showing that the area's 
design value \3\ is well below the NAAQS and that the historical 
stability of the area's air quality levels indicates that the area is 
unlikely to violate the NAAQS in the future. EPA evaluated PADEP's 
March 10, 2020 submittal for consistency with all applicable EPA 
guidance and CAA requirements. EPA found that the submittal met CAA 
section 175A and all CAA requirements, and proposed approval of the LMP 
for the State College Area as a revision to the Pennsylvania SIP.
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    \3\ The ozone design value for a monitoring site is the 3-year 
average of the annual fourth-highest daily maximum
    8-hour average ozone concentrations. The design value for an 
ozone nonattainment area is the highest design value of any 
monitoring site in the area.
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    Other specific requirements of PADEP's March 10, 2020 submittal and 
the rationale for EPA's proposed action are explained in the NPRM and 
will not be restated here.

III. EPA's Response to Comments Received

    EPA received comments on the October 14, 2020 NPRM from three 
commenters. All comments received are in the docket for this rulemaking 
action. A summary of the comments and EPA's responses are provided 
herein. The first commenter alleges that the plan should not be 
approved because ``PADEP's schedule is insufficient and the only two 
regulatory measures the state proposed are measures that have already 
been implemented,'' and provides specific comments in support of this 
assertion:
    Comment 1: The commenter asserts that PADEP's schedule for 
promulgating and implementing the contingency measures is not fast 
enough to prevent a violation of the NAAQS. The commenter notes that 
the Pennsylvania LMP includes a requirement that Pennsylvania evaluate 
whether additional local emission control measures are necessary when a 
monitor in the area exceeds the level of the NAAQS for two consecutive 
years. Because an area's design value uses three years of data, the 
commenter argues that this requirement will not provide sufficient time 
for the State's measures to affect air quality in the third year, 
which, if above the level of the NAAQS, would lead to a violation. The 
commenter urges EPA to disapprove the LMP because the ``schedule does 
not ensure a violation of the NAAQS does not occur by the end of the 
third year.''
    Response 1: EPA does not agree that the plan should be disapproved. 
CAA section 175A(d) mandates that a maintenance plan must contain 
``such contingency provisions as the Administrator deems necessary to 
assure that the State will promptly correct any violation of the 
standard which occurs after the redesignation of the area as an 
attainment area.'' (emphasis added). The statute therefore does not 
include any requirement that a maintenance plan's contingency measures 
prevent a violation of the NAAQS, but rather only that those selected 
measures be available to address a violation of the NAAQS after it 
already occurs. As referred to in the comment, Pennsylvania also 
elected to adopt a ``warning level response,'' which states that PADEP 
will consider adopting contingency measures if, for two consecutive 
years, the fourth highest eight-hour ozone concentrations at any 
monitor in the area are above 84 parts per billion (ppb). But this 
warning level response is not required under the CAA, and therefore we 
do not agree with the commenter that the plan should be disapproved 
based on the commenter's allegation that the warning level response's 
implementation schedule is insufficient.
    Moreover, as a general matter, we do not agree that the schedules 
for implementation of contingency provisions in the LMP are 
insufficient. As noted, the CAA provides some degree of flexibility in 
assessing a maintenance plan's contingency measures--requiring that the 
plan contain such contingency provisions ``as the Administrator deems 
necessary'' to assure that any violations of the NAAQS will be 
``promptly'' corrected. EPA's longstanding guidance for redesignations, 
the Calcagni Memo, also does not provide precise parameters for what 
strictly constitutes ``prompt'' implementation of contingency measures, 
noting that, for purposes of CAA section 175A, ``a state is not 
required to have fully adopted contingency measures that will take

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effect without further action by the state in order for the maintenance 
plan to be approved.'' Calcagni memo at 12. However, the guidance does 
state that the plan should ensure that the measures are adopted 
``expediently'' once they are triggered, and should provide ``a 
schedule and procedure for adoption and implementation, and a specific 
time limit for action by the state.'' Id. We think the State's plan, 
which provides specific lists of regulatory and non-regulatory measures 
that the state would consider after evaluating and assessing what it 
believed to be the cause of increased ozone concentrations, and the 
specific timeframes it would use to expediently implement the various 
measures, meets the requirements of CAA section 175A.
    Comment 2: The commenter questions the validity of the two 
regulatory contingency measures. The commenter claims that previously 
implemented measures cannot be used as contingency measures, calling 
into question one of the contingency measures that was previously 
approved into Pennsylvania's SIP. The comment also states that another 
contingency measure regarding portable fuel containers is already in 
effect nationwide and that PA's SIP submission does not reference the 
national regulation at 40 CFR part 59, but notes that the Pennsylvania 
portable fuel container rule was repealed in 2012, and that the State's 
submission doesn't explain what is intended by this contingency 
measure. The commenter also states that EPA may not rely on the 
proposed non-regulatory control measures because those are only ``SIP-
strengthening.''
    Response 2: The commenter asserts that Pennsylvania cannot 
implement existing controls as contingency measures. However, as 
expressly noted in the LMP, Pennsylvania states that both of the 
contingency measures the commenter objects to, will be in addition to 
existing controls.
    PADEP identifies the consumer products contingency measure as being 
``additional controls'' on consumer products. While Pennsylvania 
already has in place volatile organic compounds (VOC) limits for 
certain consumer products in its regulations at 25 Pa. Code Chapter 
130, EPA understands that PADEP would need to use its rulemaking 
process to enact additional controls on VOC emissions from consumer 
products that go beyond those already implemented under 25 Pa. Code 
Chapter 130. As the commenter points out, PADEP has not identified what 
those specific additional measures would be. EPA's interpretation of 
the CAA as stated in the Calcagni memo is that contingency measures are 
not required to be fully adopted in order to be approved. Therefore, it 
is reasonable to interpret the use of ``additional'' here as indicating 
that the State would be adopting new controls the go beyond those 
already on the books, by, e.g., establishing limits for categories or 
types of consumer products not already regulated or possibly by 
regulating more stringently those products already regulated under 25 
Pa. Code Chapter 30.
    The commenter also objects to PADEP identifying controls on 
portable fuel containers as a contingency measure. As with the consumer 
products rule, PADEP clearly contemplates enacting, if the occasion 
arises, ``additional controls'' beyond any national or state rule 
already on the books and being implemented. Those ``additional 
controls'' would, like the consumer product rule, need to establish 
limits on VOC emissions on portable fuel containers that go beyond any 
regulations currently in effect in PA. Under the national rule codified 
40 CFR 59.697, states are not precluded from adopting and enforcing any 
emission standard or limitation. EPA promulgates national regulations 
that provide a floor nationwide, but States have the legal authority 
under CAA section 116 to regulate more stringently.
    We note that no maintenance plan can be expected to cover every 
possible contingency. Greenbaum v. EPA, 370 F.3d 527 (6th Cir. 2004). 
It is possible that PADEP may not complete promulgation of the 
regulatory measures in its estimated time frame. EPA believes that 
PADEP has prudently supported its proposed regulatory contingency 
measures with six non-regulatory contingency measures. It is EPA's 
belief that the presence of the non-regulatory measures enhances the 
Commonwealth's ability to respond to remedy any future violation of the 
NAAQS.
    Comment 3: The commenter speculates that for PADEP to implement the 
non-regulatory measures it must need to identify timely sources of 
funding for those measures.
    Response 3: This comment is purely speculative. The comment does 
not provide any specific facts or analysis that would call into 
question Pennsylvania's ability to identify timely sources of funding 
for the non-regulatory contingency measures if they ever needed to be 
implemented. As we noted previously, CAA section 175A(d) requires only 
that the plan contain contingency provisions that the Administrator 
deems necessary to assure that a violation will be promptly corrected. 
EPA's analysis is that by including a suite of eight regulatory and 
non-regulatory contingency measures in the LMP, the Commonwealth 
increases its opportunities to implement such measures as might ever 
prove necessary to promptly correct a violation of the NAAQS.
    Comment 4: The second commenter claims that EPA must disapprove 
PADEP's SIP for several reasons. First, the commenter claims that PADEP 
``cannot afford to maintain an (sic) SIP that has experienced a 
significant deterioration in safety under this management plan for more 
than six months.'' Then, the commenter states additional concerns that 
``the agency may be obliged to undertake a higher maintenance program 
if the plan shows a serious deterioration in safety, due to a 
significant change in design standards, a significant increase in labor 
expenditures, or a substantial expansion of the number of workers 
employed in the SIP. See supra infra at 4-5. However, for the reasons 
set forth above, there is nothing in the applicable statute to prevent 
the agency from requiring the maintenance of an (sic) SIP with a plan 
less severe than what the State requires of a temporary SIP. See supra 
infra at 4-7.''
    Response 4: EPA believes that this comment, although referring to 
both, maintenance plans and SIPs, appears to be using those terms to 
refer to something other than the particular maintenance plan and 
revision to the Pennsylvania SIP that is the subject of this 
rulemaking. The comment also appears to reference either another 
document or section of a document (``See supra infra at 4-5,'' etc.) 
that has not been provided and does not provide context for these 
comments. EPA believes that this comment is most likely intended to 
address something other than the subject of this rulemaking, and 
therefore is not relevant, and does not require a substantive response.
    Comment 5: The third commenter claims that ``EPA should disapprove 
this SIP maintenance plan if the EPA confirms that the plan cannot meet 
the recommendations contained in Section 7 and 8.'' The commenter 
references regulations under Section 7, 8, 9, 10, and Part 2 
throughout. They also state that the public must be assured that 
Section 8 and 9 requirements can be fulfilled and the ``CAA 
requirements are blessed by the OIG.''
    Response 5: It is unclear what document the commenter is 
referencing. Additionally, the reference to the OIG, EPA understands to 
refer to the Office of Inspector General. The Office of

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Inspector General has no role in EPA's SIP approval process. EPA 
believes that this comment is most likely intended to address something 
other than the subject of this rulemaking, and therefore is not 
relevant, and does not require a substantive response.

IV. Final Action

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

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because it is not a significant regulatory 
action under Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 24, 2021. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action, approving PADEP's second maintenance plan for the 
State College Area for the 1997 ozone NAAQS, may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: March 15, 2021.
Diana Esher,
Acting Regional Administrator, Region III.

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

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart NN--Pennsylvania

0
2. In Sec.  52.2020, the table in paragraph (e)(1) is amended by adding 
the entry ``Second Maintenance Plan for the State College 1997 8-Hour 
Ozone Nonattainment Area'' at the end of the table to read as follows:


Sec.  52.2020  Identification of plan.

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

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                                                            State
    Name of non-regulatory SIP          Applicable        submittal     EPA approval date        Additional
             revision                 geographic area        date                                explanation
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                                                  * * * * * * *
Second Maintenance Plan for the    State College Area..      3/10/20  3/23/2021, [insert    The State College
 State College 1997 8-Hour Ozone                                       Federal Register      area consists
 Nonattainment Area.                                                   citation].            solely of Centre
                                                                                             County.
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[FR Doc. 2021-05866 Filed 3-22-21; 8:45 am]
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