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[Federal Register Volume 77, Number 167 (Tuesday, August 28, 2012)]
[Rules and Regulations]
[Pages 51930-51933]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21046]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0391; FRL-9719-4]

Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Attainment Plan for the Philadelphia-Wilmington, 
Pennsylvania-New Jersey-Delaware 1997 Fine Particulate Matter 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Pennsylvania on April 12, 2010, as 
amended on August 3, 2012. The SIP revision demonstrates attainment of 
the 1997 annual fine particulate matter (PM2.5) national 
ambient air quality standard (NAAQS) for the Philadelphia-Wilmington, 
Pennsylvania-New Jersey-Delaware (PA-NJ-DE) nonattainment area 
(Philadelphia Area). This Pennsylvania SIP revision (herein called the 
``attainment plan'') includes the Philadelphia Area's attainment 
demonstration and the motor vehicle emission budgets (MVEBs) used for 
transportation conformity purposes in Bucks, Chester, Delaware, 
Montgomery and Philadelphia Counties in Pennsylvania. The attainment 
plan also includes a base year emissions inventory and contingency 
measures. On August 3, 2012, Pennsylvania withdrew the analysis of 
reasonably available control measures and reasonably available control 
technology (RACM/RACT) from the attainment plan because the requirement 
was suspended by a clean data determination for the Philadelphia Area. 
Furthermore, EPA has determined that a reasonable further progress 
(RFP) plan is not required because Pennsylvania projected that 
attainment of the 1997 PM2.5 NAAQS occurred in the 
Philadelphia Area by the attainment date of April 2010. This action is 
being taken in accordance with the Clean Air Act (CAA) and the Clean 
Air Fine Particulate Implementation Rule (PM2.5 
Implementation Rule) published on April 25, 2007.

DATES: This final rule is effective on September 27, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-0391. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., 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 either electronically through www.regulations.gov or in hard 
copy for public inspection 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 Control, P.O. Box 8468, 400 Market 
Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by 
email at quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 2, 2011 (76 FR 67640), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR 
proposed approval of the Pennsylvania 1997 annual PM2.5 
NAAQS attainment plan for the Philadelphia Area.
    On November 27, 2009 (74 FR 62251), EPA published findings of 
failure to submit a SIP revision that demonstrates attainment of the 
1997 PM2.5 NAAQS for the Philadelphia Area. On April 12, 
2010, the Commonwealth of Pennsylvania through the Department of 
Environmental Protection (PADEP) submitted a formal SIP revision and on 
June 19, 2010, EPA determined that this SIP revision met the 
requirements for completeness found in section 110(k)(1) of the CAA. On 
May 16, 2012 (77 FR 28782), EPA published a clean data determination 
and determination of attainment of the 1997 annual PM2.5 
NAAQS by the attainment date of April 5, 2010.
    On May 12, 2005 (76 FR 70093), EPA published the Clean Air 
Interstate Rule (CAIR) that addresses the interstate transport 
requirements of the CAA with respect to the 1997 ozone and 1997 
PM2.5 NAAQS. As originally promulgated, CAIR required 
significant reductions in emissions of sulfur dioxide (SO2) 
and nitrogen oxides (NOX) to limit the interstate transport 
of these pollutants. In 2008, however, the DC Circuit Court of Appeals 
(``the Court'') remanded CAIR back to EPA. See North Carolina v. EPA, 
550 F.3d 1176. The Court found CAIR to be inconsistent with the 
requirements of the CAA, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 
2008), but ultimately remanded the rule to EPA without vacatur because 
it found that ``allowing CAIR to remain in effect until it is replaced 
by a rule consistent with [the Court's] opinion would at least 
temporarily preserve the environmental values covered by CAIR.'' See 
North Carolina v. EPA, 550 F.3d at 1178. CAIR thus remained in place 
following the remand, and was in place and enforceable through the 
April 5, 2010 attainment date. In response to the Court's decision, EPA 
has issued a new rule to address interstate transport of NOX 
and SO2 in the Eastern United States (i.e., the Transport 
Rule, also known as the Cross-State Air Pollution Rule). See 76 FR 
48208, August 8, 2011. In the Transport Rule, EPA finalized regulatory 
changes to sunset (i.e., discontinue) CAIR and the CAIR Federal 
Implementation Plans (FIPs) for control

[[Page 51931]]

periods in 2012 and beyond. See 76 FR 48322.
    On December 30, 2011, the Court issued an order addressing the 
status of the Transport Rule and CAIR in response to motions filed by 
numerous parties seeking a stay of the Transport Rule pending judicial 
review. In that order, the Court stayed the Transport Rule pending the 
Court's resolution of the petitions for review of that rule in EME 
Homer City Generation, L.P. v. EPA (No. 11-1302 and consolidated 
cases). The Court also indicated that EPA is expected to continue to 
administer the CAIR in the interim until the Court rules on the 
petitions for review of the Transport Rule.
    EPA does not believe that the circumstances set forth above 
preclude EPA from approving the April 12, 2012 Pennsylvania attainment 
plan as amended on August 3, 2012 for the Philadelphia Area. While the 
monitoring data that show the Philadelphia Area attained the 1997 
annual PM2.5 NAAQS by the April 2010 attainment deadline was 
impacted by CAIR, CAIR was in place and enforceable through the 2010 
attainment date that is relevant to acting on this attainment plan. 
Moreover, EPA's analysis conducted for the Transport Rule demonstrates 
that the Philadelphia Area would be able to attain the 1997 annual 
PM2.5 NAAQS even in the absence of either CAIR or the 
Transport Rule. See Appendix B to the Air Quality Modeling Final Rule 
Technical Support Document for the Transport Rule.
    Most importantly, EPA notes that this action is approving an 
attainment plan that demonstrated that the Philadelphia Area would 
attain the 1997 annual PM2.5 NAAQS by 2010, which it did. As 
of 2010, CAIR was an enforceable control measure applicable to affected 
sources in the area, as well as sources throughout the Eastern United 
States. As such, the fact that CAIR is now in place only temporarily as 
a result of the judicial remand of CAIR does not detract from our 
conclusion that the attainment plan should be approved. Further, the 
fact that the Court has stayed the implementation of the Transport Rule 
at this time is not relevant because, as noted above, EPA's modeling 
for the Transport Rule demonstrates the Philadelphia Area would be able 
to attain the 1997 annual PM2.5 even in the absence of CAIR 
and the Transport Rule. Finally, the Transport Rule, as promulgated, 
only addresses emissions in 2012 and beyond. As such, neither the 
Transport Rule itself, nor the judicial stay of the Transport Rule, is 
relevant to the question addressed in this proposal notice. The purpose 
of this action is to determine whether the attainment plan submitted by 
Pennsylvania is sufficient to bring the Philadelphia Area into 
attainment by the April 2010 attainment date, a date before the 
Transport Rule was even promulgated. For these reasons, neither the 
current status of CAIR nor the current status of the Transport Rule 
affects any of the criteria for proposed approval of this SIP revision.

II. Summary of SIP Revision

    Pennsylvania's SIP revision demonstrates attainment of the 1997 
annual PM2.5 NAAQS for the Philadelphia Area. This April 12, 
2010 attainment plan as amended on August 3, 2012, includes 
Pennsylvania's attainment demonstration, MVEBs used for transportation 
conformity purposes for the five counties in the Philadelphia Area, a 
base year emissions inventory, and contingency measures. A RFP plan is 
not required under the applicable implementation rule because the 
Philadelphia Area demonstrated that attainment of the 1997 annual 
PM2.5 NAAQS occurred by the attainment date of April 2010. 
See 40 CFR 51.1009(b) and 72 FR 20633 (April 25, 2007). In addition, 
because EPA determined on May 16, 2012 (77 FR 28782) that the 
Philadelphia Area attained by its required attainment date in 
accordance with section 179(c)(9) of the CAA, no contingency measures 
for failure to attain by this date need to be implemented, and further 
EPA action respecting nonattainment contingency measures is 
unnecessary. Furthermore, as set forth in the PM2.5 
Implementation Rule, areas that attained the NAAQS by the attainment 
date are considered to have satisfied the requirement to show RFP, and 
as such do not need to implement contingency measures to make further 
progress to attainment. EPA has determined that the Philadelphia Area 
attained by the attainment date, therefore the contingency measures 
submitted by Pennsylvania are no longer necessary for the Philadelphia 
Area to meet RFP requirements or to attain the 1997 annual 
PM2.5 NAAQS by the attainment date.
    On August 3, 2012, Michael L. Krancer, Secretary of PADEP sent a 
letter to Shawn M. Garvin, Regional Administrator of EPA Region III 
withdrawing the analysis of RACM/RACT which had been included in the 
April 12, 2010 attainment plan since the requirement for the RACM/RACT 
analysis was suspended by the May 16, 2012 (77 FR 28782) clean data 
determination pursuant to 40 CFR 51.1004(c). Specifically, PADEP 
withdrew section IV.B. in its entirety, pages 29-31 in part, and 
Appendix G in its entirety.
    Other specific requirements of the 1997 annual PM2.5 
NAAQS attainment plan for the Philadelphia Area and the rationale for 
EPA's proposed action are explained in the NPR and will not be restated 
here. On December 2, 2011, EPA received comments on the November 2, 
2011 NPR. A summary of those comments and EPA's responses are provided 
in section III of this document.

III. Summary of Public Comments and EPA Responses

    Comment: A commenter requests clarification with regard to the 
procedures for collecting emissions inventory data from the Port of 
Philadelphia and the accuracy of the data applied in this attainment 
plan.
    Response: Emissions from the Port of Philadelphia are not 
considered ``facility or point'' emissions but rather treated as part 
of the nonroad data category. Nonroad data category consists of off-
highway categories--such as cranes, yard trucks, locomotives and marine 
vessels. Therefore, emissions in the inventory are aggregated to the 
county level, separated by source category. Specifically, port 
emissions are comprised of marine vessels and land-based sources (such 
as cargo handling equipment) at ports. Activity data for land-based 
sources collected from various sources are used as inputs to EPA's 
NONROAD model. Marine vessels' emissions are calculated outside of the 
NONROAD model because the NONROAD model does not include marine vessel 
emissions.
    EPA reviewed the methodology that PADEP used to estimate marine 
vessel emissions and found that proper guidance was followed pertaining 
to gathering characteristics of the port that included the types of 
vessels, the shipping traffic, arrival information, and any limitations 
on the data gathered. EPA verified that the marine vessels' emissions 
were accounted for in the supporting spreadsheets provided for nonroad 
emission estimates. EPA also verified that land-based sources for cargo 
handling equipment, such as terminal tractors, cranes, container 
handlers and forklifts, were accounted for in the nonroad spreadsheets 
by county provided by PADEP.
    Comment: A commenter requests clarification and additional 
information with regard to Pennsylvania's enforcement of the Diesel-
Powered Commercial Motor Vehicle Idling Act (Act 124--anti-idling 
requirements) and

[[Page 51932]]

suggests that the attainment plan should offer more detailed 
``estimations of emission reductions resulting from Act 124.''
    Response: Additional information is publicly available and may be 
found at http://www.dep.state.pa.us/dep/deputate/airwaste/aq/cars/idling.htm. This Internet site directs viewers to contact the PADEP's 
Bureau of Air Quality for additional information pertaining to Act 124. 
Additionally, while the commenter suggests that the attainment plan 
should offer more detailed ``estimations of emission reductions 
resulting from Act 124,'' Pennsylvania does not rely on any emission 
reductions resulting from the enforcement of Act 124 in order to 
demonstrate attainment of the 1997 annual PM2.5 NAAQS. 
However, Pennsylvania does include Act 124 as a contingency measure. 
Since EPA has determined that the Philadelphia Area attained by its 
required attainment date, in accordance with section 172(c)(9) of the 
CAA, no contingency measures for failure to attain by this date or make 
reasonable further progress need to be implemented at this time. 
Therefore, the attainment plan provides sufficient estimations of 
emission reductions resulting from Act 124.

IV. Final Action

    EPA is approving Pennsylvania's April 12, 2010 attainment plan as 
amended on August 3, 2012 for the 1997 annual PM2.5 NAAQS 
for the Philadelphia Area as a revision to the Pennsylvania SIP. EPA 
has determined that the SIP revision meets the applicable requirements 
of the CAA, as described in the PM2.5 Implementation Rule. 
Specifically, EPA is approving only Pennsylvania's attainment 
demonstration, associated MVEBs used for transportation conformity 
purposes, the base year emissions inventory, and contingency measures. 
PADEP withdrew the RACM/RACT analysis section of the attainment plan as 
amended on August 3, 2012 because the requirement for RACM/RACT was 
suspended by the May 16, 2012 clean data determination pursuant to 40 
CFR 51.1004(c). Furthermore, EPA has determined that the requirement 
for RFP plan is satisfied because Pennsylvania demonstrated attainment 
of the 1997 annual PM2.5 NAAQS in the Philadelphia Area by 
April 5, 2010.

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 Order 
12866 (58 FR 51735, October 4, 1993);
     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 October 29, 2012. 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 pertaining to the Pennsylvania 1997 annual 
PM2.5 NAAQS attainment plan for the Philadelphia Area, may 
not be challenged later in proceedings to enforce its requirements. 
(See section 307(b)(2) of the CAA.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 9, 2012.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania

0
2. In Sec.  52.2020, the table in paragraph (e)(1) is amended by adding 
an entry for the 1997 PM2.5 NAAQS attainment plan 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 geographic    State submittal                          Additional
           revision                      area                  date         EPA approval date     explanation
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                                                  * * * * * * *
1997 PM2.5 NAAQS Attainment     Pennsylvania portion       4/12/10, 8/3/12  8/28/12 [Insert    .................
 Demonstration, 2002 Base Year   of the Philadelphia-                        page number
 Emissions Inventory,            Wilmington, PA-NJ-DE                        where the
 Contingency Measures and        PM2.5 Nonattainment                         document begins].
 Motor Vehicle Emission          Area.
 Budgets for 2009.
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[FR Doc. 2012-21046 Filed 8-27-12; 8:45 am]
BILLING CODE 6560-50-P
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