[Federal Register Volume 86, Number 103 (Tuesday, June 1, 2021)]
[Rules and Regulations]
[Pages 29205-29207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11401]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0553; FRL-10023-65-Region 3]


Air Plan Approval; Pennsylvania; 1997 8-Hour Ozone National 
Ambient Air Quality Standard Second Maintenance Plan for the Erie 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 Erie, Pennsylvania area (``Erie 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 July 1, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2020-0553. 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. 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 February 9, 2021 (86 FR 8722), EPA published a notice of 
proposed rulemaking (NPRM). In the NPRM, EPA proposed approval of 
Pennsylvania's plan for maintaining the 1997 ozone NAAQS in the Erie 
Area through November 8, 2027, in accordance with CAA section 175A. The 
formal SIP revision was submitted by PADEP on February 27, 2020.

II. Summary of SIP Revision and EPA Analysis

    On October 9, 2007 (72 FR 57207, effective November 8, 2007), EPA 
approved a redesignation request (and maintenance plan) from PADEP for 
the Erie 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 Erie 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 February 27, 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 February 9, 2021 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 
February 27, 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 Erie Area as a revision to the Pennsylvania SIP. Other specific 
requirements of PADEP's February 27, 2020 submittal and the rationale 
for EPA's proposed action are explained in the NPRM and will not be 
restated here.
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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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III. EPA's Response to Comments Received

    EPA received four comments on the February 9, 2021 NPRM but only 
one that was adverse and relevant to this action. All comments are in 
the docket for this rule action. A summary of the relevant adverse 
comment and EPA's response is provided herein.
    Comment: The commenter asserts that the LMP should not be approved 
because ``Pennsylvania identifies no actual contingency measures.'' 
According to the commenter, a ``contingency measure is supposed to be a 
known measure that can be quickly implemented by a state in order to 
prevent the violation of the NAAQS.'' The comment asserts that the 
plan's current contingency measures are defective because they 
allegedly will not be evaluated and determined until after an 
exceedance of the NAAQS has

[[Page 29206]]

occurred. The comment claims that EPA is aware Pennsylvania has a 
history of not meeting its CAA requirements on time, and that it can 
take Pennsylvania more than two years to implement a regulation, which 
would be too long to prevent a violation of the NAAQS.
    Response: The commenter asserts that Pennsylvania identifies no 
actual contingency measures because the measures are not yet 
``evaluated'' and ``determined'' and cannot be implemented before a 
violation of the NAAQS occurs. Because Pennsylvania identifies two 
regulatory and six non-regulatory contingency measures in general 
terms, EPA understands the comment's use of the term ``evaluated'' and 
``determined'' must mean something like the specific measures 
identified by PADEP have not been fully promulgated and are not in 
effect at this time. If EPA's understanding is correct, EPA agrees with 
this fact, but does not agree that this has any bearing on the 
approvability of the particular contingency measures or of the overall 
LMP.
    PADEP identifies six non-regulatory measures and two regulatory 
measures. The two regulatory measures are ``additional controls'' on 
consumer products and portable fuel containers. The six non-regulatory 
measures are: Voluntary diesel engine ``chip reflash;'' diesel retrofit 
for public or private local onroad or offroad fleets; idling reduction 
technology for Class 2 yard locomotives; idling technologies or 
strategies for truck stops, warehouses, and other freight-handling 
facilities; accelerated turnover of lawn and garden equipment; 
additional promotion of alternative fuel for home heating and 
agriculture use. As stated in the Calcagni memo, EPA's long-standing 
interpretation is that contingency measures for maintenance of the 
NAAQS are not required to be fully adopted in order to be approved. The 
commenter refers to a recent court case vacating, among other things, 
the contingency measure provisions in EPA's rule for implementing the 
2015 ozone NAAQS, Sierra Club v. EPA, No. 15-1465 (D.C. Cir. January 
29, 2021). It is possible that the commenter has conflated the 
contingency measure provisions at issue in that case, which pertained 
to attainment plans, and those at issue in this LMP, which pertain to 
maintenance plans. The contingency measure provisions for maintenance 
and attainment are found in two different sections of the CAA, with 
substantially different wording and requirements. The attainment plan 
contingency measures provisions in CAA Section 172(c)(9) require that 
the attainment plan have ``specific measures'' that can ``take effect 
in any such case without further action by the State or the 
Administrator'' if the area fails to make reasonable further progress 
or attain the NAAQS. 42 U.S.C. 7502(c)(9). Section 175A of the CAA sets 
forth the contingency measure requirements for maintenance areas. 
Section 175A(d) requires that the maintenance plan 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.'' 42 U.S.C. 7505a(d). Unlike Section 172(c)(9), there is not 
requirement under section 175A that the contingency measures be set 
forth with specificity or that they be able to take effect without 
further action by EPA or the State.
    With this statutory background in mind, EPA does not agree that the 
plan should be disapproved due to PADEP's ability to promulgate a 
contingency measure in sufficient time to avert a violation of the 
NAAQS. As noted previously, 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. 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 concern over the timeliness of the 
warning level response implementation.
    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 
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.

IV. Final Action

    EPA is approving PADEP's second maintenance plan for the Erie 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);
     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

[[Page 29207]]

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 August 2, 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 
Erie 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: May 19, 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 
an entry for ``Second Maintenance Plan for the Erie 1997 8-Hour Ozone 
Nonattainment Area'' at the end of the table to read as follows:


Sec.  52.2020   Identification of plan.

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

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                                                                State
   Name of non-regulatory SIP       Applicable geographic     submittal    EPA approval date      Additional
            revision                        area                date                              explanation
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                                                  * * * * * * *
Second Maintenance Plan for the   Erie Area...............      2/27/20   6/1/21, [insert     The Erie area
 Erie 1997 8-Hour Ozone                                                    Federal Register    consists solely
 Nonattainment Area.                                                       citation].          of Erie County.
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[FR Doc. 2021-11401 Filed 5-28-21; 8:45 am]
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