[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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