[Federal Register: May 8, 2007 (Volume 72, Number 88)]
[Proposed Rules]
[Page 26046-26057]
[DOCID:fr08my07-32]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2006-0862; FRL-8310-1]

Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Redesignation of the Tioga County Ozone Nonattainment
Area to Attainment and Approval of the Area's Maintenance Plan and 2002
Base Year Inventory

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a redesignation request and State
Implementation Plan (SIP) revisions submitted by the Commonwealth of
Pennsylvania. The Pennsylvania Department of Environmental Protection
(PADEP) is requesting that the Tioga County ozone nonattainment area
(Tioga Area) be redesignated as attainment for the 8-hour ozone
national ambient air quality standard (NAAQS). EPA is proposing to
approve the ozone redesignation request for Tioga Area. In conjunction
with its redesignation request, PADEP submitted a SIP revision
consisting of a maintenance

plan for Tioga Area that provides for continued attainment of the 8-
hour ozone NAAQS for at least 10 years after redesignation. EPA is
proposing to make a determination that the Tioga Area has attained the
8-hour ozone NAAQS, based upon three years of complete, quality-assured
ambient air quality ozone monitoring data for 2003-2005. EPA's proposed
approval of the 8-hour ozone redesignation request is based on its
determination that the Tioga Area has met the criteria for
redesignation to attainment specified in the Clean Air Act (CAA). In
addition, PADEP submitted a 2002 base year inventory for the Tioga Area
which EPA is proposing to approve as a SIP revision. EPA is also
providing information on the status of its adequacy determination for
the motor vehicle emission budgets (MVEBs) that are identified in the
Tioga Area maintenance plan for purposes of transportation conformity,
which EPA is also proposing to approve. EPA is proposing approval of
the redesignation request, and the maintenance plan and the 2002 base
year inventory SIP revisions in accordance with the requirements of the
CAA.

DATES: Written comments must be received on or before June 7, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0862 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for

submitting comments.
    B. E-mail<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2006-0862, Linda Miller, Acting Chief, Air
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2006-0862. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at http://www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.

The http://www.regulations.gov Web site is an ``anonymous access'' system,

which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov,

your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some

information is not publicly available, i.e., 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 either electronically in http://www.regulations.gov or

in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Pennsylvania Department of Environmental
Protection, Bureau of Air Quality, P.O. Box 8468, Harrisburg,
Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Rose Quinto,<PHONE_NUMBER>, or by e-
mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'',
``us'', or ``our'' is used, we mean EPA.

Table of Contents

I. What Are the Actions EPA Is Proposing to Take?
II. What Is the Background for These Proposed Actions?
III. What Are the Criteria for Redesignation to Attainment?
IV. Why Is EPA Taking These Actions?
V. What Would Be the Effect of These Actions?
VI. What Is EPA's Analysis of the State's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and
Identified in the Maintenance Plan for the Tioga Area Adequate and
Approvable?
VIII. Proposed Action
IX. Statutory and Executive Order Reviews

I. What Are the Actions EPA Is Proposing to Take?

    On September 28, 2006, PADEP formally submitted a request to
redesignate the Tioga Area from nonattainment to attainment of the 8-
hour NAAQS for ozone. Concurrently, on September 28, 2006, PADEP
submitted a maintenance plan for the Tioga Area as a SIP revision to
ensure continued attainment for at least 10 years after redesignation.
PADEP also submitted a 2002 base year inventory as a SIP revision on
September 28, 2006 and a supplement submittal on November 14, 2006. The
Tioga Area is currently designated as a basic 8-hour ozone
nonattainment area. EPA is proposing to determine that the Tioga Area
has attained the 8-hour ozone NAAQS and that it has met the
requirements for redesignation pursuant to section 107(d)(3)(E) of the
CAA. EPA is, therefore, proposing to approve the redesignation request
to change the designation of the Tioga Area from nonattainment to
attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve
the Tioga Area maintenance plan as a SIP revision, such approval being
one of the CAA criteria for redesignation to attainment status. The
maintenance plan is designed to ensure continued attainment in the
Tioga Area for the next ten years. EPA is also proposing to approve the
2002 base year inventory for the Tioga Area as a SIP revision.
Additionally, EPA is announcing its action on the adequacy process for
the MVEBs identified in the Tioga Area maintenance plan, and proposing
to approve the MVEBs identified for volatile organic compounds (VOC)
and nitrogen oxides (NOX) for transportation conformity
purposes.

II. What Is the Background for These Proposed Actions?

A. General

    Ground-level ozone is not emitted directly by sources. Rather,
emissions of NOX and VOC react in the presence of sunlight
to form ground-level ozone. The air pollutants NOX and VOC
are referred to as precursors of ozone. The CAA establishes a process
for air quality management through the attainment and maintenance of
the NAAQS.
    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour ozone standard. EPA

designated, as nonattainment, any area violating the 8-hour ozone NAAQS
based on the air quality data for the three years of 2001-2003. These
were the most recent three years of data at the time EPA designated 8-
hour areas. The Tioga Area was designated as basic 8-hour ozone
nonattainment status in a Federal Register notice signed on April 15,
2004 and published on April 30, 2004 (69 FR 23857), based on its
exceedance of the 8-hour health-based standard for ozone during the
years 2001-2003.
    On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to
revoke the 1-hour ozone NAAQS in the Tioga Area (as well as most other
areas of the country) effective June 15, 2005. See, 40 CFR 50.9(b); 69
FR at 23966 (April 30, 2004); 70 FR 44470 (August 3, 2005).
    However, on December 22, 2006, the U.S. Court of Appeals for the
District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule
for the 8-hour Ozone Standard, (69 FR 23951, April 30, 2004), See,
South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C.
Cir. 2006) (hereafter ``South Coast.''). The Court held that certain
provisions of EPA's Phase 1 Rule were inconsistent with the
requirements of the Clean Air Act. The Court rejected EPA's reasons for
implementing the 8-hour standard in nonattainment areas under subpart 1
in lieu of subpart 2 of Title I, Part D of the Act. The Court also held
that EPA improperly failed to retain four measures required for 1-hour
nonattainment areas under the anti-backsliding provisions of the
regulations: (1) Nonattainment area New Source Review (NSR)
requirements based on an area's 1-hour nonattainment classification;
(2) Section 185 penalty fees for 1-hour severe or extreme nonattainment
areas; (3) measures to be implemented pursuant to section 172(c)(9) or
182(c)(9) of the Act, on the contingency of an area not making
reasonable further progress toward attainment of the 1-hour NAAQS, or
for failure to attain that NAAQS; and (4) the certain conformity
requirements for certain types of federal actions. The Court upheld
EPA's authority to revoke the 1-hour standard provided there were
adequate anti-backsliding provisions. Elsewhere in this document,
mainly in section VI.B. ``The Tioga Area Has Met All Applicable
Requirements Under Section 110 and Part D of the CAA and Has Fully
Approved SIP under Section 110(k) of the CAA,'' EPA discusses its
rationale why the decision in South Coast is not an impediment to
redesignating the Tioga Area to attainment of the 8-hour ozone NAAQS.
    The CAA, Title I, Part D, contains two sets of provisions--subpart
1 and subpart 2--that address planning and control requirements for
nonattainment areas. Subpart 1 (which EPA refers to as ``basic''
nonattainment) contains general, less prescriptive requirements for
nonattainment areas for any pollutant--including ozone--governed by a
NAAQS. Subpart 2 (which EPA refers to as ``classified'' nonattainment)
provides more specific requirements for ozone nonattainment areas. Some
8-hour ozone nonattainment areas are subject only to the provisions of
subpart 1. Other areas are also subject to the provisions of subpart 2.
Under EPA's 8-hour ozone implementation rule, an area was classified
under subpart 2 based on its 8-hour ozone design value (i.e., the 3-
year average annual fourth-highest daily maximum 8-hour average ozone
concentration), if it had a 1-hour design value at or above 0.121 ppm
(the lowest 1-hour design value in the CAA for subpart 2 requirements).
All other areas are covered under subpart 1, based upon their 8-hour
design values. In 2004, Tioga Area was designated a basic 8-hour ozone
nonattainment area based upon air quality monitoring data from 2001-
2003, and therefore, is subject to the requirements of subpart 1 of
Part D.
    Under 40 CFR part 50, the 8-hour ozone standard is attained when
the 3-year average of the annual fourth-highest daily maximum 8-hour
average ambient air quality ozone concentrations is less than or equal
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR
23857, (April 30, 2004) for further information. Ambient air quality
monitoring data for the 3-year period must meet data completeness
requirements. The data completeness requirements are met when the
average percent of days with valid ambient monitoring data is greater
than 90 percent, and no single year has less than 75 percent data
completeness as determined in Appendix I of 40 CFR part 50. The ozone
monitoring data from the 3-year period of 2003-2005 indicates that the
Tioga Area has a design value of 0.081 ppm. Therefore, the ambient
ozone data for the Tioga Area indicates no violations of the 8-hour
ozone standard.

B. The Tioga Area

    The Tioga Area consists of Tioga County, Pennsylvania. Prior to its
designation as an 8-hour ozone nonattainment area, Tioga Area was an
attainment/unclassifiable area for the 1-hour ozone nonattainment
NAAQS. See 56 FR 56694 (November 6, 1991).
    On September 28, 2006, PADEP requested that the Tioga Area be
redesignated to attainment for the 8-hour ozone standard. The
redesignation request included 3 years of complete, quality-assured
data for the period of 2003-2005, indicating that the 8-hour NAAQS for
ozone had been achieved in the Tioga Area. The data satisfies the CAA
requirements when the 3-year average of the annual fourth-highest daily
maximum 8-hour average ozone concentration (commonly referred to as the
area's design value) is less than or equal to 0.08 ppm (i.e., 0.084 ppm
when rounding is considered). Under the CAA, a nonattainment area may
be redesignated if sufficient complete, quality-assured data is
available to determine that the area has attained the standard and the
area meets the other CAA redesignation requirements set forth in
section 107(d)(3)(E).

III. What Are the Criteria for Redesignation to Attainment?

    The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA,
allows for redesignation, providing that:
    (1) EPA determines that the area has attained the applicable NAAQS;
    (2) EPA has fully approved the applicable implementation plan for
the area under section 110(k);
    (3) EPA determines that the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from
implementation of the applicable SIP and applicable Federal air
pollutant control regulations and other permanent and enforceable
reductions;
    (4) EPA has fully approved a maintenance plan for the area as
meeting the requirements of section 175A; and
    (5) The State containing such area has met all requirements
applicable to the area under section 110 and Part D.
    EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
     ``Ozone and Carbon Monoxide Design Value Calculations'',
Memorandum from Bill Laxton, June 18, 1990;
     ``Maintenance Plans for Redesignation of Ozone and Carbon
Monoxide Nonattainment Areas,'' Memorandum from G. T. Helms, Chief,

Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
     ``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
     ``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
     ``State Implementation Plan (SIP) Actions Submitted in
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John
Calcagni Director, Air Quality Management Division, October 28, 1992;
     ``Technical Support Documents (TSD's) for Redesignation
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17,
1993;
     ``State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On
or After November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17,
1993;
     Memorandum from D. Kent Berry, Acting Director, Air
Quality Management Division, to Air Division Directors, Regions 1-10,
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and
CO Nonattainment Areas,'' dated November 30, 1993;
     ``Part D New Source Review (Part D NSR) Requirements for
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
     ``Reasonable Further Progress, Attainment Demonstration,
and Related Requirements for Ozone Nonattainment Areas Meeting the
Ozone National Ambient Air Quality Standard,'' Memorandum from John S.
Seitz, Director, Office of Air Quality Planning and Standards, May 10,
1995.

IV. Why Is EPA Taking These Actions?

    On September 28, 2006, PADEP requested redesignation of the Tioga
Area to attainment for the 8-hour ozone standard. On September 28,
2006, PADEP submitted a maintenance plan for the Tioga Area as a SIP
revision to assure continued attainment at least 10 years after
redesignation. EPA has determined that the Tioga Area has attained the
standard and has met the requirements for redesignation set forth in
section 107(d)(3)(E). PADEP also submitted a 2002 base year inventory
concurrently with its maintenance plan as a SIP revision and
supplemented on November 14, 2006.

V. What Would Be the Effect of These Actions?

    Approval of the redesignation request would change the designation
of the Tioga Area from nonattainment to attainment for the 8-hour ozone
NAAQS found at 40 CFR part 81. It would also incorporate into the
Pennsylvania SIP a 2002 base year inventory and a maintenance plan
ensuring continued attainment of the 8-hour ozone NAAQS in the Tioga
Area for the next 10 years. The maintenance plan includes contingency
measures to remedy any future violations of the 8-hour NAAQS (should
they occur), and identifies the MVEBs for NOX and VOC for
transportation conformity purposes for the years 2004, 2009 and 2018.
These motor vehicle emissions (2004) and MVEBs (2009 and 2018) are
displayed in the following table:

     Table 1.--Motor Vehicle Emissions Budgets in Tons Per Day (tpd)
------------------------------------------------------------------------
                         Year                             NOX      VOC
------------------------------------------------------------------------
2004..................................................      4.8      3.0
2009..................................................      3.4      2.2
2018..................................................      1.6      1.3
------------------------------------------------------------------------

VI. What is EPA's Analysis of the State's Request?

    EPA is proposing to determine that Tioga Area has attained the 8-
hour ozone standard and that all other redesignation criteria have been
met. The following is a description of how PADEP's September 28, 2006
submittal satisfies the requirements of section 107(d)(3)(E) of the
CAA.

A. The Tioga Area Has Attained the 8-Hour Ozone NAAQS

    EPA is proposing to determine that the Tioga Area has attained the
8-hour ozone NAAQS. For ozone, an area may be considered to be
attaining the 8-hour ozone NAAQS if there are no violations, as
determined in accordance with 40 CFR 50.10 and Appendix I of part 50,
based on three complete and consecutive calendar years of quality-
assured air quality monitoring data. To attain this standard, the
design value, which is the 3-year average of the fourth-highest daily
maximum 8-hour average ozone concentrations, measured at each monitor
within the area over each year must not exceed the ozone standard of
0.08 ppm. Based on the rounding convention described in 40 CFR part 50,
Appendix I, the standard is attained if the design value is 0.084 ppm
or below. The data must be collected and quality-assured in accordance
with 40 CFR part 58, and recorded in the Air Quality System (AQS). The
monitors generally should have remained at the same location for the
duration of the monitoring period required for demonstrating
attainment.
    In the Tioga Area, there is one monitor that measures air quality
with respect to ozone. As part of its redesignation request,
Pennsylvania submitted ozone monitoring data for the years 2003-2005
(the most recent three years of data available as of the time of the
redesignation request) for the Tioga Area. This data has been quality
assured and is recorded in AQS. The fourth-high 8-hour daily maximum
concentrations, along with the three-year average, are summarized in
Table 2.

 Table 2.--Tioga County Nonattainment Area Fourth Highest 8-Hour Average
            Values; Tioga County Monitor, AQS ID 42-117-4000
------------------------------------------------------------------------
                                              Annual 4th  High Reading
                   Year                                 (ppm)
------------------------------------------------------------------------
2003......................................  0.084
2004......................................  0.079
2005......................................  0.080
------------------------------------------------------------------------
    The average for the 3-year period 2003 through 2005 is 0.081 ppm
------------------------------------------------------------------------

    The air quality data for 2003-2005 show that the Tioga Area has
attained the standard with a design value of 0.081 ppm. The data
collected at the Tioga Area monitor satisfies the CAA requirement that
the 3-year average of the annual fourth-highest daily maximum 8-hour
average ozone concentration is less than or equal to 0.08 ppm. PADEP's
request for redesignation for the Tioga Area indicates that the data
was quality assured in accordance with 40 CFR part 58. PADEP uses the
AQS as the permanent database to maintain its data and quality assures
the data transfers and content for accuracy. In addition, as discussed
below with respect to the maintenance plan, PADEP has committed to
continue monitoring in accordance with 40 CFR part 58. In summary, EPA
has determined that the data submitted by Pennsylvania and taken from
AQS indicates that Tioga Area has attained the 8-hour ozone NAAQS.

B. The Tioga Area Has Met All Applicable Requirements Under Section 110
and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k)
of the CAA

    EPA has determined that the Tioga Area has met all SIP requirements
applicable for purposes of this redesignation under section 110 of the
CAA (General SIP Requirements) and that it meets all applicable SIP
requirements under Part D of Title I of the CAA, in accordance with
section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP
is fully approved with respect to all requirements applicable for
purposes of redesignation in accordance with section 107(d)(3)(E)(ii).
In making these proposed determinations, EPA ascertained what
requirements are applicable to the area and determined that the
applicable portions of the SIP meeting these requirements are fully
approved under section 110(k) of the CAA. We note that SIPs must be
fully approved only with respect to applicable requirements.
    The September 4, 1992 Calcagni memorandum (``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) with respect to the timing of applicable requirements.
Under this interpretation, to qualify for redesignation, States
requesting redesignation to attainment must meet only the relevant CAA
requirements that come due prior to the submittal of a complete
redesignation request. See also, Michael Shapiro memorandum, September
17, 1993, and 60 FR 12459, 12465-66, (March 7, 1995) (redesignation of
Detroit-Ann Arbor). Applicable requirements of the CAA that come due
subsequent to the area's submittal of a complete redesignation request
remain applicable until a redesignation is approved, but are not
required as a prerequisite to redesignation. Section 175A(c) of the
CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also, 68 FR
25424, 25427 (May 12, 2003) (redesignation of St. Louis).
    This action also sets forth EPA's views on the potential effect of
the Court's ruling in South Coast on this redesignation action. For the
reasons set forth below, EPA does not believe that the Court's ruling
alters any requirements relevant to this redesignation action so as to
preclude redesignation, and does not prevent EPA from finalizing this
redesignation. EPA believes that the Court's decision, as it currently
stands or as it may be modified based upon any petition for rehearing
that has been filed, imposes no impediment to moving forward with
redesignation of this area to attainment, because in either
circumstance redesignation is appropriate under the relevant
redesignation provisions of the Act and longstanding policies regarding
redesignation requests.
1. Section 110 General SIP Requirements
    Section 110(a)(2) of Title I of the CAA delineates the general
requirements for a SIP, which include enforceable emissions limitations
and other control measures, means, or techniques, provisions for the
establishment and operation of appropriate devices necessary to collect
data on ambient air quality, and programs to enforce the limitations.
The general SIP elements and requirements set forth in section
110(a)(2) include, but are not limited to, the following:
     Submittal of a SIP that has been adopted by the State
after reasonable public notice and hearing;
     Provisions for establishment and operation of appropriate
procedures needed to monitor ambient air quality;
     Implementation of a source permit program; provisions for
the implementation of Part C requirement (Prevention of Significant
Deterioration (PSD));
     Provisions for the implementation of Part D requirements
for New Source Review (NSR) permit programs;
     Provisions for air pollution modeling; and
     Provisions for public and local agency participation in
planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a State from significantly contributing to air
quality problems in another State. To implement this provision, EPA has
required certain States to establish programs to address transport of
air pollutants in accordance with the NOX SIP Call, October
27, 1998 (63 FR 57356), amendments to the NOX SIP Call, May
14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean
Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the
section 110(a)(2)(D) requirements for a State are not linked with a
particular nonattainment area's designation and classification in that
State. EPA believes that the requirements linked with a particular
nonattainment area's designation and classifications are the relevant
measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a State regardless of the designation of any one particular
area in the State.
    Thus, we do not believe that these requirements are applicable
requirements for purposes of redesignation. In addition, EPA believes
that the other section 110 elements not connected with nonattainment
plan submissions and not linked with an area's attainment status are
not applicable requirements for purposes of redesignation. The Tioga
Area will still be subject to these requirements after it is
redesignated. The section 110 and Part D requirements, which are linked
with a particular area's designation and classification, are the
relevant measures to evaluate in reviewing a redesignation request.
This policy is consistent with EPA's existing policy on applicability
of conformity (i.e., for redesignations) and oxygenated fuels
requirement. See, Reading, Pennsylvania, proposed and final rulemakings
(61 FR 53174-53176, October 10, 1996), (62 FR 24816, May 7, 1997);
Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7,
1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7,
1995). See also, the discussion on this issue in the Cincinnati
redesignation (65 FR at 37890, June 19, 2000), and in the Pittsburgh
redesignation (66 FR at 50399, October 19, 2001). Similarly, with
respect to the NOX SIP Call rules, EPA noted in its Phase 1
Final Rule to Implement the 8-hour Ozone NAAQS, that the NOX
SIP Call rules are not ``an `applicable requirement' for purposes of
section 110(l) because the NOX rules apply regardless of an
area's attainment or nonattainment status for the 8-hour (or the 1-
hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).
    EPA believes that section 110 elements not linked to the area's
nonattainment status are not applicable for purposes of redesignation.
Any section 110 requirements that are linked to the Part D requirements
for 8-hour ozone nonattainment areas are not yet due, because, as we
explain later in this notice, no Part D requirements applicable for
purposes of redesignation under the 8-hour standard became due prior to
submission of the redesignation request.
    Because the Pennsylvania SIP satisfies all of the applicable
general SIP elements and requirements set forth in section 110(a)(2),
EPA concludes that Pennsylvania has satisfied the criterion of section
107(d)(3)(E) regarding section 110 of the Act.

2. Part D Nonattainment Area Requirements Under the 1-Hour and 8-Hour
Standards
    The Tioga Area was designated a basic nonattainment area for the 8-
hour ozone standard. Sections 172-176 of the CAA, found in subpart 1 of
Part D, set forth the basic nonattainment requirements for all
nonattainment areas. As discussed previously, because the Tioga Area
was designated unclassifiable/attainment under the 1-hour standard, and
was never designated nonattainment for the 1-hour standard, there are
no outstanding 1-hour nonattainment area requirements it would be
required to meet. Thus, we find that the Court's ruling does not result
in any additional 1-hour requirements for purposes of redesignation.
    With respect to the 8-hour standard, EPA notes that the Court's
ruling rejected EPA's reasons for classifying areas under subpart 1 for
the 8-hour standard, and remanded that matter to the Agency.
Consequently, it is possible that this area could, during a remand to
EPA, be reclassified under subpart 2. Although any future decision by
EPA to classify this under subpart 2 might trigger additional future
requirements for the area, EPA believes that this does not mean that
redesignation of the area cannot now go forward. This belief is based
upon (1) EPA's longstanding policy of evaluating requirements in
accordance with the requirements due at the time the request is
submitted; and (2) consideration of the inequity of applying
retroactively any requirements that might in the future be applied.
    At the time the redesignation request was submitted, the Tioga Area
was classified under subpart 1 and was obligated to meet subpart 1
requirements. Under EPA's longstanding interpretation of section
107(d)(3)(E) of the Clean Air Act, to qualify for redesignation, states
requesting redesignation to attainment must meet only the relevant SIP
requirements that came due prior to the submittal of a complete
redesignation request. September 4, 1992 Calcagni memorandum
(``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division). See also, Michael Shapiro Memorandum, September
17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (Redesignation of
Detroit-Ann Arbor); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004)
(which upheld this interpretation); 68 FR 25418, 25424, 25427 (May 12,
2003) (redesignation of St. Louis).
    Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted. The D.C. Circuit recognized the inequity in such retroactive
rulemaking. See, Sierra Club v. Whitman, 285 F. 3d 63 (D.C. Cir. 2002),
in which the D.C. Circuit upheld a District Court's ruling refusing to
make retroactive an EPA determination that was past the statutory due
date. Such a determination would have resulted in the imposition of
additional requirements on the area. The Court stated: ``Although EPA
failed to make the nonattainment determination within the statutory
time frame, Sierra Club's proposed solution only makes the situation
worse. Retroactive relief would likely impose large costs on the
States, which would face fines and suits for not implementing air
pollution prevention plan in 1997, even though they were not on notice
at the time.'' Id. at 68. Similarly, here it would be unfair to
penalize the area by applying to it for purposes of resedignation
additional SIP requirements under subpart 2 that were not in effect at
the time it submitted its redesignation request.
    With respect to the 8-hour standard, EPA proposes to determine that
Pennsylvania's SIP meets all applicable SIP requirements under Part D
of the CAA, because no 8-hour ozone standard Part D requirements
applicable for purposes of redesignation became due prior to submission
of the redesignation request for the Tioga Area. Because the
Commonwealth submitted a complete redesignation request for the Tioga
Area prior to the deadline for any submissions required under the 8-
hour standard, we have determined that the Part D requirements do not
apply to the Tioga Area for the purposes of redesignation.
    In addition to the fact that no Part D requirements applicable
under the 8-hour standard became due prior to submission of the
redesignation request, EPA believes it is reasonable to interpret the
general conformity and NSR requirements of Part D as not requiring
approval prior to redesignation.
    With respect to section 176, Conformity Requirements, section
176(c) of the CAA requires States to establish criteria and procedures
to ensure that Federally supported or funded projects conform to the
air quality planning goals in the applicable SIP. The requirement to
determine conformity applies to transportation plans, programs, and
projects developed, funded or approved under Title 23 U.S.C. and the
Federal Transit Act (``transportation conformity'') as well as to all
other Federally supported or funded projects (``general conformity'').
State conformity revisions must be consistent with Federal conformity
regulations relating to consultation, enforcement and enforceability
that the CAA required EPA to promulgate.
    EPA believes it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) since State conformity rules
are still required after redesignation and Federal conformity rules
apply where State rules have not been approved. See, Wall v. EPA, 265
F. 3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. See
also, 60 FR 62748 (December 7, 1995).
    In the case of the Tioga Area, EPA has also determined that before
being redesignated, the Tioga Area need not comply with the requirement
that a NSR program be approved prior to redesignation. The Part D NSR
SIP revision does not come due until June 15, 2007, see, 70 FR 71683,
November 29, 2005, and thus is not an applicable requirement with
respect to redesignation. Additionally, Pennsylvania's preconstruction
permitting program regulations in Chapter 127.200-217 of the
Pennsylvania Code (approved into the SIP at 40 CFR 52.2020(c)), apply
only to ozone nonattainment area sources that are located in areas
classified as marginal or worse, i.e., to subpart 2 nonattainment
areas. Pennsylvania's NSR regulations do not apply to sources in
nonattainment areas classified as basic nonattainment under subpart 1.
Consequently, sources in the Tioga Area are subject to Part D NSR
requirements of Appendix S to 40 CFR part 51, pursuant to 40 CFR
52.24(k). Appendix S of 40 CFR part 51 contains the preconstruction
permitting program that applies to major stationary sources in
nonattainment areas lacking an approved Part D NSR program. Appendix S
applies during the interim period after EPA designates an area as
nonattainment, but before EPA approves revisions to a SIP to implement
the Part D NSR requirements for that pollutant. See, 70 FR 71618
(November 29, 2005). The Chapter 127 Part D NSR regulations in the
Pennsylvania SIP explicitly apply to attainment areas within the Ozone
Transport Region (OTR). See, Chapter 127 in 40 CFR 52.2020(c)(1); See,
66 FR 53094, October 19, 2001. Therefore, after the Tioga Area is
redesignated to attainment, sources in the Tioga Area will be subject
to Part D NSR applicable under the permitting regulations in

Chapter 127, because the Tioga Area is located in the OTR.
    All areas in the OTR, both attainment and nonattainment, are
subject to additional control requirements under section 184 for the
purpose of reducing interstate transport of emissions that may
contribute to downwind ozone nonattainment. The section 184
requirements include reasonably available control technology (RACT),
NSR, enhanced vehicle inspection and maintenance, and Stage II vapor
recovery or a comparable measure.
    In the case of Tioga Area, which is located in the OTR,
nonattainment NSR will continue to be applicable after redesignation.
On October 19, 2001 (66 FR 53094), EPA fully approved the 1-hour
Pennsylvania's NSR SIP revision consisting of Pennsylvania's Chapter
127 Part D NSR regulations that cover the Tioga Area. The Chapter 127
Part D NSR regulations in the Pennsylvania SIP explicitly apply the
requirements for NSR of section 184 of the CAA to attainment areas
within the OTR.
    EPA has also interpreted the section 184 OTR requirements,
including the NSR program, as not being applicable for purposes of
redesignation. The rationale for this is based on two factors. First,
the requirement to submit SIP revisions for the section 184
requirements continues to apply to areas in the OTR after redesignation
to attainment. Therefore, the State remains obligated to have NSR, as
well as RACT, even after redesignation. Second, the section 184 control
measures are region-wide requirements and do not apply to the Tioga
Area by virtue of the area's designation and classification. Rather,
section 184 measures are required in the Tioga Area because it is
located in the OTR. See, 61 FR 53174, 53175-53176 (October 10, 1996)
and 62 FR 24826, 24830-32 (May 7, 1997).
3. The Tioga Area Has a Fully Approved SIP for the Purposes of
Redesignation
    EPA has fully approved the Pennsylvania SIP for the purposes of
redesignation. EPA may rely on prior SIP approvals in approving a
redesignation request. Calcagni Memo, p. 3; Southwestern Pennsylvania
Growth Alliance v. Browner, 144 F. 3d 984, 989-90 (6th Cir. 1998),;
Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), plus any additional measures
it may approve in conjunction with a redesignation action. See also, 68
FR at 25425 (May 12, 2003) and citations therein.
    The Tioga Area was a 1-hour attainment/unclassifiable area at the
time of its designation as a basic 8-hour ozone nonattainment area on
April 30, 2004 (69 FR 23857). Because the Tioga Area was a 1-hour
attainment/unclassifiable area, there are no previous Part D SIP
submittal requirements. Also, no Part D submittal requirements have
come due prior to the submittal of the 8-hour maintenance plan for the
area. Therefore, all Part D submittal requirements have been fulfilled.
Because there are no outstanding SIP submission requirements applicable
for the purposes of redesignation of the Tioga Area, the applicable
implementation plan satisfies all pertinent SIP requirements. As
indicated previously, EPA believes that the section 110 elements not
connected with Part D nonattainment plan submissions and not linked to
the area's nonattainment status are not applicable requirements for
purposes of redesignation. EPA also believes that no 8-hour Part D
requirements applicable for purposes of redesignation have yet become
due for the Tioga Area, and therefore they need not be approved into
the SIP prior to redesignation.

C. The Air Quality Improvement in the Tioga Area Is Due to Permanent
and Enforceable Reductions in Emissions Resulting From Implementation
of the SIP and Applicable Federal Air Pollution Control Regulations and
Other Permanent and Enforceable Reductions

    EPA believes that the Commonwealth has demonstrated that the
observed air quality improvement in the Tioga Area is due to permanent
and enforceable reductions in emissions resulting from implementation
of the SIP, Federal measures, and other State-adopted measures.
Emissions reductions attributable to these rules are shown in Table 3.

                                      Table 3.--Total VOC and NOX Emissions for 2002 and 2004 in Tons Per Day (tpd)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                           Year                                  Point               Area             Nonroad             Mobile             Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Volatile Organic Compounds (VOC)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 2002................................................                0.6                2.7                2.1                3.4                8.8
Year 2004................................................                0.6                2.7                2.2                3.0                8.5
Diff. (02-04)............................................                0.0                0.0                0.1               -0.4               -0.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Nitrogen Oxides (NOX)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 2002................................................                1.9                0.3                1.5                5.4                9.1
Year 2004................................................                2.0                0.3                1.5                4.8                8.6
Diff. (02-04)............................................                0.1                0.0                0.0               -0.6               -0.5
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Between 2002 and 2004, VOC emissions were reduced by 0.3 tpd, and
NOX emissions were reduced by 0.5 tpd. These reductions and
anticipated future reductions are due to the following permanent and
enforceable measures implemented or in the process of being implemented
in the Tioga Area:
1. Stationary Point Sources
    Federal NOX SIP Call (66 FR 43795, August 21, 2001)
2. Stationary Area Sources
    Solvent Cleaning (68 FR 2206, January 16, 2003)
    Portable Fuel Containers (69 FR 70893, December 8, 2004)
3. Highway Vehicle Sources
    Federal Motor Vehicle Control Programs (FMVCP)
    --Tier 1 (56 FR 25724, June 5, 1991)
    --Tier 2 (65 FR 6698, February 10, 2000)
    Heavy Duty Engines and Vehicles Standards (62 FR 54694, October 21,
1997 and 65 FR 59896, October 6, 2000)
    National Low Emission Vehicle (NLEV) (64 FR 72564, December 28,
1999)
    Vehicle Safety Inspection Program (70 FR 58313, October 6, 2005)
4. Nonroad Sources
    Nonroad Diesel Engine and Fuel (69 FR 38958, June 29, 2004)
    EPA believes that permanent and enforceable emissions reductions
are the cause of the long-term improvement in ozone levels and are the
cause of the area achieving attainment of the 8-hour ozone standard.

D. The Tioga Area Has a Fully Approved Maintenance Plan Pursuant to
Section 175A of the CAA

    In conjunction with its request to redesignate the Tioga Area to
attainment status, Pennsylvania submitted a SIP revision to provide for
maintenance of the 8-hour ozone NAAQS in the Tioga Area for at least 10
years after redesignation. Pennsylvania is requesting that EPA approve
this SIP revision as meeting the requirement of section 175A of the
CAA. Once approved, the maintenance plan for the 8-hour ozone NAAQS
will ensure that the SIP for the Tioga Area meets the requirements of
the CAA regarding maintenance of the applicable 8-hour ozone standard.
What Is Required In A Maintenance Plan?
    Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least 10 years after approval of a
redesignation of an area to attainment. Eight years after the
redesignation, the State must submit a revised maintenance plan
demonstrating that attainment will continue to be maintained for the
next 10-year period following the initial 10-year period. To address
the possibility of future NAAQS violations, the maintenance plan must
contain such contingency measures, with a schedule for implementation,
as EPA deems necessary to assure prompt correction of any future 8-hour
ozone violations. Section 175A of the CAA sets forth the elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. The Calcagni memo provides additional guidance on the
content of a maintenance plan. An ozone maintenance plan should address
the following provisions:
    (1) An attainment emissions inventory;
    (2) A maintenance demonstration;
    (3) A monitoring network;
    (4) Verification of continued attainment; and
    (5) A contingency plan.
Analysis of the Tioga Area Maintenance Plan
    (a) Attainment Inventory--An attainment inventory includes the
emissions during the time period associated with the monitoring data
showing attainment. An attainment year of 2004 was used for the Tioga
Area since it is a reasonable year within the 3-year block of 2002-2004
and accounts for reductions attributable to implementation of the CAA
requirements to date. The 2004 inventory is consistent with EPA
guidance and is based on actual ``typical summer day'' emissions of VOC
and NOX during 2004 and consists of a list of sources and
their associated emissions.
    PADEP prepared comprehensive VOC and NOX emissions
inventories for the Tioga Area, including point, area, mobile on-road,
and mobile non-road sources for a base year of 2002.
    To develop the NOX and VOC base year emissions
inventories, PADEP used the following approaches and sources of data:
    (i) Point source emissions--Pennsylvania requires owners and
operators of larger facilities to submit annual production figures and
emission calculations each year. Throughput data are multiplied by
emission factors from Factor Information Retrieval (FIRE) Data System
and EPA's publication series AP-42 and are based on Source
Classification Code (SCC). Each process has at least one SCC assigned
to it. If the owners and operators of facilities provide more accurate
emission data based upon other factors, these emission estimates
supersede those calculated using SCC codes.
    (ii) Area source emissions--Area source emissions are generally
estimated by multiplying an emission factor by some known indicator or
collective activity for each area source category at the county level.
Pennsylvania estimates emissions from area sources using emission
factors and SCC codes in a method similar to that used for stationary
point sources. Emission factors may also be derived from research and
guidance documents if those documents are more accurate than FIRE and
AP-42 factors. Throughput estimates are derived from county-level
activity data, by apportioning national and statewide activity data to
counties, from census numbers, and from county employee numbers. County
employee numbers are based upon North American Industry Classification
System (NAICS) codes to establish that those numbers are specific to
the industry covered.
    (iii) On-road mobile sources--PADEP employs an emissions estimation
methodology that uses current EPA-approved highway vehicle emission
model, MOBILE 6.2, to estimate highway vehicle emissions. The Tioga
Area highway vehicle emissions in 2004 were estimated using MOBILE 6.2
and PENNDOT estimates of vehicles miles traveled (VMT) by vehicle type
and roadway type.
    (iv) Mobile nonroad emissions--The 2002 emissions for the majority
of nonroad emission source categories were estimated using the EPA
NONROAD 2005 model. The NONROAD model estimates emissions for diesel,
gasoline, liquefied petroleum gasoline, and compressed natural gas-
fueled nonroad equipment types and includes growth factors. The NONROAD
model does not estimate emissions from aircraft or locomotives. For
2002 locomotive emissions, PADEP projected emissions from a 1999 survey
using national fuel information and EPA emission and conversion
factors. There are no commercial aircraft operations in the Tioga Area.
For 2002 aircraft emissions, PADEP estimated emissions using small
aircraft operation statistics from http://www.airnav.com, and emission

factors and operational characteristics in the EPA-approved model,
Emissions and Dispersion Modeling System (EDMS).
    The 2004 attainment year VOC and NOX emissions for the
Tioga Area are summarized along with the 2009 and 2018 projected
emissions for this area in Tables 4 and 5, which cover the
demonstration of maintenance for this area. EPA has concluded that
Pennsylvania has adequately derived and documented the 2004 attainment
year VOC and NOX emissions for this area.
    (b) Maintenance Demonstration--On September 28, 2006, PADEP
submitted a SIP revision to supplement its September 28, 2006
redesignation request. The submittal by PADEP consists of the
maintenance plan as required by section 175A of the CAA. The Tioga Area
plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that
current and future emissions of VOC and NOX remain at or
below the attainment year 2004 emissions levels throughout the Tioga
Area through the year 2018. A maintenance demonstration need not be
based on modeling. See, Wall v. EPA, supra; Sierra Club v. EPA, supra.
See also, 66 FR at 53099-53100; 68 FR at 25430-32.
    Tables 4 and 5 specify the VOC and NOX emissions for the
Tioga Area for 2004, 2009, and 2018. PADEP chose 2009 as an interim
year in the 10-year maintenance demonstration period to demonstrate
that the VOC and NOX emissions are not projected to increase
above the 2004 attainment level during the time of the 10-year
maintenance period.

                                Table 4.--Total VOC Emissions for 2004-2018 (tpd)
----------------------------------------------------------------------------------------------------------------
                                                                2004 VOC          2009 VOC          2018 VOC
                      Source category                           emissions         emissions         emissions
----------------------------------------------------------------------------------------------------------------
Mobile*...................................................               3.0               2.2               1.3
Nonroad...................................................               1.5              1.36               1.0
Area......................................................               2.7               2.4               2.6
Point.....................................................               0.6               0.5               0.6
Total.....................................................               8.4               7.1              6.0
----------------------------------------------------------------------------------------------------------------
*Includes safety margin identified in the motor vehicle emission budgets for transportation conformity.

                                  Table 5.--Total NOX Emissions 2004-2018 (tpd)
----------------------------------------------------------------------------------------------------------------
                                                                2004 NOX          2009 NOX          2018 NOX
                      Source category                           emissions         emissions         emissions
----------------------------------------------------------------------------------------------------------------
Mobile*...................................................               4.8               1.3               1.6
Nonroad...................................................               1.5               1.3               0.8
Area......................................................               0.3               0.3               0.3
Point.....................................................               2.0               2.1               2.6
Total.....................................................               8.5               7.1              5.3
----------------------------------------------------------------------------------------------------------------
*Includes safety margin identified in the motor vehicle emission budgets for transportation conformity.

    The following programs are either effective or due to become
effective and will further contribute to the maintenance demonstration
of the 8-hour ozone NAAQS:
    1. Pennsylvania's Portable Fuel Containers (69 FR 70893, December
8, 2004)
    2. Pennsylvania's Consumer Products (69 FR 70895, December 8, 2004)
    3. Pennsylvania's Architectural and Industrial Maintenance (AIM)
Coatings (69 FR 68080, November 23, 2004)
    4. Federal NOX SIP Call (66 FR 43795, August 21, 2001)
    5. Federal Clean Air Interstate Rule (71 FR 25328, April 28, 2006)
    6. FMVCP for passenger vehicles and light-duty trucks and cleaner
gasoline (2009 and 2018 fleet)--Tier 1 and Tier 2 (56 FR 25724, June 5,
1991 and 65 FR 6698, February 10, 2000)
    7. NLEV Program, which includes the Pennsylvania's Clean Vehicle
Program for passenger vehicles and light-duty trucks (69 FR 72564,
December 28, 1999)--proposed amendments to move the implementation to
model year (MY) 2008
    8. Heavy duty diesel on-road (2004/2007) and low-sulfur on-road
(2006) (66 FR 5002, January 18, 2001)
    9. Non-road emissions standards (2008) and off-road diesel fuel
(2007/2010) (69 FR 38958, June 29, 2004)

    Based upon the comparison of the projected emissions and the
attainment year emissions along with the additional measures, EPA
concludes that PADEP has successfully demonstrated that the 8-hour
ozone standard should be maintained in the Tioga Area.
    (c) Monitoring Network--There is currently one monitor measuring
ozone in the Tioga Area. Pennsylvania will continue to operate its
current air quality monitor in accordance with 40 CFR part 58.
    (d) Verification of Continued Attainment--The Commonwealth will
track the attainment status of the ozone NAAQS in the Tioga Area by
reviewing air quality and emissions during the maintenance period. The
Commonwealth will perform an annual evaluation of two key factors,
vehicle miles traveled (VMT) data and emissions reported from
stationary sources, and compare them to the assumptions about these
factors used in the maintenance plan. The Commonwealth will also
evaluate the periodic (every three years) emission inventories prepared
under EPA's Consolidated Emission Reporting Regulation (40 CFR part 51,
subpart A) to see if the area exceeds the attainment year inventory
(2004) by more than 10 percent. Based on these evaluations, the
Commonwealth will consider whether any further emission control
measures should be implemented.
    (e) The Maintenance Plan's Contingency Measures--The contingency
plan provisions are designed to promptly correct a violation of the
NAAQS that occurs after redesignation. Section 175A of the CAA requires
that a maintenance plan include such contingency measures as EPA deems
necessary to ensure that the State will promptly correct a violation of
the NAAQS that occurs after redesignation. The maintenance plan should
identify the events that would ``trigger'' the adoption and
implementation of a contingency measure(s), the contingency measure(s)
that would be adopted and implemented, and the schedule indicating the
time frame by which the state would adopt and implement the measure(s).
    The ability of the Tioga Area to stay in compliance with the 8-hour
ozone standard after redesignation depends upon VOC and NOX
emissions in the area remaining at or below 2004 levels. The
Commonwealth's maintenance plan projects VOC and NOX
emissions to decrease and stay below 2004 levels through the year 2018.
The Commonwealth's maintenance plan outlines the procedures for the
adoption and implementation of contingency measures to further reduce
emissions should a violation occur.
    Contingency measures will be considered if for two consecutive
years the fourth highest eight-hour ozone concentrations at the Tioga
Area monitor are above 84 ppb. If this trigger point occurs, the
Commonwealth will evaluate whether additional local emission control
measures should be implemented in order to prevent a violation of the
air quality standard. PADEP will analyze the conditions leading to the
excessive ozone levels and evaluate what measures might be most
effective in correcting the excessive ozone levels. PADEP will also
analyze the potential emissions effect of Federal, state and local
measure that have been adopted but not yet implemented at the time of
excessive ozone levels occurred. PADEP will then begin the process of
implementing any selected measures.
    Contingency measures will be considered in the event that a
violation of the 8-hour ozone standard occurs at the Tioga County,
Pennsylvania

monitor. In the event of a violation of the 8-hour ozone standard,
contingency measures will be adopted in order to return the area to
attainment with the standard. Contingency measures to be considered for
the Tioga Area will include, but not limited to the following:

Non-Regulatory Measures

--Voluntary diesel engine ``chip reflash''--installation software to
correct the defeat device option on certain heavy duty diesel engines
--Diesel retrofit, including replacement, repowering or alternative
fuel use, for public or private local onroad or offroad fleets
--Idling reduction technology for Class 2 yard locomotives
--Idling reduction technologies or strategies for truck stops,
warehouses and other freight-handling facilities
--Accelerated turnover of lawn and garden equipment, especially
commercial equipment, including promotion of electric equipment
--Additional promotion of alternative fuel (e.g., biodiesel) for home
heating and agricultural use

Regulatory Measures

--Additional controls on consumer products
--Additional control on portable fuel containers

    The plan lays out a process to have any regulatory contingency
measures in effect within 19 months of the trigger. The plan also lays
out a process to implement the non-regulatory contingency measures
within 12-24 months of the trigger.

VII. Are the Motor Vehicle Emissions Budgets Established and Identified
in the Maintenance Plan for the Tioga Area Adequate and Approvable?

A. What Are the Motor Vehicle Emissions Budgets?

    Under the CAA, States are required to submit, at various times,
control strategy SIPs and maintenance plans in ozone areas. These
control strategy SIPs (i.e. RFP SIPs and attainment demonstration SIPs)
and maintenance plans identify and establish MVEBs for certain criteria
pollutants and/or their precursors to address pollution from on-road
mobile sources. Pursuant to 40 CFR part 93 and Sec.  51.112, MVEBs must
be established in an ozone maintenance plan. A MVEB is the portion of
the total allowable emissions that is allocated to highway and transit
vehicle use and emissions. A MVEB serves as a ceiling on emissions from
an area's planned transportation system. The MVEB concept is further
explained in the preamble to the November 24, 1993, transportation
conformity rule (58 FR 62188). The preamble also describes how to
establish and revise the MVEBs in control strategy SIPs and maintenance
plans.
    Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the State's air quality plan that
addresses pollution from cars and trucks. ``Conformity'' to the SIP
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
or reasonable progress towards the NAAQS. If a transportation plan does
not ``conform,'' most new projects that would expand the capacity of
roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA
policy, criteria, and procedures for demonstrating and ensuring
conformity of such transportation activities to a SIP.
    When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA must affirmatively find the MVEB budget
contained therein ``adequate'' for use in determining transportation
conformity. After EPA affirmatively finds the submitted MVEB is
adequate for transportation conformity purposes, that MVEB can be used
by State and Federal agencies in determining whether proposed
transportation projects ``conform'' to the SIP as required by section
176(c) of the CAA. EPA's substantive criteria for determining
``adequacy'' of a MVEB are set out in 40 CFR 93.118(e)(4).
    EPA's process for determining ``adequacy'' consists of three basic
steps: public notification of a SIP submission, a public comment
period, and EPA's adequacy finding. This process for determining the
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14,
1999 guidance, ``Conformity Guidance on Implementation of March 2,
1999, Conformity Court Decision.'' This guidance was finalized in the
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards and
Miscellaneous Revisions for Existing Areas; Transportation Conformity
Rule Amendments--Response to Court Decision and Additional Rule
Change'' on July 1, 2004 (69 FR 40004). EPA consults this guidance and
follows this rulemaking in making its adequacy determinations.
    The MVEBs for the Tioga Area are listed in Table 1 of this document
for the 2004, 2009, and 2018 years and are the projected emissions for
the on-road mobile sources plus any portion of the safety margin
allocated to the MVEBs. These emission budgets, when approved by EPA,
must be used for transportation conformity determinations.

B. What Is a Safety Margin?

    A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. The attainment level of
emissions is the level of emissions during one of the years in which
the area met the NAAQS. The following example is for the 2018 safety
margin: The Tioga Area first attained the 8-hour ozone NAAQS during the
2002 to 2004 time period. The Commonwealth used 2004 as the year to
determine attainment levels of emissions for the Tioga Area.
    The total emissions from point, area, mobile on-road, and mobile
non-road sources in 2004 equaled 7.7 tpd of VOC and 8.0 tpd of
NOX. PADEP projected emissions out to the year 2018 and
projected a total of 5.5 tpd of VOC and 4.1 tpd of NOX from
all sources in the Tioga Area. The safety margin for Tioga for 2018
would be the difference between these amounts, or 2.2 tpd of VOC and
3.9 tpd of NOX. The emissions up to the level of the
attainment year including the safety margins are projected to maintain
the area's air quality consistent with the 8-hour ozone NAAQS. The
safety margin is the extra emissions reduction below the attainment
levels that can be allocated for emissions by various sources as long
as the total emission levels are maintained at or below the attainment
levels. Table 6 shows the safety margins for the 2009 and 2018 years.

        Table 6.--2009 and 2018 Safety Margins for the Tioga Area
------------------------------------------------------------------------
                                        VOC emissions     NOX emissions
           Inventory year                   (tpd)             (tpd)
------------------------------------------------------------------------
2004 Attainment.....................               7.7               8.0

2009 Interim........................               6.7               6.2
2009 Safety Margin..................               1.0               1.8
2004 Attainment.....................               7.7               8.0
2018 Final..........................               5.5               4.1
2018 Safety Margin..................               2.2               3.9
------------------------------------------------------------------------

    PADEP allocated 0.2 tpd NOX and 0.1 tpd VOC to the 2009
interim VOC projected on-road mobile source emissions projection and
the 2009 interim NOX projected on-road mobile source
emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs
the PADEP allocated 0.2 tpd NOX and 0.2 tpd VOC from the
2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the
mobile source budgets these portions of the safety margins are no
longer available, and may no longer be allocated to any other source
category. Table 7 shows the final 2009 and 2018 MVEBs for the Tioga
Area.

         Table 7.--2009 and 2018 Final MVEBs for the Tioga Area
------------------------------------------------------------------------
                                        VOC emissions     NOX emissions
           Inventory year                   (tpd)             (tpd)
------------------------------------------------------------------------
2009 projected on-road mobile source               2.1               3.2
 projected emissions................
2009 Safety Margin Allocated to                    0.1               0.2
 MVEBs..............................
2009 MVEBs..........................               2.2               3.4
2018 projected on-road mobile source               1.1               1.4
 projected emissions................
2018 Safety Margin Allocated to                    0.2               0.2
 MVEBs..............................
2018 MVEBs..........................               1.3               1.6
------------------------------------------------------------------------

C. Why Are the MVEBs Approvable?

    The 2004, 2009 and 2018 MVEBs for the Tioga Area are approvable
because the MVEBs for NOX and VOC, including the allocated
safety margins, continue to maintain the total emissions at or below
the attainment year inventory levels as required by the transportation
conformity regulations.

D. What Is the Adequacy and Approval Process for the MVEBs in the Tioga
Area Maintenance Plan?

    The MVEBs for the Tioga Area maintenance plan are being posted to
EPA's conformity Web site concurrent with this proposal. The public
comment period will end at the same time as the public comment period
for this proposed rule. In this case, EPA is concurrently processing
the action on the maintenance plan and the adequacy process for the
MVEBs contained therein. In this proposed rule, EPA is proposing to
find the MVEBs adequate and also proposing to approve the MVEBs as part
of the maintenance plan. The MVEBs cannot be used for transportation
conformity until the maintenance plan update and associated MVEBs are
approved in a final Federal Register notice, or EPA otherwise finds the
budgets adequate in a separate action following the comment period.
    If EPA receives adverse written comments with respect to the
proposed approval of the Tioga Area MVEBs, or any other aspect of our
proposed approval of this updated maintenance plan, we will respond to
the comments on the MVEBs in our final action or proceed with the
adequacy process as a separate action. Our action on the Tioga Area
MVEBs will also be announced on EPA's conformity Web site: http://www.epa.gov.otaq/stateresources/transconf/index.htm
 (once there, click

on ``Adequacy Review of SIP Submissions'').

VIII. Proposed Actions

    EPA is proposing to determine that the Tioga Area has attained the
8-hour ozone NAAQS. EPA is also proposing to approve the Commonwealth's
September 28, 2006 request for the Tioga Area to be redesignated to
attainment of the 8-hour NAAQS for ozone. EPA has evaluated
Pennsylvania's redesignation request and determined that it meets the
redesignation criteria set forth in section 107(d)(3)(E) of the CAA.
EPA believes that the redesignation request and monitoring data
demonstrate that the area has attained the 8-hour ozone standard. The
final approval of this redesignation request would change the
designation of the Tioga Area from nonattainment to attainment for the
8-hour ozone standard. EPA is also proposing to approve the associated
maintenance plan and the 2002 base year inventory for Tioga Area,
submitted on September 28, 2006 and supplemented on November 14, 2006,
as revisions to the Pennsylvania SIP. EPA is proposing to approve the
maintenance plan for the Tioga Area because it meets the requirements
of section 175A as described previously in this notice. EPA is also
proposing to approve the MVEBs submitted by Pennsylvania for the Tioga
Area in conjunction with its redesignation request. EPA is soliciting
public comments on the issues discussed in this document. These
comments will be considered before taking final action.

IX. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)).
This action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Redesignation of an area to attainment under
section 107(d)(3)(e) of the Clean Air Act does not impose any new
requirements on small entities. Redesignation is an action that affects
the status of a geographical area and does not impose any new
regulatory requirements on sources. Redesignation

of an area to attainment under section 107(d)(3)(E) of the Clean Air
Act does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any new regulatory requirements on sources.
Accordingly, the Administrator certifies that this proposed rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this rule proposes to approve pre-existing requirements under
state law and does not impose any additional enforceable duty beyond
that required by state law, it 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). This proposed
rule also does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999),
because it merely proposes to affect the status of a geographical area,
does not impose any new requirements on sources, or allow the state to
avoid adopting or implementing other requirements, and does not alter
the relationship or the distribution of power and responsibilities
established in the Clean Air Act. This proposed rule also is not
subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because
it approves a state rule implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission; to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Redesignation is an
action that affects the status of a geographical area and does not
impose any new requirements on sources. Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
proposed rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule proposing to approve the redesignation of the Tioga Area to
attainment for the 8-hour ozone NAAQS, the associated maintenance plan,
the 2002 base year inventory, and the MVEBs identified in the
maintenance plan, does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen Oxides,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: April 26, 2007.
Judith Katz,
Acting Regional Administrator, Region III.
 [FR Doc. E7-8669 Filed 5-7-07; 8:45 am]

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[Federal Register: May 28, 2010 (Volume 75, Number 103)]
[Notices]
[Page 30021]
[DOCID:fr28my10-76]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 516-459-South Carolina]

South Carolina Electric & Gas Company Saluda Hydroelectric
Project; Notice of Proposed Restricted Service List for a Programmatic
Agreement for Managing Properties Included In or Eligible for Inclusion
In the National Register of Historic Places

May 20, 2010.
    Rule 2010 of the Federal Energy Regulatory Commission's
(Commission) Rules of Practice and Procedure provides that, to
eliminate unnecessary expense or improve administrative efficiency, the
Secretary may establish a restricted service list for a particular
phase or issue in a proceeding.\1\ The restricted service list should
contain the names of persons on the service list who, in the judgment
of the decisional authority establishing the list, are active
participants with respect to the phase or issue in the proceeding for
which the list is established.
---------------------------------------------------------------------------

    \1\ 18 CFR section 385.2010.
---------------------------------------------------------------------------

    The Commission staff is consulting with the South Carolina State
Historic Preservation Officer (hereinafter, South Carolina SHPO), and
the Advisory Council on Historic Preservation (hereinafter, Council)
pursuant to the Council's regulations, 36 CFR Part 800, implementing
section 106 of the National Historic Preservation Act, as amended (16
U.S.C. section 470 f), to prepare and execute a programmatic agreement
for managing properties included in, or eligible for inclusion in, the
National Register of Historic Places at the Saluda Hydroelectric
Project No. 516-459.
    The programmatic agreement, when executed by the Commission and the
South Carolina SHPO would satisfy the Commission's section 106
responsibilities for all individual undertakings carried out in
accordance with the license until the license expires or is terminated
(36 CFR 800.13[e]). The Commission's responsibilities pursuant to
section 106 for the Saluda Project would be fulfilled through the
programmatic agreement, which the Commission proposes to draft in
consultation with certain parties listed below. The executed
programmatic agreement would be incorporated into any Order issuing a
license.
    South Carolina Electric & Gas Company, as licensee for Saluda
Hydroelectric Project No. 516, the Catawba Indian Nation, and the
Eastern Band of Cherokee Indians have expressed an interest in this
preceding and are invited to participate in consultations to develop
the programmatic agreement.
    For purposes of commenting on the programmatic agreement, we
propose to restrict the service list for the aforementioned project as
follows:

John Eddins or Representative, Advisory Council on Historic
Preservation, The Old Post Office Building, Suite 803, 1100
Pennsylvania Avenue, NW., Washington, DC 20004.
Rebekah Dobrasko or Representative, Review and Compliance Coordinator,
Archives & History Center, 8301 Parklane Road, Columbia, SC 29223.
Tyler Howe or Representative, Eastern Band of Cherokee Indians, Qualla
Boundary, P.O. Box 455, Cherokee, NC 28719.
Mr. William R. Argentieri or Representative, South Carolina Electric &
Gas Company, 111 Research Drive, Columbia, South Carolina 29203.
Dr. Wenonah G. Haire or Representative, Catawba Indian Nation THPO,
1536 Tom Stevens Rd., Rock Hill, SC 29730.

    Any person on the official service list for the above-captioned
proceeding may request inclusion on the restricted service list, or may
request that a restricted service list not be established, by filing a
motion to that effect within 15 days of this notice date. In a request
for inclusion, please identify the reason(s) why there is an interest
to be included. Also please identify any concerns about historic
properties, including Traditional Cultural Properties. If historic
properties are to be identified within the motion, please use a
separate page, and label it NON-PUBLIC Information.
    Any such motions may be filed electronically via the Internet. See
18 CFR385.2001(a)(1)(iii) and the instructions on the Commission's Web
site (http://www.ferc.gov/docs-filing/ferconline.asp) under the
``eFiling'' link. For a simpler method of submitting text only
comments, click on ``Quick Comment.'' For assistance, please contact
FERC Online Support at<EMAIL_ADDRESS>call toll-free at
(866) 208-3676; or, for TTY, contact<PHONE_NUMBER>. Although the
Commission strongly encourages electronic filing, documents may also be
paper-filed. To paper-file, mail an original and eight copies to:
Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426.
    If no such motions are filed, the restricted service list will be
effective at the end of the 15 day period. Otherwise, a further notice
will be issued ruling on any motion or motions filed within the 15 day
period.

Kimberly D. Bose,
Secretary.
[FR Doc. 2010-12857 Filed 5-27-10; 8:45 am]
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