Rule2021-11401
Air Plan Approval; Pennsylvania; 1997 8-Hour Ozone National Ambient Air Quality Standard Second Maintenance Plan for the Erie Area
Primary source
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Published
June 1, 2021
Effective
July 1, 2021
Issuing agencies
Environmental Protection Agency
Abstract
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).
Full Text
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<title>Federal Register, Volume 86 Issue 103 (Tuesday, June 1, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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
<a href="/cdn-cgi/l/email-protection#cb85a2a8a3a4a7b8e598aeb9aea5aa8baebbaae5aca4bd"><span class="__cf_email__" data-cfemail="83cdeae0ebeceff0add0e6f1e6ede2c3e6f3e2ade4ecf5">[email protected]</span></a>.
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:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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
<bullet> 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]
BILLING CODE 6560-50-P
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