Air Plan Approval; Pennsylvania; 1997 8-Hour Ozone National Ambient Air Quality Standard Second Maintenance Plan for the Clearfield/Indiana Area, 24507-24510 [2021-09415]
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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Rules and Regulations
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).
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 July 6, 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 may not be
challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart S—Kentucky
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
Reference, Intergovernmental relations,
Ozone, Particulate matter, Reporting
and recordkeeping requirements,
Volatile organic compounds.
Dated: April 29, 2021.
John Blevins,
Acting Regional Administrator, Region 4.
2. Section 52.920(c) is amended in
Table 2 under ‘‘Reg 2—Permit
Requirements’’ by revising the entry for
‘‘2.03’’ to read as follows:
■
§ 52.920
*
Identification of plan.
*
*
(c) * * *
*
*
For the reasons stated in the
preamble, the EPA amends 40 CFR part
52 as follows:
TABLE 2—EPA-APPROVED JEFFERSON COUNTY REGULATIONS FOR KENTUCKY
Reg
*
Federal
Register
notice
EPA approval
date
Title/subject
*
*
District
effective
date
*
Explanation
*
*
*
Reg 2—Permit Requirements
*
2.03 .........
*
*
Permit Requirements—Non-Title V Construction and Operating Permits and
Demolition/Renovation Permits.
*
*
*
*
*
*
*
*
[FR Doc. 2021–09468 Filed 5–6–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2020–0488; FRL–10022–
88–Region 3]
Air Plan Approval; Pennsylvania; 1997
8-Hour Ozone National Ambient Air
Quality Standard Second Maintenance
Plan for the Clearfield/Indiana Area
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a state
implementation plan (SIP) revision
submitted by the Commonwealth of
SUMMARY:
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*
10/23/01
66 FR
53660.
*
*
12/15/93
*
*
Except for paragraphs 1.3, 5.3 and 5.6
regarding asbestos demolition, which
were removed from the federally approved SIP by EPA on 5/7/21.
*
*
*
whose disclosure is restricted by statute.
Pennsylvania. The revision pertains to
the Commonwealth’s plan, submitted by Certain other material, such as
the Pennsylvania Department of
copyrighted material, is not placed on
Environmental Protection (PADEP), for
the internet and will be publicly
maintaining the 1997 8-hour ozone
available only in hard copy form.
national ambient air quality standard
Publicly available docket materials are
(NAAQS) (referred to as the ‘‘1997
available through https://
ozone NAAQS’’) in the Clearfield/
www.regulations.gov, or please contact
Indiana, Pennsylvania area (‘‘Clearfield/ the person identified in the FOR FURTHER
Indiana Area’’). EPA is approving these
INFORMATION CONTACT section for
revisions to the Pennsylvania SIP in
additional availability information.
accordance with the requirements of the
FOR
FURTHER INFORMATION CONTACT:
Clean Air Act (CAA).
Serena
Nichols, Planning &
DATES: This final rule is effective on
Implementation Branch (3AD30), Air &
June 7, 2021.
Radiation Division, U.S. Environmental
ADDRESSES: EPA has established a
Protection Agency, Region III, 1650
docket for this action under Docket ID
Number EPA–R03–OAR–2020–0488. All Arch Street, Philadelphia, Pennsylvania
19103. The telephone number is (215)
documents in the docket are listed on
814–2053. Ms. Nichols can also be
the https://www.regulations.gov
reached via electronic mail at
website. Although listed in the index,
Nichols.Serena@epa.gov.
some information is not publicly
available, e.g., confidential business
SUPPLEMENTARY INFORMATION:
information (CBI) or other information
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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Rules and Regulations
I. Background
On February 9, 2021 (86 FR 8729),
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 Clearfield/Indiana Area
through April 20, 2029, 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 March 19, 2009 (74 FR 11674,
effective April 20, 2009), EPA approved
a redesignation request (and
maintenance plan) from PADEP for the
Clearfield/Indiana 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 Clearfield/Indiana
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.
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
1 882
F.3d 1138 (D.C. Cir. 2018).
for Processing Requests to
Redesignate Areas to Attainment,’’ Memorandum
from John Calcagni, Director, Air Quality
Management Division, September 4, 1992 (Calcagni
Memo).
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
2 ‘‘Procedures
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16:08 May 06, 2021
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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 Clearfield/Indiana 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.
III. EPA’s Response to Comments
Received
EPA received one comment on the
February 9, 2021 NPRM. This comment
is in the docket for this rulemaking
action. A summary of the comment and
EPA’s response are 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 current
contingency measures are defective
because they allegedly will not be
evaluated and determined until after an
exceedance of the NAAQS has 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 nonregulatory 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
is the highest design value of any monitoring site
in the area.
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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 no 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
alleged inability to promulgate a
E:\FR\FM\07MYR1.SGM
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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Rules and Regulations
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 Pennsylvania’s
plan, which provides specific lists of
regulatory and non-regulatory measures
that Pennsylvania would consider after
evaluating and assessing what it
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16:08 May 06, 2021
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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 Clearfield/
Indiana 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
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
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24509
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 July 6, 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
Clearfield/Indiana 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.
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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Rules and Regulations
Dated: April 26, 2021.
Diana Esher,
Acting Regional Administrator, Region III.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
For the reasons stated in the
preamble, the EPA amends 40 CFR part
52 as follows:
■
1. The authority citation for part 52
continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
‘‘Second Maintenance Plan for the
Clearfield/Indiana 1997 8-Hour Ozone
Nonattainment Area’’ at the end of the
table to read as follows:
§ 52.2020
*
Subpart NN—Pennsylvania
2. In § 52.2020, the table in paragraph
(e)(1) is amended by adding the entry
Identification of plan.
*
*
(e) * * *
(1) * * *
*
*
■
Applicable
geographic
area
Name of non-regulatory SIP revision
*
*
Second Maintenance Plan for the
Clearfield/Indiana 1997 8-Hour Ozone
Nonattainment Area.
*
*
*
*
*
Clearfield/Indiana
Area.
*
[FR Doc. 2021–09415 Filed 5–6–21; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MB Docket No. 21–55; RM–11880; DA 21–
476; FR ID 24746]
Television Broadcasting Services
Kearney, Nebraska
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
On February 12, 2021, the
Media Bureau, Video Division (Bureau)
issued a notice of proposed rulemaking
in response to a petition for rulemaking
filed by KHGI Licensee, LLC (Licensee),
the licensee of KHGI, channel 13 (ABC),
Kearney, Nebraska, requesting the
substitution of channel 18 for channel
13 at Kearney in the DTV Table of
Allotments. For the reasons set forth in
the Report and Order referenced below,
the Bureau amends FCC regulations to
substitute channel 18 for channel 13 at
Kearney.
DATES: Effective May 7, 2021.
FOR FURTHER INFORMATION CONTACT:
Joyce Bernstein, Media Bureau, at (202)
418–1647 or Joyce.Bernstein@fcc.gov.
SUPPLEMENTARY INFORMATION: The
proposed rule was published at 86 FR
12161 on March 2, 2021. The Licensee
filed comments in support of the
petition reaffirming its commitment to
applying for channel 18. No other
comments were received. In support,
the Licensee stated that the channel
SUMMARY:
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16:08 May 06, 2021
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State submittal
date
EPA approval date
Additional explanation
*
2/27/20
*
5/7/21, [insert Federal Register citation].
*
*
The Clearfield/Indiana area consists of
Clearfield and Indiana Counties.
substitution will permit KHGI to better
serve its viewers, who have experienced
reception problems with VHF channel
13. The Bureau believes the public
interest would be served by the channel
substitution because it will result in
improved service. In addition, operation
on channel 18 will not result in any
predicted loss of service and will
increase the number of people served.
This is a synopsis of the
Commission’s Report and Order, MB
Docket No. 21–55; RM–11880; DA 21–
476, adopted April 26, 2021, and
released April 26, 2021. The full text of
this document is available for download
at https://www.fcc.gov/edocs. To request
materials in accessible formats for
people with disabilities (braille, large
print, electronic files, audio format),
send an email to fcc504@fcc.gov or call
the Consumer & Governmental Affairs
Bureau at 202–418–0530 (voice), 202–
418–0432 (tty).
This document does not contain
information collection requirements
subject to the Paperwork Reduction Act
of 1995, Public Law 104–13. In addition,
therefore, it does not contain any
proposed information collection burden
‘‘for small business concerns with fewer
than 25 employees,’’ pursuant to the
Small Business Paperwork Relief Act of
2002, Public Law 107–198, see 44 U.S.C.
3506(c)(4). Provisions of the Regulatory
Flexibility Act of 1980, 5 U.S.C. 601–
612, do not apply to this proceeding.
The Commission will send a copy of
this Report and Order in a report to be
sent to Congress and the Government
Accountability Office pursuant to the
Congressional review Act, see 5 U.S.C.
801(a)(1)(A).
List of Subjects in 47 CFR Part 73
Television.
PO 00000
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Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.
Final Rule
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 73 as
follows:
PART 73—RADIO BROADCAST
SERVICE
1. The authority citation for part 73
continues to read as follows:
■
Authority: 47 U.S.C. 154, 155, 301, 303,
307, 309, 310, 334, 336, 339.
2. In § 73.622, in paragraph (i), amend
the Post-Transition Table of DTV
Allotments, under Nebraska, by revising
the entry for Kearney to read as follows:
■
§ 73.622 Digital television table of
allotments.
*
*
*
(i) * * *
*
*
Community
*
*
Channel No.
*
*
*
*
*
NEBRASKA
*
*
*
Kearney ................................
*
*
*
18
*
[FR Doc. 2021–09692 Filed 5–6–21; 8:45 am]
BILLING CODE 6712–01–P
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]]>Agencies
[Federal Register Volume 86, Number 87 (Friday, May 7, 2021)]
[Rules and Regulations]
[Pages 24507-24510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09415]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2020-0488; FRL-10022-88-Region 3]
Air Plan Approval; Pennsylvania; 1997 8-Hour Ozone National
Ambient Air Quality Standard Second Maintenance Plan for the
Clearfield/Indiana Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
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 Clearfield/Indiana, Pennsylvania area (``Clearfield/Indiana
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 June 7, 2021.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2020-0488. 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:
[[Page 24508]]
I. Background
On February 9, 2021 (86 FR 8729), 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
Clearfield/Indiana Area through April 20, 2029, 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 March 19, 2009 (74 FR 11674, effective April 20, 2009), EPA
approved a redesignation request (and maintenance plan) from PADEP for
the Clearfield/Indiana 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
Clearfield/Indiana 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 Clearfield/Indiana 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 one comment on the February 9, 2021 NPRM. This comment
is in the docket for this rulemaking action. A summary of the comment
and EPA's response are 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 current
contingency measures are defective because they allegedly will not be
evaluated and determined until after an exceedance of the NAAQS has
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 no
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 alleged inability to
promulgate a
[[Page 24509]]
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 Pennsylvania's plan,
which provides specific lists of regulatory and non-regulatory measures
that Pennsylvania 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
Clearfield/Indiana 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 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 July 6, 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
Clearfield/Indiana 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.
[[Page 24510]]
Dated: April 26, 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 Clearfield/Indiana 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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Name of non-regulatory SIP Applicable State
revision geographic area submittal date EPA approval date Additional explanation
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* * * * * * *
Second Maintenance Plan for the Clearfield/Indiana 2/27/20 5/7/21, [insert The Clearfield/Indiana
Clearfield/Indiana 1997 8-Hour Area. Federal Register area consists of
Ozone Nonattainment Area. citation]. Clearfield and Indiana
Counties.
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[FR Doc. 2021-09415 Filed 5-6-21; 8:45 am]
BILLING CODE 6560-50-P
