[Federal Register Volume 87, Number 51 (Wednesday, March 16, 2022)]
[Rules and Regulations]
[Pages 14799-14802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05446]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2021-0307; FRL-9587-02-R3]
Air Plan Approval; Pennsylvania; Allegheny County Area Fine
Particulate Matter Clean Data Determination
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a
determination that the Allegheny County, Pennsylvania nonattainment
area has clean data for the 2012 annual fine particulate matter
(PM2.5) national ambient air quality standard (NAAQS). This
clean data determination (CDD) is based upon quality-assured, quality-
controlled, and certified ambient air monitoring data showing the area
has attained the 2012 annual PM2.5 NAAQS based on the 2018-
2020 data available in EPA's Air Quality System (AQS) database. Based
on this clean data determination, pursuant to EPA's Clean Data Policy,
the obligation for Pennsylvania to make submissions to meet certain
Clean Air Act (CAA or the Act) attainment plan requirements for the
2012 annual PM2.5 NAAQS for the Allegheny County area is
suspended for as long as the area continues to attain the 2012 annual
PM2.5 NAAQS. Following this final action, Pennsylvania's
remaining obligation to submit contingency measures in response to
EPA's May 14, 2021 conditional approval of Allegheny County's
PM2.5 attainment plan is suspended. Additionally, the
federal implementation plan (FIP) clock, which was triggered by EPA's
March 26, 2018 Finding of Failure to Submit an attainment plan for the
2012 PM2.5 NAAQS for the Allegheny County Nonattainment
Area, is suspended for the remaining contingency measures element
conditionally approved as part of EPA's May 14, 2021 action on the
Allegheny County PM2.5 attainment plan.
DATES: This final action is effective on April 15, 2022.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2021-0307. All documents in the docket are available
for inspection at the Regulations.gov website, at https://www.regulations.gov. 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: Brian Rehn, 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) 814-2176. Mr. Rehn can also be reached
via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, it is intended to refer to the EPA.
[[Page 14800]]
Table of Contents
I. Background
II. Response to Public Comments
III. Final Action
IV. Statutory and Executive Orders Review
I. Background
On December 14, 2012, the EPA revised the level of the primary
annual PM2.5 standard, lowering the level from 15.0
micrograms per cubic meter ([micro]g/m\3\) to 12.0 [micro]g/m\3\.
Effective April 15, 2015, EPA issued area designations for the 2012
annual PM2.5 NAAQS.\1\ In that action, EPA designated the
Allegheny County, Pennsylvania area (Allegheny County Area) as a
moderate nonattainment area for the 2012 annual PM2.5
NAAQS.\2\
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\1\ See 80 FR 2206, January 15, 2015.
\2\ See 40 CFR 81.339.
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On April 6, 2018, EPA published a ``finding of failure to submit''
under section 110(k) of the CAA, finding that several areas nationwide
(including the Allegheny County Area) failed to submit required SIP
elements for the 2012 annual PM2.5 NAAQS.\3\ At that time,
Pennsylvania had failed to submit the following specific moderate area
SIP elements for the Allegheny County Area: an attainment
demonstration; control strategies analysis, including reasonably
available control measures (RACM) and reasonably available control
technology (RACT); a reasonable further progress (RFP) plan;
quantitative milestones; emission inventories, and contingency
measures. That finding of failure to submit triggered the sanctions
clock under section 179 of the CAA, as well as an obligation under
section 110(c) of the CAA for EPA to promulgate a FIP no later than two
years from the effective date of the finding, if Pennsylvania had not
submitted, and EPA did not approve, the required SIP submission.
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\3\ See 83 FR 14759, April 6, 2018.
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Pennsylvania submitted the required Allegheny County Area
PM2.5 nonattainment plan (or the Allegheny County
PM2.5 Plan, or simply the Allegheny County Plan) on
September 30, 2019. On November 1, 2019, EPA determined the submitted
PM2.5 Plan to be technically and administratively complete
(in accordance with SIP completeness criteria of CAA section 110(k) and
40 CFR part 51, appendix V), correcting the finding of failure to
submit deficiency with respect to the missing nonattainment area
planning requirements for the Area under the 2012 PM2.5
NAAQS and stopping the sanctions clock (but not the FIP clock)
triggered by EPA's April 6, 2018 finding. On May 14, 2021 (86 FR
26388), EPA approved elements of the Allegheny County Area
PM2.5 Plan, except the required contingency measures element
of the plan, which EPA conditionally approved. That final
PM2.5 Plan approval action terminated EPA's FIP obligation
for all CAA required nonattainment plan elements except for the
contingency measures element. As to the contingency measures element of
the Allegheny County Area PM2.5 Plan, EPA's May 14, 2021
conditional approval of the plan's contingency measures element
suspended EPA's FIP obligation for the duration of the conditional
approval of that element. If Pennsylvania timely submits a SIP revision
containing approvable contingency measures by May 14, 2022, upon EPA's
subsequent approval of that SIP revision, EPA's FIP obligation with
respect to the contingency measures element of the Allegheny County
Area PM2.5 Plan will be terminated.
On September 3, 2021 (86 FR 49497), EPA proposed to determine that
the Allegheny County Area is attaining the 2012 PM2.5 annual
NAAQS under the Clean Data Policy,\4\ based on the most recent three
years (2018-2020) of valid monitoring data. EPA proposed that, if
finalized, the clean data determination would suspend Pennsylvania's
obligation to submit the outstanding contingency measure element of the
attainment plan for the PM2.5 NAAQS for as long as the area
continues to attain the 2012 annual PM2.5 NAAQS. Additional
details can be found in EPA's September 3, 2021 proposed action.\5\
Finally, the September 3, 2021 action proposed to suspend the FIP clock
triggered by the March 26, 2018, Finding of Failure to Submit action
that were not halted by subsequent submittal and EPA approval of most
elements of the attainment plan.\6\
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\4\ 40 CFR 51.1015(a).
\5\ See 86 FR 49497.
\6\ See 86 FR 26388, May 14, 2021.
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II. Response to Public Comments
EPA's September 3, 2021 proposed clean data determination action
for the Allegheny County nonattainment area for the PM2.5
NAAQS opened a thirty-day public comment period, which closed on
October 4, 2021. EPA received comments from three individual
commenters. All comments received have been placed in the docket for
this action. A summary of the relevant comments received and EPA's
responses thereto are listed below.
Comment 1: The commenter stated that while they generally support
the proposed clean data determination action, they disagree with the
suspension of certain PM2.5 plan requirements related to
attainment--namely the attainment demonstration, RACM and RACT
demonstrations, emission control strategies, RFP plan, quantitative
milestones, and contingency measures. Given the lateness of
Pennsylvania's submission of the required attainment plan in 2018, the
commenter contends that Pennsylvania should adopt these requirements.
Response 1: Under EPA's longstanding Clean Data Policy
interpretation as codified for PM2.5 at 40 CFR 51.1015, a
determination that a PM2.5 nonattainment area has attained
the NAAQS suspends the state's obligation to submit to EPA those SIP
nonattainment planning elements related to attaining that NAAQS for as
long as the area continues to attain the standard. Because the purpose
of certain nonattainment plan elements is to help bring a violating
area into attainment, if data shows that the area has attained, EPA
interprets that these requirements should no longer be applicable. For
more than two decades, and for many NAAQS, EPA has consistently applied
its Clean Data Policy interpretation to attainment-related provisions
of subparts 1, 2 and 4 of part D, title I of the CAA. The Clean Data
Policy is the subject of several EPA memoranda and regulations and
numerous individual rulemakings published in the Federal Register.
These rulemakings have applied the interpretation to a broad spectrum
of ozone, fine particulate matter, lead, and carbon monoxide NAAQS--
including the 1997 and 2006 PM2.5 NAAQS. The Clean Data
Policy has been reviewed and upheld by Federal courts on a number of
occasions.\7\ The 2016 PM2.5 SIP Requirements Rule's Clean
Data Policy interpretation with respect to CAA subpart 4 aligns with
that implemented under prior fine particulate matter NAAQS.\8\ EPA has
previously articulated its Clean Data Policy
[[Page 14801]]
interpretation under CAA subpart 4 in implementing the PM10
standard.\9\
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\7\ The D.C. Circuit has upheld the Clean Data Policy
interpretation as embodied in the EPA's 8-hour ozone Implementation
Rule at 40 CFR 51.918. NRDC v. EPA, 571 F. 3d 1245 (D.C. Cir. 2009).
Other U.S. Circuit Courts of Appeals that have considered and
reviewed the EPA's Clean Data Policy interpretation have upheld it
and the rulemakings applying the EPA's interpretation. Sierra Club
v. EPA, 99 F.3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F. 3d
537 (7th Cir. 2004); Our Children's Earth Foundation v. EPA, N. 04-
73032 (9th Cir. June 28, 2005) (memorandum opinion); Latino Issues
Forum, v. EPA, Nos. 06-75831 and 08-71238 (9th Cir. March 2, 2009)
(memorandum opinion).
\8\ See 81 FR 58010 (August 24, 2016) and 40 CFR 51.1015.
\9\ See, e.g., 75 FR 27944 (May 19, 2010) (determination of
attainment of the PM10 standard in Coso Junction,
California); 71 FR 13021 (March 14, 2006) (Yuma, Arizona area); 71
FR 40023 (July 14, 2006) (Weirton, West Virginia area); 71 FR 44920
(August 8, 2006) (Rillito, Arizona area); 71 FR 63642 (October 30,
2006) (San Joaquin Valley, California area) 72 FR 14422 (March 28,
2007) (Miami, Arizona area). In the EPA's proposed and final
rulemakings determining that the San Joaquin Valley nonattainment
area attained the PM10 standard, the EPA set forth at
length its rationale for applying the Clean Data Policy to
PM10 under subpart 4. 71 FR at 63643-45. The Ninth
Circuit upheld the EPA's final rule, and specifically the EPA's
Clean Data Policy, in the context of subpart 4. Latino Issues Forum
v. EPA, supra. Nos. 06-75831 and 08-71238 (9th Cir. March 2, 2009)
(memorandum opinion).
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As described in the proposed action, the clean data determination
does not suspend other CAA nonattainment plan requirements, such as an
emissions inventory, nonattainment new source review requirements, and
certain emission reduction requirements, that are considered
independent of attainment. In any case, EPA's May 14, 2021, approval of
Allegheny County's Plan for the 2012 Annual PM2.5 NAAQS
fully approved all required moderate area nonattainment plan elements--
including nearly all elements referenced by the commenter--except for
the contingency plan, which was conditionally approved.\10\ Therefore,
those SIP-approved plan elements for the 2012 PM2.5 NAAQS
are in place and in effect, regardless of the subsequent suspension of
the obligation to submit them pursuant to this clean data
determination. In the case of the contingency measures element of the
PM2.5 plan, which EPA conditionally approved, the clean data
determination suspends the requirement to submit a SIP revision
addressing that element as long as the area continues to attain the
2012 Annual PM2.5 NAAQS.\11\ Under the Clean Data Policy and
the regulations adopted to address PM2.5, suspended plan
elements would be permanently discharged if the area is redesignated to
attainment.\12\
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\10\ See 86 FR 26388 (May 14, 2021).
\11\ Ibid.
\12\ See 40 CFR 51.1015(a).
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Comment 2: The commenter contends that because many states failed
to submit required SIP nonattainment plan elements to EPA in a timely
manner, it is important that EPA establish a FIP under the authority of
the CAA as a supplement to the SIP, and to step in to meet
nonattainment planning requirement commitments on behalf of the states,
if need be, and that the process for doing so be transparent to the
public.
Response 2: As discussed in the prior response, Pennsylvania did
submit a moderate PM2.5 attainment plan, and EPA approved
all the elements of that plan except for the contingency measures,
which were conditionally approved. Full approval also means that these
elements of the plan are in the SIP and federally enforceable. The
purpose of a CAA section 110(c)(1) FIP is to provide a backstop where a
state has failed to make a required submission or where EPA has
disapproved a state's plan or found such plan to be deficient; in this
case, where EPA has fully approved the state's plan, a FIP is not
provided for under the CAA.
Regarding the contingency measures element, EPA's conditional
approval requires the state to submit a SIP to remedy the conditional
approval of the contingency measure plan element no later than May 14,
2022.\13\ EPA's approval of the SIP revision addressing contingency
measures would terminate the FIP clock for that outstanding plan
element. However, upon the effective date of this Clean Data
Determination, the requirement to submit the contingency measures
element of the attainment SIP and EPA's FIP requirement for that
element are suspended as long as the Allegheny County Area continues to
attain the 2012 Annual PM2.5 NAAQS.\14\
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\13\ See 40 CFR 52.2023(n).
\14\ See 86 FR 26388 (May 14, 2021).
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III. Final Action
EPA is finalizing this Clean Data Determination, under the Clean
Data Policy, as proposed. Pursuant to 40 CFR 51.1015, EPA has
determined that based on 3-years of certified, complete, and valid
ambient air monitoring data between 2018 and 2020, the Allegheny County
Area has attained the 2012 annual PM2.5 NAAQS. Therefore,
Pennsylvania's obligation to submit the attainment plan elements
referenced in 40 CFR 51.1015(a)--including the conditionally approved
contingency measures element of the attainment plan--are suspended as
long as the area continues to attain the 2012 annual PM2.5
NAAQS. For the Allegheny Area, EPA has already approved into the SIP
the attainment demonstration, projected emissions inventories, RACM
(including RACT), RFP plans, motor vehicle emissions budgets, and
quantitative milestones for the Allegheny Area. The requirement to
submit the conditionally approved contingency measures element is
suspended until such time as: (1) EPA determines that the area has
violated the 2012 Annual PM2.5 NAAQS; (2) the area is
redesignated to attainment, after which such requirements are
permanently discharged; or (3) EPA determines that the area attained by
its attainment date of December 31, 2021.\15\
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\15\ See Bahr v. Regan, 6 F.4th 1059, 1083 (9th Cir. 2021).
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Although the plan submittal obligation has been suspended, this
clean data determination action does not preclude Pennsylvania from
submitting, nor the EPA from acting upon, the suspended attainment plan
element. As a result of this final action, the FIP clock triggered by
the EPA's March 26, 2018, Finding of Failure to Submit are
suspended.\16\
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\16\ See 83 FR 14759.
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This final action does not constitute a redesignation of the
Allegheny County nonattainment area to attainment for the 2012 annual
PM2.5 NAAQS under CAA section 107(d)(3) because Pennsylvania
has not yet submitted a request for redesignation or a maintenance plan
for the Area and EPA has not approved a maintenance plan for the
Allegheny County Area meeting the requirements of section 175A of the
CAA, nor has EPA determined that the Area has met the other CAA
requirements for redesignation. The classification and designation
status in 40 CFR part 81 remains Moderate nonattainment for this area
until such time as the EPA determines that Pennsylvania has met the CAA
requirements for redesignation to attainment for the Allegheny County
PM2.5 Area.
IV. Statutory and Executive Order Reviews
A. General Requirements
This action finalizes a clean data determination based on
attainment of air quality and suspends certain Federal nonattainment
planning requirements. This action imposes no new Federal requirements
and imposes no additional requirements beyond those imposed by state
law. For this reason, this final 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 under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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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 this action imposes no new requirements to apply in Indian
country located in the State, and EPA notes that this action will not
impose 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 16, 2022. 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 to determine attainment, under the Clean Data Policy,
of Allegheny County nonattainment area for the 2012 Annual
PM2.5 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, Particulate matter, Reporting and recordkeeping
requirements.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2022-05446 Filed 3-15-22; 8:45 am]
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