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Federal Register/Vol. 66, No. 203/Friday, October 19, 2001/Rules and Regulations

Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements.

Dated: October 3, 2001.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52-[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart NN-Pennsylvania

2. Section 52.2020 is amended by

adding paragraph (c)(186) to read as

follows:

§52.2020 Identification of plan.

(c) * * *

(186) Revisions to the Pennsylvania

Regulations, Chapter 129.91 pertaining

to NOx RACT, submitted on March 21,

1996, December 7, 1998 and April 9,

1999.

(i) Incorporation by reference.

(A) Letters submitted by the

Pennsylvania Department of

Environmental Protection transmitting

source-specific NOx RACT

determinations in the form of plan

approvals or operating permits on

March 21, 1996, December 7, 1998 and

April 9, 1999.

(B) Plan approvals (PA), and

Operating permits (OP) for the following

sources:

(1) Allegheny Ludlum Steel

Corporation, Westmoreland County, OP

65-000-137, effective May 17, 1999,

except for the expiration date.

(2) INDSPEC Chemical Corporation,

Butler County, PA 10-021, as amended

and effective on October 19, 1998 except

for Condition 4.

(ii) Additional materials. Other

materials submitted by the

Commonwealth of Pennsylvania in

support of and pertaining to the RACT

determinations submitted for the

sources listed in paragraph (c)(186)(i)(B)

of this section.

[FR Doc. 01-26405 Filed 10-18-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[PAl 75-4179; FRL-7079-6]

Approval and Promulgation of Air

Quality Implementation Plans and

Designation of Areas for Air Quality

Planning Purposes; Pennsylvania;

Redesignation of Pittsburgh-Beaver

Valley Ozone Nonattainment Area to

Attainment and Approval of

Miscellaneous Revisions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is determining that the

Pittsburgh-Beaver Valley moderate

ozone nonattainment area (the

Pittsburgh area) has attained the 1-hour

ozone National Ambient Air Quality

Standard (NAAQS) by its extended

attainment date. The Pittsburgh area is

comprised of Allegheny, Armstrong,

Beaver, Butler, Fayette, Washington,

and Westmoreland counties. This

determination is based on three years of

complete, quality-assured, ambient air

quality monitoring data for the 1998 to

2000 ozone seasons that demonstrate

that the ozone NAAQS has been

attained in the area, and the most recent

data which shows that the area is

continuing to attain. On the basis of this

determination, EPA is also determining

that certain attainment demonstration

requirements along with certain other

related requirements of Part D of Title

1 of the Clean Air Act (the Act), are not

applicable to the Pittsburgh area. EPA is

also approving the Commonwealth of

Pennsylvania's Department of

Environmental Protection (PADEP)

request to redesignate the Pittsburgh

area to attainment of the 1-hour ozone

NAAQS. The Commonwealth's formal

request was dated May 21, 2001. In

approving this redesignation request,

EPA is also approving as a revision to

the Pennsylvania State Implementation

Plan (SIP), the Commonwealth's plan

for maintaining the 1-hour ozone

standard for the next 10 years. EPA is

also approving the 1990 base year

emission inventory for nitrous oxides

(NOx). EPA is converting the limited

approval of Pennsylvania's New Source

Review (NSR) program to full approval

throughout the Commonwealth with the

exception of the 5-county Pennsylvania

portion of the Philadelphia-WilmingtonTrenton ozone nonattainment area

where it will retain its limited approval

status until that area has an approved

attainment demonstration for the 1-hour

ozone standard.

EFFECTIVE DATE: This final rule is

effective on November 19, 2001.

ADDRESSES: Copies of the documents

relevant to this action are available 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;

Pennsylvania Department of

Environmental Protection, Bureau of Air

Quality, P.O. Box 8468, 400 Market

Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Jill

Webster, (215) 814-2033, or by e-mail at

Webster.Jill@epa.gov.

SUPPLEMENTARY INFORMATION: On

January 10, 2001 (66 FR 1925), EPA

published a determination of attainment

for the Pittsburgh area. This notice of

proposed rulemaking (NPR) also

proposed a determination that certain

requirements of the Act were no longer

applicable. On May 30, 2001 (66 FR

29270), EPA published another NPR for

the Commonwealth of Pennsylvania.

This May 30, 2001, NPR proposed to

redesignate the Pittsburgh area to

attainment of the 1-hour ozone

standard. EPA also proposed to approve

the maintenance plan that the

Commonwealth submitted as a revision

to the Pennsylvania SIP. EPA proposed

these actions in parallel with the

Commonwealth's process for amending

the SIP. No substantial changes were

made to the plan during the

Commonwealth's adoption process and

the Commonwealth formally submitted

its adopted SIP on May 21, 2001.

On May 30, 2001 (66 FR 29270) EPA

also proposed approval of the 1990 NOx

base year inventory and, to convert the

limited approval of the Pennsylvania

NSR program to full approval for the

entire Commonwealth, with the

exception of the Pennsylvania portion of

the Philadelphia-Wilmington-Trenton

ozone nonattainment area. This

document is organized as follows:

I. What is the background for these actions?

II. What comments did we receive and what

are our responses?

III. What actions are we taking?

IV. Why are we taking this action to

redesignate the area?

V. What are the effects of redesignation to

attainment of the 1 -hour NAAQS?

VI. Administrative Requirements.

I. What Is the Background for These

Actions?

The history for these actions have

been set forth in the proposed

rulemakings published May 30, 2001

(66 FR 29270) and January 10, 2001 (66

FR 1925).

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II. What Comments Did We Receive and

What Are Our Responses?

We received letters containing

adverse comments from 2 commenters

and 1 letter in support of our proposal

of January 10, 2001. For our May 30,

2001 proposal, we received 5 letters

opposed to our actions and 1 letter in

support. Comments in support of the

rulemaking action are not summarized

below. The adverse comments and

EPA's response to them are provided

below.

A. Comments Related to Whether the

Area Has a Fully Approved Plan

We received comments from several

parties who assert that pursuant to

107(d)(3)(E)(ii) of the Clean Air Act,

EPA cannot redesignate an area to

attainment unless EPA "has fully

approved the applicable

implementation plan for the area." They

contend that EPA has yet to fully

approve the applicable implementation

plan for the Pittsburgh area. The

commenters maintain that, among other

things, EPA has yet to fully approve the

moderate area ozone SIP for this area by

failing to have fully approved the

following specific SIP elements required

by the Clean Air Act:

(1) An Attainment Determination and

Attainment Demonstration

Comment: Several commenters assert

that the Act required moderate area SIP

submittals to include an attainment

demonstration based on modeling or

other analytical method determined by

EPA to be at least as effective. The

commenters contend that EPA has not

approved an attainment demonstration

for Pittsburgh, nor has the state

submitted an approvable attainment

demonstration. The commenters also

claim that EPA's proposal to waive

requirements of section 172(c)(1) and

182(b)(1) of the Act concerning

submission of the ozone attainment

demonstration, reasonable further

progress (RFP) demonstration and

reasonably available control measures

and section 172(c)(9) concerning

contingency measures, is without

justification. They also contend that

EPA has no authority to waive these

requirements. One commenter questions

why EPA makes no mention of the

attainment demonstration adopted

December 29, 1997 by the

Commonwealth and asserts that EPA's

proposal to waive the requirements of

section 172(c), section 182(b)(1), and

section 172(c)(9) have no effect since

EPA has not redesignated the area.

Response: On January 10, 2001 (66 FR

1925), EPA proposed that the Pittsburgh

area had attained the standard based on

1998-2000 monitoring data. With this

finding, EPA also proposed that certain

requirements, including an attainment

demonstration, were no longer

applicable as the area had attained the

standard. EPA has explained at length

in other actions its rationale for the

reasonableness of this interpretation of

the Act and incorporates those

explanation by reference. See (61 FR

20458) (Cleveland-Akron-Lorain, Ohio

May 7, 1996); (60 FR 36723) (July 18,

1995) Salt Lake and Davis Counties,

Utah); (60 FR 37366) (July 20, 1995), (61

FR 31832-31833) (June 21, 1996) (Grand

Rapids, MI), (65 FR 37879) (June 19,

2000) Cincinnati-Hamilton, Ohio and

Kentucky. The United States Court of

appeals for the Tenth Circuit has upheld

EPA's interpretation. Sierra Club v.

EPA, 99 F. 3d 1551 (10th Cir. 1996).

EPA reiterates the position set forth in

its prior rulemaking actions and in the

January 10, 2001 (66 FR 1925) proposed

rulemaking for the Pittsburgh area.

Subpart 2 of part D of Title I of the Act

contains various air quality planning

and SIP submission requirements for

ozone nonattainment areas. EPA

believes it is reasonable to interpret the

provisions regarding Reasonable Further

Progress (RFP) and attainment

demonstrations, along with other certain

other related provisions, not to require

SIP submissions if an ozone

nonattainment area subject to those

requirements is monitoring attainment

of the ozone standard (i.e., attainment of

the NAAQS demonstrated with three

consecutive years of complete, qualityassured, air quality monitoring data).

EPA interprets the general provisions of

subpart 1 of part D of Title I (sections

171 and 172) not to require the

submission of SIP revisions concerning

RFP, attainment demonstrations or

section 172 (c)(9) contingency measures.

As explained in a memorandum from

John S. Seitz, Director, Office of Air

Quality Planning and Standards,

entitled "Reasonable Further Progress,

Attainment Demonstration, and Related

Requirements for Ozone Nonattainment

Area Meeting the Ozone National

Ambient Air Quality Standard," dated

May 10, 1995, EPA believes it is

appropriate to interpret the more

specific attainment demonstration and

related provisions of subpart 2 in the

same manner. See Sierra Club v. EPA,

99 F. 3d. 1551 (10th Cir. 1996).

The attainment demonstration

requirements of section 182(b)(1)

requires that the plan provide for "such

specific annual reductions in emissions

* * * as necessary to attain the national

primary ambient air quality standard by

the attainment date applicable under the

CAA." If an area has, in fact, monitored

attainment of the relevant NAAQS, EPA

believes there is no need for an area to

make a further submission containing

additional measures to achieve

attainment. This is also consistent with

the interpretation of certain section

172(c) requirements provided by EPA in

the General Preamble to Title I. As EPA

stated in the General Preamble, no other

measures to provide for attainment

would be needed by areas seeking

redesignation to attainment since

"attainment will have been reached" (57

FR 13564). Upon attainment of the

NAAQS, the focus of state planning

efforts shifts to the maintenance of the

NAAQS and the development of a

maintenance plan under section 175A.

Similar reasoning applies to other

related provisions of subpart 2. The first

of these are the contingency measure

requirements of section 172(c)(9) of the

Act. EPA has previously interpreted the

contingency measure requirements of

section 172(c)(9) as no longer being

applicable once an area has attained the

standard since those "contingency

measures are directed at ensuring RFP

and attainment by the applicable date"

(57 FR 13564).

The state must continue to operate an

appropriate network, in accordance

with 40 CFR part 58, to verify the

attainment status of the area. The air

quality data relied upon to determine

that the area is attaining the ozone

standard must be consistent with 40

CFR part 58 requirements and other

relevant EPA guidance and recorded in

EPA's Aerometric Information Retrieval

System (AIRS).

EPA has reviewed the ambient air

monitoring data for ozone (consistent

with the requirements contained in 40

CFR part 58 and recorded in EPA's

AIRS) for the Pittsburgh moderate ozone

nonattainment area from the 1998 to

2000 ozone seasons. Monitoring data for

the 2001 ozone season shows that the

area continues to attain the 1-hour

ozone NAAQS. On the basis of this

review, EPA had determined that the

area has attained the 1-hour ozone

standard during the 1998-2000 period

(and has continued to do so, to date, in

2001), and therefore is not required to

submit an attainment demonstration

and a section 172(c)(9) contingency

measure plan, nor does it need any

other measures to attain the 1-hour

ozone standard.

EPA does not need to evaluate the

attainment demonstration that the

Commonwealth has previously adopted,

because it is not necessary for this

action, and is no longer a requirement

for the Pittsburgh area, because the area

has attained the 1-hour ozone NAAQS.

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It is also important to note that the

Commonwealth has a fully approved 15

percent plan for the Pittsburgh area. (66

FR 17634) (April 3, 2001).

(2) An "All Reasonably Available

Control Measures" (RACM) Analysis

Comment: One commenter asserts

that EPA has not approved a

demonstration that the SIP provided for

implementation of all reasonably

available control measures as

expeditiously as practicable, 42 U.S.C.

7502(c)(1), nor has the state met this

requirement for Pittsburgh. The

commenter states that EPA has no

authority to waive this requirement,

which is in addition to the requirement

to demonstrate timely attainment.

Response: No additional RACM

controls beyond what are already

required in the SIP are necessary for

redesignation to attainment. The

General Preamble, April 16, 1992 (57 FR

13560), explains that section 172 (c)(1)

requires the plans for all nonattainment

areas to provide for the implementation

of RACM as expeditiously as

practicable. EPA interprets this

requirement to impose a duty on all

nonattainment areas to consider all

available control measures and to adopt

and implement those measures that are

reasonably available and necessary to

attain as expeditiously as practicable.

Because attainment has been achieved,

no additional measures are needed to

provide for attainment.

The suspension of the attainment

demonstration requirements pursuant to

our determination of attainment include

the section 172(c)(1) RACM

requirements as well. The General

Preamble treats the RACM requirements

as a "component" of an area's

attainment demonstration. Thus, the

suspension of the attainment

demonstration requirement pursuant to

our determination of attainment applies

to the RACM requirement, since it is a

component of the attainment

demonstration.

(3) Reasonably Available Control

Technology (RACT)

Comment: Several commenters state

that the Act explicitly requires that the

SIP mandate RACT for all VOC sources

within the nonattainment area,

including each category of VOC sources

covered by Control Technique

Guideline (CTG) documents. 42 U.S.C.

7502(c), 7511a (b)(2). The commenters

point out that EPA concedes that the

requirement to fully approve the RACT

SIP has not been met as of the date of

the redesignation proposal.

Several commenters state that the

Commonwealth has not adopted source

category RACT rules for all CTG

categories including: aerospace,

synthetic organic compound

manufacturing, reactor and distillations

processes, shipbuilding, wood furniture,

large petroleum dry cleaners, air

oxidation processes in synthetic organic

chemical manufacturing industries,

equipment leaks from natural/gas

gasoline processing plants, and a

number of others. One commenter

postulates that EPA will suggest that it

will require source specific RACT for all

sources within each category before

finalizing the redesignation proposal

and the commenter asserts that this

approach circumvents the mandate to

adopt RACT for each category of VOC

sources covered by CTG documents.

This commenter goes on to say the these

category RACTs were to have been

adopted and complied with years ago

and EPA cannot retroactively deem the

SIP to be in compliance with part D.

Several commenters assert that if EPA

intends to grant the state's redesignation

request based on potential future EPA

approvals of state RACT determinations,

then it will deprive the public of the

opportunity to offer fully informed

comment as to whether the plan as a

whole meets all of the applicable

requirements of section 110 and part D

of the Act, as well as the

appropriateness of their inclusion in the

redesignation.

Response: The Pittsburgh area has

satisfied all applicable ozone

requirements and has a fully approved

ozone SIP. In acting upon a

redesignation request, EPA may rely on

any prior SIP approvals plus any

additional approvals it may perform in

conjunction with acting on the

redesignation. EPA has already taken

final action to approve all required SIP

elements or is approving them in

conjunction with this final action on the

redesignation. Therefore, the Pittsburgh

area has a fully approved SIP. See

"Procedures for Processing Requests to

Redesignate Areas to Attainment," John

Calcagni, Director, Air Quality

Management Division, September 4,

1992, page 3. The Calcagni

memorandum allows for approval of SIP

elements and redesignation to occur

simultaneously, and EPA has frequently

taken this approach in its redesignation

actions. See (61 FR 20458) (ClevelandAkron-Lorain, Ohio May 7, 1996); (60

FR 37366) (July 20, 1995), (61 FR

31832-31833( (June 21, 1996) (Grand

Rapids, MI).

In our proposed redesignation on May

30, 2001, we stated that we would not

take final action to redesignate

Pittsburgh until it had taken all actions

necessary for EPA to convert the limited

approval of the generic RACT regulation

to a full approval for the Pittsburgh area.

Since our proposal, EPA has taken final

action approving the source-specific SIP

revisions submitted by the

Commonwealth for all the sources

located in Allegheny, Armstrong,

Beaver, Butler, Fayette, Washington,

and Westmoreland counties. On August

24, 2001, EPA proposed to convert the

limited approval of the

Commonwealth's NOx and VOC RACT

regulation to full approval in the

Pittsburgh area. EPA has taken final

action on that proposal and converted

the limited approval of the

Commonwealth's NOx and VOC RACT

regulation to full approval. The

Commonwealth has met the

requirements of the Act's RACT

provisions for the Pittsburgh area.

The Act requires that states adopt

regulations to impose RACT for "major

sources of VOC," located within those

areas of a state where RACT applies

under Part D of the Act [182(b)(2)(C)].

This requirement, referred to as the nonCTG VOC RACT requirement, clearly

does not require category-specific RACT

rules. Moreover, EPA disagrees that

there is a statutory mandate that a state

adopt a source category RACT

regulation even for a source category

where EPA has issued a CTG. There are

two statutory provisions that address

RACT for sources covered by a CTG.

One provides that states must adopt

RACT for "any category of VOC

sources" covered by a CTG issued prior

to November 15, 1990 [182(b)(2)(A)].

The other provides that states must

adopt VOC RACT for all "VOC sources"

covered by a CTG issued after November

15, 1990 [182(b)(2)(B)]. EPA has long

interpreted the statutory RACT

requirement (including the

requirements for CTG RACT) to be met

either by adoption of category-specific

rules or by source-specific rules for each

source within a category. When initially

established, RACT was clearly defined

as a case-by-case determination, but

EPA provided CTG's to simplify the

process for states such that they would

not be required to adopt hundreds or

thousands of individual rules. See

Strelow Memorandum dated December

9, 1976 and 44 FR 53761, September 17,

1979. EPA does not believe that

Congress' use of "source category" in

one provision of section 182(b)(2) was

intended to preclude the adoption of

source-specific rules.

Thus, where CTG-subject sources are

located within those areas of a state

where RACT applies under Part D of the

Act, the state is obligated to impose

RACT for the same universe of sources

covered by the CTG. However, that

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obligation is not required to be met by

the adoption and submittal of a source

category RACT rule. A state may,

instead, opt to impose RACT for

individual sources in permits, plan

approvals, consent orders or in any

other state enforceable document and

submit those documents to EPA for

approval as source-specific SIP

revisions. This option has been

exercised by many states, and happens

most commonly when only a few CTGsubject sources are located in the state.

The source-specific approach is

generally employed to avoid what can

be a lengthy and resource-intensive state

rule adoption process for only a few

sources that may have different needs

and considerations that must be taken

into account.

While EPA believes that the

Commonwealth was not obligated to

impose RACT via the adoption of VOC

source category rules for the reasons

provided above, nonetheless, EPA has

approved the Commonwealth's VOC

source category rules for aerospace (June

25, 2001, 66 FR 33645) and for wood

furniture (July 20, 2001, 66 FR 37908).

In a letter from the PADEP (then the

Pennsylvania Department of

Environmental Resources), dated April

19, 1993, the Commonwealth made

negative declarations for the CTG source

categories of large petroleum dry

cleaners, and equipment leaks from

natural gas/gasoline processing plants.

The Commonwealth made a negative

declaration on September 28, 2001 for

point source shipbuilding emissions in

the counties of Armstrong, Butler,

Beaver, Fayette, Washington, and

Westmoreland. The Allegheny County

Health Department (ACHD) made a

negative declaration on September 27,

2001, for subject shipbuilding sources in

Allegheny County.

The public has had opportunity to

comment on three occasions on the

generic RACT rule. In addition, EPA

provided comment periods for its

approval of each source specific rule, as

well as for each of the category rules.

Furthermore, EPA recently published

approval notices for all remaining case

specific RACT determinations for

sources located in the Pittsburgh area

and the public did indeed exercise their

right to comment on those proposed

actions. EPA disagrees that the public

has not had adequate opportunity to

offer fully informed comment as to

whether the plan submitted by the

Commonwealth meets all of the

applicable requirements of section 110

and part D of the Act. The public has

had ample opportunity to comment on

the RACT regulations adopted by the

Commonwealth, and EPA is entitled to

rely on these previously-approved rules

in determining that the State has a SIP

that meets those applicable

requirements. See Southwestern

Pennsylvania Growth Alliance v.

Browner, 144 F.3d 984, 989 (6th Cir.

1998).

EPA disagrees with the commenter

that it is "retroactively" deeming that

the State has complied with the RACT

requirements of the Act. With respect to

many of these source-specific rules, the

source has been subject to and

complying with the requirements for an

extended period of time. Simply

because EPA is only now taking action

on those rules does not mean that the

State or the source failed to meet the

statutory RACT obligation. Finally, to

the extent that the State and/or the

source is late in meeting the statutory

RACT obligation, EPA does not believe

that Congress intended that such an area

could never be redesignated to

attainment, as the commenter appears to

suggest. At this point, the best such an

area can do is to meet the requirement

as quickly as possible-the area cannot

retroactively comply. Thus, EPA

believes that Congress intended that

once such an area complied with the

statutory requirements-as is the case

with Pittsburgh-the area may be

redesignated.

(4) New Source Review (NSR)

Comment: We received several

comments regarding NSR and its

approval into the SIP. The commenters

assert that the Act explicitly requires the

SIP to include a preconstruction permit

program for new sources and

modifications within the nonattainment

area. (42 U.S.C. section 7410(a)(2)(C),

7502(c)(4)&(5), 7503, 7511a(a)(2)(C),

(b)(5)). The commenters assert that the

NSR program should not be approved

without an approved attainment

demonstration in the Pittsburgh area.

One commenter also asserts that EPA

cannot approve the Commonwealth's

rule without first promulgating

"Alternative 2" of the federal NSR rule

revision. This commenter also asserts

that approval of the Commonwealth's

NSR program is in conflict with section

184 of the Act, because the

Commonwealth's NSR rule does not

require the same offset credit

restrictions in the marginal and

attainment areas as required by section

184 of the Act. One of the commenters

also contends that the NSR program's

conditional approval status has expired

and should already have been converted

to a disapproval. This commenter also

asserts that the EPA-required

restrictions on shutdown credit are

lacking in the program.

Response: As indicated, pursuant to

EPA's issuance of an attainment

determination for the Pittsburgh area, an

approved attainment demonstration is

no longer an applicable requirement.

EPA has, however, now fully approved

the NSR program for the Pittsburgh area.

On May 2, 1997, EPA proposed to grant

limited approval of Pennsylvania's NSR

program (62 FR 24060). On December 9,

1997 (62 FR 64722) EPA published its

final rule granting limited approval of

Pennsylvania's NSR program and

incorporated 25 Pa. Code of Regulations,

Chapter 127, Subchapter E, Subsections

127.201 through 127.217, inclusive, by

reference into the Pennsylvania SIP.

(See 40 CFR part 52 at 52.2020(c)(107).)

The proposed and final actions

provided a detailed description of how

the Commonwealth's NSR regulations

satisfy the requirements of sections 172,

173, 182 and 184 of the Act. As

explained in section I. C. of the May 2,

1997 notice of proposed rulemaking (62

FR 24061), under section 184 of the Act,

the preconstruction permitting

requirements applicable to moderate

ozone nonattainment areas apply to

ozone attainment areas and to marginal

and moderate ozone nonattainment

areas in the Commonwealth because

Pennsylvania is located in the Ozone

Transport Region (OTR). Section II. A.

of the May 2, 1997 proposal (62 FR

24062) explicitly states that

Pennsylvania's NSR requirements for

moderate ozone nonattainment areas

apply throughout Pennsylvania with the

exception of the Philadelphia severe

ozone nonattainment area. Subsections

127.203, 127.208, and 127. 210 of the

Commonwealth's SIP-approved

regulations, in particular, satisfy section

184 of the Act by imposing the same

offset-related requirements to

attainment, and marginal nonattainment

areas of the Commonwealth as those

applicable to moderate ozone

nonattainment areas.

On December 9, 1997, when EPA

approved Pennsylvania's NSR

regulations into the SIP, its sole reason

for granting limited approval, rather

than full approval, of Pennsylvania's

NSR regulations was that they do not

contain certain restrictions on the use of

emission reductions from the shutdown

and curtailment of existing sources or

units as NSR offsets. These restrictions

apply in nonattainment areas without

an approved attainment demonstration

(see 40 CFR part 51.165(a)(ii)(C)). (The

submittal and approval of an attainment

demonstration is not required by the Act

for ozone nonattainment areas classified

as marginal, nor is it required in areas

designated as attainment for ozone.) As

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EPA is, by this action, approving the

attainment determination for the

Pittsburgh area proposed on January 10,

2001 (66 FR 1925), approval of an

attainment demonstration is not a

requirement for the Pittsburgh area.

Pursuant to EPA's determination of

attainment, an attainment

demonstration is no longer required,

and thus similarly, an approved ozone

attainment demonstration is no longer

required under the NSR provisions for

ozone. Since the premise of 40 CFR

51.165(a)(ii)(C)(1), that an attainment

demonstration is required, does not

exist, EPA concludes that the regulation

should be interpreted so as not to

require an approved attainment

demonstration where no attainment

demonstration is required. Therefore,

EPA has determined that it is

appropriate, at this time, to grant full

approval of the Commonwealth's NSR

regulations as they apply throughout the

Commonwealth with the exception of

the five-county Pennsylvania portion of

the Philadelphia-Wilmington-Trenton

ozone nonattainment area. That area is

the only portion of the Commonwealth

where the approval of an attainment

demonstration is still required. EPA

intends to take rulemaking action to

grant full approval of the

Commonwealth's NSR regulations in the

five-county Pennsylvania portion of the

Philadelphia-Wilmington-Trenton

ozone nonattainment area at such time

as that area has an approved attainment

demonstration.

It should be noted that when EPA

proposed to remove the limited nature

of its approval of the Commonwealth's

NSR program on May 30, 2001, it clearly

was not taking action to re-approve

Pennsylvania's entire NSR program.

Therefore, not only does EPA disagree

with the comments that the

Commonwealth's NSR regulations fail to

satisfy the Act and the current Federal

NSR-related requirements for

nonattainment areas found at 40 CFR

Subpart I, EPA does not believe that

such comments are timely.

Because Pennsylvania's NSR

regulations satisfy the current federal

NSR-related requirements for

nonattainment areas found at 40 CFR

Subpart I, EPA disagrees with the

comment that it cannot grant approval

of the Commonwealth's NSR without

first promulgating "Alternative 2" of the

proposed revisions to the federal NSR

rules. The commenter's reference to

Alternative 2 refers to language in the

July 23, 1996 NSR rulemaking proposal

which has not been finalized, and

therefore the Agency believes that it is

not currently an applicable NSR

requirement.

EPA did not grant the

Commonwealth's NSR program a

conditional approval, and, therefore

disagrees with the comment that any

conditional approval has expired and

should have been converted to a

disapproval.

Even if the NSR program for

Pittsburgh were not fully approved the

area would still qualify for

redesignation, since EPA has previously

interpreted the Clean Air Act as not

requiring a fully approved NSR program

for redesignation of an area subject to

the section 184 transport requirements.

EPA has set forth its rationale for its

interpretation that NSR and other

section 184 ozone transport

requirements are inapplicable for

redesignation purposes in its proposed

and final rulemakings on Reading,

Pennsylvania. See 61 FR 53174-53176

(October 10, 1996) and 62 FR 24826-

24834 (May 7, 1997), which are

incorporated herein by reference.

(5) Conformity

Comment: Several commenters

asserted that the SIP does not include

fully approved transportation

conformity procedures that comply with

Part D of the Act under section 176, and

that EPA has no authority to waive this

requirement for SIPs. One commenter

argues that the Commonwealth is still

obligated to submit such procedures and

the fact that federal procedures apply

does not excuse failure to adopt

conformity procedures as required by

the statute. The commenter contends

that the Act allows redesignation to

attainment only when EPA has fully

approved the SIP and the state has met

all requirements applicable to the area

under section 110 and Part D.

Response: The Commonwealth of

Pennsylvania has met the statutory

requirement for submitting approvable

general conformity procedures. EPA

approved the Pennsylvania general

conformity rules effective September 29,

1997 (62 FR 50870).

Section 176(c) provides that state

conformity revisions must be consistent

with Federal conformity regulations that

the CAA requires EPA to promulgate.

The Federal general conformity

regulations were finalized on November

30, 1993, and the Federal transportation

conformity regulations were finalized

on November 24, 1993. The Federal

general conformity regulations have

remained the same since that time, but

the Federal transportation conformity

regulations have been amended several

times since 1993.

The Federal transportation conformity

regulations were amended on August

15, 1997 (40 CFR parts 51 and 93

Transportation Conformity Rule

Amendments: Flexibility and

Streamlining). Conformity regulations

needed to be revised again, due to the

March 2, 1999 court decision,

Environmental Defense Fund v. EPA,

167 F. 3d 641 (D.C. Cir. 1999).

Pennsylvania submitted transportation

conformity rules on November 21, 1994,

but EPA has not acted upon the rules

and the rules must be revised to be

consistent with the amendments EPA

made consistent with the court rulings

in EDF. v. EPA, supra.

EPA believes, however, that it is

reasonable to interpret the conformity

requirements as not applying for

purposes of evaluating the redesignation

request under section 107(d). The

rationale for this is two-fold. First, the

requirement to submit SIP revisions to

comply with the conformity provisions

of the Clean Air Act continues to apply

to areas after redesignation to

attainment, since these areas would be

subject to a Section 175A maintenance

plan. Second, EPA's Federal conformity

rules require the performance of

conformity analyses in the absence of

federally approved State rules.

Therefore, because areas are subject to

the conformity requirements regardless

of whether they are redesignated to

attainment and must implement

conformity under Federal rules if State

rules are not yet approved, EPA believes

it is reasonable to view these

requirements as not applying for

purposes of evaluating a redesignation

request. See, for example, Grand Rapids

redesignation at 61 FR 31835-31836

(June 21, 1996) and the Cincinnati

redesignation at 65 FR 37879, 37885-

37886 (June 19, 2000). EPA has

explained its rationale and applied this

interpretation in numerous

redesignation actions. See, Tampa,

Florida and Cleveland-Akron-Lorain

redesignations (60 FR 52748) (December

7, 1995), and (61 FR 20458) (May 7,

1996), respectively. Consequently, EPA

may approve the ozone redesignation

request for the Pittsburgh area

notwithstanding the lack of a fully

approved conformity SIP. The United

States Court of Appeals for the sixth

Circuit has recently upheld EPA's

interpretation in Wall v. Environmental

Protection Agency, no. 00-4010, slip.

op. at 21-24 (6th Cir. Sept. 11, 2001).

The Court upheld EPA's determination

that "failure to submit a revision * * *

that meets the part D transportationconformity submissions requirements is

not a basis to deny" redesignation to

attainment. Id. at 24.

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(6) Approval of the NOx SIP Call

Comment: A commenter states that

the SIP must include provisions to

prohibit emissions that will contribute

significantly to nonattainment in, or

interfere with maintenance by any other

State under 42 U.S.C. section

7410(a)(2)(D)(I). The commenter asserts

that EPA has specifically determined

that emissions from Pennsylvania

contribute significantly to ozone

nonattainment in downwind states and

has issued a SIP call to require

additional NOx controls in the

Pennsylvania SIP to address this

problem. The commenter asserts that

EPA has not fully approved the state's

rule to meet the SIP call requirements,

thus the SIP is not yet fully approved.

Response: EPA believes that

submissions under the NOx SIP call

should not be considered applicable

requirements for purposes of evaluating

a redesignation request. That said, EPA

has fully approved the Commonwealth's

NOx SIP call rule on August 21, 2001

(66 FR 43795) as meeting the portion of

the SIP call rule that were not remanded

by the Court in Michigan v. EPA, 213 F.

3d. 663 (D.C. Cir. 2000).

The NOx SIP call requirements are

not linked with a particular

nonattainment area's designation and

classification. EPA believes that the

requirements linked with a particular

nonattainment area's designation and

classification are the requirements that

are the relevant measures to evaluate in

reviewing a redesignation request. The

NOx SIP call submittal requirements

continue to apply to the States

regardless of the designation of any one

particular area in these States.

Thus, we do not agree that the NOx

SIP call submission should be construed

to be an applicable requirement for

purposes of redesignation. 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

conformity and oxygenated fuels

requirements, as well as with section

184 ozone transport requirements. See

Reading, Pennsylvania proposed and

final rulemakings (61 FR 53174-53176)

(October 10, 1996), (62 FR 24826) (May

7, 1997); Cleveland-Akron-Lorain, Ohio

final rulemaking (61 FR 20458) (May 7,

1996); and Tampa, Florida final

rulemaking at (60 FR 62748, 62741)

(December 7, 1995). See also the

discussion on this issue in the

Cincinnati redesignation (65 FR 37890)

(June 19, 2000).

(7) Photochemical Grid Modeling and

Favorable Meteorology

Comment: The commenter asserts that

neither the states nor EPA have shown

that air quality improvements are due to

permanent and enforceable emission

reductions, as required by 42 U.S.C.

7407(d)(3)(E)(iii). The commenter takes

issue with the finding that this criteria

is met because, although the

Commonwealth has adopted measures

that have produced some emission

reductions, the commenter believes that

EPA has not demonstrated that these

reductions are responsible for the area's

improved air quality or the absence of

violations. The commenter claims that

the only way to reliably make such a

showing would be through

photochemical grid modeling. The

commenter states that no such modeling

is presented or discussed in this

proposal and that given the complex

chemistry and meteorology of ozone

formation, the combination of NOx and

VOC emission reductions that might be

attributable to the cited measures could

just as easily lead to increases in ozone

concentrations. The lack of violations in

1998-2000, the commenter states, could

just as well be due to weather patterns

or changes in transport of ozone

precursors. Without modeling to

determine the actual impact of adopted

and enforceable controls, the

commenter finds EPA's claim that the

area has attained the NAAQS, to be

speculative.

Another commenter asserted the area

was aided in attainment by a 2000

ozone season in which there were no

temperatures which exceeded 90

degrees Fahrenheit.

Response: As provided in

longstanding EPA policies, we believe

that photochemical grid modeling is not

necessary to show that the improvement

in air quality is due to permanent and

enforceable emissions reductions. See

General Preamble for the Interpretation

of Title I of the CAA Amendments of

1990, (57 FR 13496) (April 16, 1992),

supplemented at 57 FR 18070 (April 28,

1992); "Procedures for Processing

Requests to Redesignate Areas to

Attainment," John Calcagni, Director,

Air Quality Management Division,

September 4, 1992; "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," Michael H.

Shapiro, Acting Assistant Administrator

for Air and Radiation, September 17,

1993; and "Use of Actual Emissions in

Maintenance Demonstrations for Ozone

and CO Nonattainment Areas," D. Kent

Berry, Acting Director, Air Quality

Management Division, November 30,

1993. Our policies provide that an area

may meet this requirement by showing

how its ozone precursor emissions

changed due to permanent and

enforceable emissions reductions from

when the area was not monitoring

attainment of the 1-hour ozone NAAQS

to when it reached attainment. See the

rational set forth in the Cincinnati

redesignation (65 FR 37879, 37886-

37889) (June 19, 2000). The sixth Circuit

has recently upheld EPA's

interpretation in Wall v. EPA, supra,

slip. op at 16-20.

Reductions in ozone precursor (VOC

and NOx) emissions have brought many

areas across the country into attainment.

EPA has approved many ozone

redesignations showing decreases in

ozone precursor emissions resulting in

attainment of the ozone standard. See

redesignations for Charleston (59 FR

30326, June 13, 1994; 59 FR 45985,

September 6, 1994), Greenbrier County

(60 FR 39857, August 4, 1995),

Parkersburg (59 FR 29977, June 10,

1994); (59 FR 45978, September 6,

1994), Jacksonville/Duval County (60 FR

41, January 3, 1995), Miami/Southeast

Florida (60 FR 10325, February 24,

1995), Tampa (60 FR 62748, December

7, 1995), Lexington (60 FR 47089,

September 11, 1995), Owensboro (58 FR

47391, September 9, 1993), Indianapolis

(59 FR 35044, July 8, 1994; 59 FR 54391,

October 31, 1994), South Bend-Elkhart

(59 FR 35044, July 8, 1994; 59 FR 54391,

October 31, 1994), Evansville (62 FR

12137, March 14, 1997; 62 FR 64725,

December 9, 1997), Canton (61 FR 3319,

January 31, 1996), Youngstown-Warren

(61 FR 3319, January 31, 1996),

Cleveland-Akron-Lorain (60 FR 31433,

June 15, 1995; 61 FR 20458, May 7,

1996), Clinton County (60 FR 22337,

May 5, 1995; 61 FR 11560, March 21,

1996), Columbus (61 FR 3591, February

1, 1996), Kewaunee County (61 FR

29508, June 11, 1996; 61 FR 43668,

August 26, 1996), Walworth County (61

FR 28541, June 5, 1996; 61 FR 43668,

August 26, 1996), Point Coupee Parish

(61 FR 37833, July 22, 1996; 62 FR 648,

January 6, 1997), and Monterey Bay (62

FR 2597, January 7, 1997). Most of the

areas that have been redesignated to

attainment for the 1-hour ozone

standard have continued to attain it.

Areas that are not maintaining the 1-

hour ozone standard have a

maintenance plan to bring them back

into attainment.

Reductions in ozone precursor

emissions have been shown in

photochemical grid modeling to reduce

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ambient ozone concentrations in areas

across the country. Between 1990 and

1999 area-wide VOC and NOx emissions

in the Pittsburgh area decreased by 16%

and 30%, respectively. These emissions

reductions are due to point source

reductions such as RACT, additional

NOx controls, 111(d) plans and National

Emission Standards for Hazardous Air

Pollutants (NESHAPS) which reduce

VOCs, Prevention of Significant

Deterioration (PSD), and NSR.

Additional controls are implemented for

the following categories: Automobile

refinish coatings, consumer products,

architectural and industrial

maintenance coatings, wood furniture

coatings, aircraft surface coating, marine

surface coatings, metal furniture

coatings, municipal solid waste

landfills, treatment storage and disposal

facilities, and Stage II vapor recovery.

Several programs are implemented to

reduce highway vehicle emissions, such

as the Federal Motor Vehicle Control

Program (FMVCP), a Pittsburgh-specific

summertime gasoline 7.8 psi volatility

limit, and enhanced Inspection and

Maintenance (I/M). Nonroad source

programs include Federal rules for large

and small compression-ignition engines,

small spark-ignition engines, and

recreation spark-ignition marine

engines.

Ozone air quality monitoring data

show that the design value changed

from 0.149 parts per million (during the

1987-1989 time period) to 0.123 parts

per million (during the 1998-2000 time

period). The number of expected

exceedances declined from 7.0 days per

year during 1987-1989 to 1.0 days per

year during 1998-2000. This shows that

reductions in ozone concentrations

correspond to the reduction in ozone

precursors emissions in the area. The commenter claims that the

combination of NOx and VOC emissions

reductions could just as easily have led

to increases in ozone. However, the

actual monitoring data collected in the

area shows that ambient ozone

concentrations have dropped when this

combination of ozone precursor

reductions occurred. In other

metropolitan areas, other levels of VOC

and NOx reductions have also resulted

in attainment. See areas listed above in

first part of this response. The

Pittsburgh area's decrease in ozone

levels is consistent with what other

areas have experienced. The commenter

has not provided data showing that

decreases in ozone precursor emissions

have led to higher levels of ozone.

The commenter claims that the lack of

violations during 1998-2000 could be

due to weather patterns or changes in

transport of ozone precursors, but does

not point to any evidence to support

this conclusion. We use a three year

period of air quality to account for

changes in weather conditions that can

occur from year to year. Weather

condition may have a substantial effect

on ozone concentrations, both in terms

of increasing ozone and decreasing

ozone. However, this effect is not

controllable and EPA uses a three year

average to account for changes in

meteorology. In the case of the

Pittsburgh area, the fact that from 1999

to today the area continues to be in

attainment of the ozone standard

increases our confidence that weather is

not a controlling factor in the area's

attainment. Furthermore, during the

weeks of August 5th and August 12th of

2001, the Pittsburgh area experienced

multi-day meteorological episodes in

which the temperatures exceeded 90

degrees, and the ambient ozone levels

stayed well below the standard at each

monitor.

(8) Use of Accurate and Current

Emission Inventory

Comment: One Commenter questions

whether the Commonwealth used

current and accurate emissions

inventories in the analysis to determine

maintenance of the 1-hour NAAQS.

Response: The Commonwealth used

current and accurate emissions

inventories. The Commonwealth uses

the 1999 emissions inventory as a base

year emissions inventory for

demonstrating that emissions during the

10 year maintenance period will stay

below attainment year levels. The 1999

inventory is the appropriate inventory

to be used to demonstrate maintenance

of the NAAQS, because the 1999

inventory is a representation of

emission levels during the time the area

has attained the NAAQS. EPA converted

the conditional approval of the

Commonwealth's 1990 base year VOC

inventory to full approval on April 3,

2001 (66 FR 17634). On May 30, 2001

EPA proposed to approve the 1990 NOx

base year inventory. EPA did not

received comments specific to the 1990

NOx base year inventory and today is

fully approving the Commonwealth's

base year NOx inventory. These 1990

base year NOx and VOC emissions

inventories are approved for use in

projecting current inventories and out

year inventories.

B. Comments Related to the

Maintenance Plan

Comment: A commenter asserts that

the plan does not demonstrate

maintenance for ten years as required by

sections 107(d)(3)(E)(iv) and 175A of the

Clean Air Act. The commenter says that

EPA proposes to find maintenance not

on the basis of modeling, as required by

the CAA, but on the presumption that

the area will always be in attainment if

emissions remain at or below estimated

1999 levels. The commenter asserts that

such a presumption is not rationally

supportable, pointing out that the area

violated the NAAQS in the 1997-1999

period. Therefore, the commenter

reasons, holding emissions to 1999

levels does not assure attainment. The

commenter states that, even assuming

the emission reductions predicted by

the states for 1999 and subsequent

years, there is no technical analysis in

the record demonstrating that those

emission levels will assure

maintenance. The commenter contends

that such a demonstration requires

photochemical grid modeling that

accounts for the kinds of weather

conditions and transport impacts

experienced on appropriately chosen

design days. According to the

commenter, until EPA approves such a

modeling demonstration, it cannot

approve the maintenance plan.

The commenter states that the history

of this nonattainment area shows that

EPA cannot rationally assume that

emission levels correlate with ozone

levels in a linear or consistent fashion;

the area has gone in and out of

attainment over the past 10 years while

local emission were supposedly

declining. The commenter asserts that

there is no reason to believe that the

state's attainment inventory approach

toward projecting future maintenance is

any more reliable now than it was in

1993. The commenter states that the

state itself asserts that the area cannot

maintain compliance with the standard

solely through local reductions and will

only be able to maintain the NAAQS

through reductions from Ohio and West

Virginia.

Response: We believe that the

monitoring shows that the current level

of emissions is adequate to keep the area

in attainment. The following table

summarizes the number of expected

exceedances at each monitor in the area

for 1974 to 2000 for each three year

period. A monitor has to measure more

than 1.0 average expected exceedances

over a three year period to cause a

violation of the 1-hour ozone standard

(Expected exceedances take into

account actual monitored exceedances

and account for days where there is

missing data or the data was

invalidated.) See 40 CFR 50.9 and

Appendix H. The table shows that the

number of exceedances have decreased

from what was monitored in the late

1970's.

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TABLE 1.-1-HOUR OZONE NAAQS

EXPECTED EXCEEDANCES IN THE

PITTSBURGH AREA FROM 1974 TO

2000

Average

Year Design expected monitor exceedances

per year

1974-1976 Baden ............ 6.5

1975-1977 Beaver Falls ... 5.7

1976-1978 Beaver Falls ... 13.2

1977-1979 Beaver Falls ... 11.7

1978-1980 Lawrenceville 9.2

1979-1981 Lawrenceville 6.1

1980-1982 Lawrenceville 3.4

1981-1983 Brackenridge 4.4

1982-1984 Brackenridge 2.9

1983-1985 Brackenridge 2.4

1984-1986 Midland .......... 0.8

1985-1987 Brackenridge 1.7

1986-1988 Brackenridge 6.6

1987-1989 Brackenridge 7.0

1988-1990 Brackenridge 5.6

1989-1991 Lawrenceville 0.7

1990-1992 Lawrenceville 0.3

1991-1993 Harrison 0.7

Township.

1992-1994 .. Harrison 0.7

Township.

1993-1995 .. Harrison 3.0

Township.

1994-1996 .. Harrison 2.7

Township.

1995-1997 .. Harrison 3.3

Township.

1996-1998 .. Charleroi ........ 1.0

1997-1999 .. Penn Hills ...... 1.3

1998-2000 .. Charleroi ........ 1.0

The area has monitored attainment for

the three year period from 1998-2000

and continues to monitor attainment in

2001. This demonstrates that the current

level of emissions is adequate to keep

the area in attainment during weather

conditions as in past years associated

with higher levels of ozone. In addition,

the Act does not presume that the area

will always be in attainment. The Act

provides that if the area were to violate

the 1-hour ozone standard, then the

contingency measures in the

maintenance plan would be triggered.

This would reduce the ozone precursor

emissions and bring the area back into

attainment.

Our policy allows areas to prepare an

attainment emissions inventory

corresponding to the period when the

area monitored attainment. It also

allows areas to project maintenance by

showing that future emissions will stay

below the attainment emissions

inventory. See "Use of Actual Emission

in Maintenance Demonstrations for

Ozone and CO Nonattainment Areas,"

D. Kent Berry, Acting Director, Air

Quality Management Division,

November 30, 1993. The attainment

inventory estimates 1999 emissions,

which is within the 1998-2000 time

period of attainment. Emissions are

projected to remain below this level for

the next 10 years.

Holding emissions at or below the

level of the attainment inventory is

adequate to reasonably assure continued

maintenance of the 1-hour ozone

standard. Reductions in ozone precursor

emissions have been shown in

photochemical grid modeling to reduce

ambient ozone concentrations in areas

across the country. Photochemical grid

modeling is not needed to show that the

area has attained or will maintain the

standard. The air quality will be

maintained by keeping below the

attainment emissions level, continuing

to monitor ozone levels, and having

maintenance plan contingency measures

available. Reductions in ozone

precursor emissions have brought many

areas across the country into attainment.

Many of the ozone areas for which

EPA has approved ozone redesignations

have used an emissions inventory

approach to demonstrate maintenance.

The majority of areas have continued to

maintain the 1-hour ozone standard

using that approach. See redesignations

cited in the response provided at II. A

(7) of this document. See also

discussion at (65 FR 37887-37889) (June

19, 2000) Cincinnati-Hamilton, and Wall

v. EPA, supra, at 16-20. Emissions

inventories can be used to project

maintenance of the 1-hour ozone

standard. As previously stated, if the

attainment level of emissions is not

adequate to protect against a violation

and the area monitors a violation, then

the contingency measures in the

maintenance plan would be triggered to

bring the area back into attainment.

There are ozone monitors located in the

Pittsburgh area to ensure that the area's

air quality remains below the level set

by the 1-hour ozone standard.

The comment that EPA should not

assume that "emission levels correlate

with ozone levels in some sort of linear

or consistent fashion" is in effect a

recommendation that future

maintenance be tested assuming

meteorological conditions that are more

conducive to ozone formation than the

conditions that have prevailed in 1998

to 2000. No factor other than

meteorological conditions is known to

introduce an inconsistency between

ozone and emissions. The commenter

protests that the area has not submitted

a maintenance demonstration based on

ozone modeling, and implicitly urges

that the modeling assume 1997-type

conditions, or worse. However, if a

prospective maintenance demonstration

were performed with an ozone

photochemical model following EPA

guidance, the modeling would be

allowed to use episode days from the

1998-2000 period, not 1997. It is highly

likely, if not certain, that the outcome

would be a conclusion that attainment

will be preserved through the required

10-year period. EPA believes this

modeling guidance is reasonable and

appropriate.

In response to the commenter's

assertion that the Commonwealth does

not believe that it can maintain the

NAAQS without reductions from

upwind states such as Ohio and West

Virginia, both EPA and the

Commonwealth recognize the

importance of the full implementation

of the NOx SIP call to provide

additional air quality benefit to the

Pittsburgh area. Furthermore, as the D.C.

Circuit has largely upheld the NOx SIP

call, it is eminently reasonable to expect

that the reductions in states upwind of

Pittsburgh will occur.

C. Comments Related to the

Enforceability and Permanence of

Control Measures

(1) Comment: Several commenters

express doubts that certain of the

programs relied upon in the

maintenance plan will remain

permanent and enforceable in the

Commonwealth and asserts that EPA

simply assumes that the measures relied

on for continued and future emissions

reductions will continue to be

implemented. Related comments

express concerns over the permanence

of the enhanced I/M and NSR programs.

Response: The Act requires the area to

have a fully approved SIP and to have

met all of the applicable requirements of

the Act. The area's SIP satisfies these

requirements as described in EPA's

proposed rulemaking published on May

30, 2001 (66 FR 29270). The measures

that the Commonwealth is relying on to

maintain the 1-hour ozone standard

have been approved into the SIP and are

state and Federally enforceable. The

state must continue to implement these

measures as provided for in the

Federally approved SIP. Furthermore,

the Act does not require a separate level

of enforcement for a maintenance plan

as a prerequisite to redesignation. The

enforcement program approved for and

applicable to the SIP as a whole also

applies to the maintenance plan. See

discussion in the Cincinnati

redesignation (65 FR 37879, 37881-

37882), and sixth Circuit decision in

Wall v. EPA, supra, at 20-21, upholding

EPA's interpretation of the requirement.

All of the control measures which the

Commonwealth relied upon to generate

the 1999 and future emission levels,

inventories are SIP-approved measures,

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including the enhanced I/M and NSR

programs. These programs have been

legally adopted by the Commonwealth

and EPA has approved them into the

Pennsylvania SIP. EPA cannot withhold

its approval of the maintenance plan

submitted by the Commonwealth

because of concerns that Pennsylvania

may, at some future time, either submit

a SIP revision to amend or remove a

program, or that the Commonwealth

may fail to implement these programs in

the Pittsburgh area. The Federally

approved SIP requirements remain in

place, and enforceable until such time

as EPA takes action to approve SIP

revisions to amend or remove them.

This can only be done via Federal

rulemaking, which includes procedures

for public comment and review. In

addition, if the state fails to implement

the approved SIP, Section 179 provides

for EPA to impose sanctions.

EPA has recently promulgated rules

for On-Board Diagnostics (OBD) testing

provisions for 1996 and newer vehicles

in existing I/M programs. The

Commonwealth's currently approved

enhanced I/M SIP requires Pennsylvania

to implement OBD as part of its I/M

program in the Pittsburgh area in

accordance with the Federal rule. Any

changes the Commonwealth makes with

respect to the I/M program must ensure

an equivalent level of emission

reductions as is currently credited.

Again, any changes made to the

Federally approved and enforceable

program would need to go through

Pennsylvania's formal regulatory

adoption process and EPA's SIP

approval process, ensuring ample public

participation opportunity.

Likewise, any changes to the

Commonwealth's SIP-approved NSR

program would need to go through

Pennsylvania's formal regulatory

adoption process and EPA's SIP

approval process, ensuring ample public

participation opportunity. In order to be

approvable, any such changes would

have to ensure that the construction of

major new sources and major

modifications in the Pittsburgh area

would not interfere with the approved

maintenance plan.

Furthermore, any changes made by

the Commonwealth to SIP approved

measures would require EPA approval

in accordance with section 110 (1) of the

Act.

(2) Comment: We received a comment

asserting that the maintenance plan is

not approvable because it lacks

enforcement programs and

commitments of resources as required

by the Act 42 U.S.C. § 7410(a)(2)(E).

Response: EPA disagrees with the

commenter's assertion that states must

provide such information with each SIP

revision. See Wall v. EPA, supra.

Although Clean Air Act sections

110(a)(2)(E) and 110(a)(2)(C) do contain

these provisions, section 110(a)(2)(H) is

the statutory provision which governs

requirements for individual plan

revisions which States may be required

to submit from time to time. There are

no cross-references in section

7410(a)(2)(H) to either 7410(a)(2)(E) or

7410(a)(2)(C). Therefore, EPA concludes

that Congress did not intend to require

States to submit an analysis of adequate

funding and enforcement with each

subsequent and individual SIP revision

submitted under the authority of section

110(a)(2)(H). Once EPA approves a

State's SIP as meeting section 110(a)(2),

EPA is not required to reevaluate that

SIP for each new revision to the plan to

meet additional requirements in later

sections of the Act. The Commonwealth

of Pennsylvania had previously received

approval of its 110(a)(2) SIPs. See

discussion in the Cincinnati

redesignation of this issue (65 FR 37879,

37881-37882) (June 19, 2000). The sixth

circuit has upheld EPA's interpretation

in Wall v. EPA, supra, at 20-21.

In a final rulemaking action published

on February 26, 1985 (50 FR 7772,

7776), EPA approved Pennsylvania's

financial and manpower resource

commitments, after having proposed

approval of these commitments on

February 3, 1983 (48 FR 5096, 5101).

This approval action reaffirmed EPA's

May 20, 1980 (45 FR 33607) approval of

these resource commitments for the

Pittsburgh area portion of the

Pennsylvania ozone nonattainment SIP.

Neither this commenter nor any other

person has submitted substantive

comments that would lead EPA to

separately analyze whether it should

call on Pennsylvania to revise its section

110(a)(2) SIPs regarding enforcement

and funding.

D. Comments Related to Contingency

Measures

(1) Comment: Several commenters

assert that the maintenance plan lacks

adequate contingency provisions

including a plan for the schedule of

adoption, description of measures, or

quantification of reductions of the

measures to be implemented should the

area violate the standard. One

commenter also asserts that the plan

does not contain adequate provisions to

adopt additional measures should

inventory tracking indicate that a future

violation is possible. The commenter

states that future inventory analyses

indicating possible violations should

trigger the contingency measures.

Commenters state that the plan makes

no showing that the model VOC rules

currently under consideration for the

Philadelphia nonattainment area will

assure correction of any violations in

the Pittsburgh area and that these

measures are only under consideration.

One commenter states that the VOC

measures referenced by the

Commonwealth provide no estimation

of reductions that would be achieved in

Pittsburgh should these measures be

adopted and that adoption of these

measure could take up to two years.

One commenter asserts that the

maintenance plan submitted by the

Commonwealth does not contain a

mandatory commitment to implement

all ozone-control measures in the SIP

prior to redesignation. The commenter

contends that this commitment is

required, regardless of whether or not

the state is currently implementing all

measures and EPA does not have the

discretion to approve the maintenance

plan without this commitment.

Response: EPA disagrees that the

Commonwealth's maintenance plan for

the Pittsburgh area lacks adequate

contingency provisions should the area

violate the standard. Page 43 of the

maintenance plan specifically states that

if a violation occurs, the Commonwealth

will adopt additional emission

reductions, as expeditiously as

practicable, in accordance with the

Pennsylvania Air Pollution Control Act

to return the area to attainment with the

health-based one-hour ozone standard.

Page 44 of the maintenance plan clearly

states that its contingency plan

measures include four of the model

rules currently being considered as

additional measures for the

Philadelphia ozone nonattainment area.

The plan specifically states that these

VOC model rules have the potential to

reduce emissions from specific types of

sources and source operations, namely

consumer products, portable fuel

containers, Architectural and Industrial

Maintenance (AIM) coatings and solvent

cleaning operations. The

Commonwealth has provided to EPA

estimations of reductions in VOC

emissions that would be achieved by

adoption of these contingency measures

in the seven-county Pittsburgh area.

This information has been added to the

docket for this final rule.

The Commonwealth has also supplied

information that sets forth the schedule

for adoption of regulations under the

Pennsylvania Air Pollution Control Act,

and that information has been placed in

the docket of this final action. The

schedule indicates that Pennsylvania

would move to adopt and implement

contingency measures within 12 to 24

months of a violation. The

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Commonwealth has also stated that the

contingency measures would be

implemented in accordance with the

requirement of section 175A(d) of the

Clean Air Act that they "promptly

correct any violation." As stated in the

September 4, 1992 Calcagni

memorandum, "For purposes of section

175A, a State is not required to have

fully adopted contingency measures that

will take effect without further action by

the State in order for the maintenance

plan to be approved. However, the

contingency plan is considered to be an

enforceable part of the SIP and should

ensure that the contingency measures

are adopted expediently once they are

triggered." In light of the language of the

maintenance plan, the supplemental

information supplied by the

Commonwealth, existing EPA guidance

and actions regarding contingency

measures in other redesignations, and

the absence of any suggestion to the

contrary from the Commonwealth, EPA

is construing the Pittsburgh

maintenance plan as embodying a

commitment to adopt and implement

contingency measures within 12 to 24

months of a violation. The provisions

regarding the study and possible choice

of contingency measures in the event of

an exceedance or increase in the

emissions inventory provide further

assurance that air quality problems that

might occur after redesignation will be

promptly corrected.

In the event of a monitored

exceedance or if periodic emission

inventory updates reveal a greater than

10-percent increase in ozone precursor

emissions, the maintenance plan

requires the Commonwealth to evaluate

whether additional emission controls

are needed to prevent a future 1-hour

ozone NAAQS violation. EPA views this

commitment to be adequate and

enforceable. This approach is consistent

with the September 4, 1992 Calcagni

memorandum, which states that the

maintenance plan should "identify

specific indicators, or triggers, which

will be used to determine when the

contingency measure need to be

implemented. * * * The indicators

would allow the State to take early

action to address potential violations of

the NAAQS before they occur." See

September 4, 1992, Calcagni memo, p.

12. Pennsylvania's plan addresses this

requirement by identifying two

occurrences that trigger a study to

evaluate whether further emission

control measures should be

implemented. This will allow the

Commonwealth to take early action to

address future potential violations. It

requires the Commonwealth to fully

evaluate the current air quality status

and control status of the area, and

determine if, and what level of, action

should be implemented to prevent

further air quality deterioration.

As to the comment regarding

implementation of SIP measures as

contingency measures, EPA does not

believe that a further commitment is

needed from the Commonwealth to

implement as contingency measures all

ozone control measures in the SIP prior

to redesignation. Section 175(A)(d)

requires that "[s]uch provisions shall

include a requirement that the State will

implement all measures with respect to

the control of the air pollutant

concerned which were contained in the

State Implementation plan for the area

before redesignation of the area as an

attainment area." There are no measures

in the Pennsylvania SIP to which the

section 7505(d) commitment language

could apply since the Commonwealth

has not sought to drop any measures

from the portion of the SIP that is being

implemented. All measures that are

either already implemented or

scheduled to be implemented, e.g., the

NOX SIP call, are still in the SIP and are

required to be implemented. There is

thus no need for the state to commit to

further implementation in light of the

fact that it is required to continue to

implement all measures contained in its

SIP. Since the section 7505(d)

requirement to implement all measure is

being satisfied, there is no requirement

for an additional commitment. The State

could not make any change in

implementation of these control

measures after redesignation without

EPA approval of a SIP revision. Such a

revision would have to meet the

requirements of section 110(1) which

requires that the revision could not

interfere with any applicable

requirement. Under these circumstances

EPA considers that the requirement of

section 7505(d) is satisfied.

With respect to the NOx SIP call,

which has an implementation deadline

in the Commonwealth in 2003, EPA

disagrees that this SIP element is

necessary for redesignation (see

comment(6)), and therefore no

additional commitment is needed from

the Commonwealth regarding this SIP

element.

(2) Comment: A commenter asserts

that Stage II vapor recovery, auto

refinishing, consumer products, and

AIM are listed as contingency measures

and this is double counting.

Response: Stage II, auto refinishing,

consumer products and AIM are state

and Federal programs currently

implemented in the Pittsburgh area.

These programs have assisted in

bringing the area into attainment and

will continue help the area maintain the

ozone NAAQS and are not listed as or

considered to be contingency measures.

There is no "double counting".

E. Comments Related to the Monitoring

Data and the Monitoring Network

(1) Comment: We received comments

asserting that the three years of data that

should be analyzed for demonstration of

attainment are 1994-1996. We also

received a comment asking if the

Pittsburgh-Beaver Valley 1999 and 2000

ozone data had been quality assured.

Response: EPA is taking action to

approve a determination of attainment

and a redesignation request and

maintenance plan for the Pittsburgh

area. The three years of violation free

data upon which the determination of

attainment is based, which the

Commonwealth submitted to satisfy the

applicable criteria for its redesignation

request, is the ozone data for the 1998,

1999, and 2000 ozone seasons. EPA

policy is to consider at the most recent

3 year period to determine attainment.

The ozone data for the 1998, 1999, and

2000 ozone seasons from the 14 ozone

monitoring stations in the PittsburghBeaver Valley Area have been quality

assured. All data were contained in the

EPA AIRS Air Quality Subsystem (AQS)

by December 4, 2000. All data in AIRS

is quality assured prior to submittal to

AIRS, as required by 40 CFR 58.35(d).

(2) Comment: We received comments

expressing concern about the removal

from service of the Penn Hills station

during June 2001. The comments assign

significance to the two exceedances that

this station detected in 1999. One

comment points out that the station had

previously had monitored violations of

the one hour NAAQS. Related

comments express concern about the

adequacy of the ozone network operated

by PADEP and the Allegheny County

Health Department (ACHD) in the

Pittsburgh-Beaver Valley Area and state

that there should not be a change or

substitution of any monitor until

attainment has been achieved.

Response: Since the early 1980's the

network in the area has satisfied the

minimum federal requirements for the

number of stations and types of stations

as set forth at 40 CFR part 58. At a

minimum, a network must have two

stations in each urban area with

population greater than 200,000. 40 CFR

part 58, Appendix D, § 3.4. The original

Pittsburgh-Beaver Valley network

consisted of four stations in Allegheny

County and two stations each in

Washington County and Beaver County.

EPA regulations contemplate that the

monitoring network may change over

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time, regardless of whether or not an

area is currently designated as

attainment. In an effort to improve the

overall quality of data from the

Pittsburgh-Beaver Valley area, the

network has grown over time from the

original eight to thirteen stations. This

growth was carried out in accordance

with state and federal law through a

process of annual network reviews by

the PADEP and the Allegheny County

Health Department (ACHD) as required

by 40 CFR 58.20(d). EPA participated in

these reviews and network changes, as

required by 40 CFR 58.21. EPA also

approved the annual network designs in

accordance 40 CFR 58.25. Past annual

reviews identified potential data needs

of the Pittsburgh-Beaver Valley network.

In order to address these potential data

needs, the network has expanded to its

current size of thirteen stations. During

this time, one of the original monitoring

stations, Penn Hills, was retired from

service, and six new stations were

added, for a net growth of five stations

during the 1990's.

The Penn Hills station was removed

from service because of the limited

value of the data collected there since it

was established in the early 1980's.

Significantly, this station has not shown

a violation of the ozone standard since

1982. Furthermore, the net addition of

five monitors to the Pittsburgh-Beaver

Valley network during the 1990's

provides monitoring coverage over an

area than is inclusive of the area

previously monitored by Penn Hills.

This resulted in the Penn Hills site

capturing data redundant of data

collected at other monitors. Specifically,

exceedances at the Penn Hills monitor

were captured at other stations. For

example, since 1987, all unhealthy days

detected at Penn Hills, except for June

19, 1995, were captured by the

Brackenridge station (or the Harrison

station which replaced Brackenridge in

1990). On June 19, 1995, when the Penn

Hills station identified ozone

exceedances, the Lawrenceville station,

and the Murryville station, also showed

exceedances. The two days of

exceedances in 1999 detected at Penn

Hills were captured by three other

stations, Harrison, Lawrenceville, and

Greensburg. Therefore, the closing of the

Penn Hills station will result in no loss

of data.

(3) Comment: We received a comment

expressing concern that the Penn Hills

station ozone data and the South Fayette

station ozone data are no longer

reported on the Pennsylvania

Department of Environmental Protection

(PADEP) web page.

Response: The PADEP web site does

not list the Penn Hills station because

that station was taken out of service in

June 2001. (See the comment and

response provided at E.(2)) The

commenter found no data for South

Fayette, because no exceedances were

detected at this operating station as of

the date of the commenter's letter. There

are no statutory or regulatory

requirements that PADEP make its

ozone data available on the Internet.

However, in service to the citizens of

the Commonwealth, it is PADEP's

practice to provide daily information on

its web page indicating those

monitoring locations where exceedances

of the 1-hour and/or 8-hour ozone

standards have occurred (cautioning

that this information is not based upon

data that has been validated). If PADEP

continues with its current practice,

ozone data from the South Fayette

monitor will be reported on the PADEP

web site if this monitor ever exceeds the

ozone standards.

(4) Comment: Several commenters

expressed doubt that the area had

attained the standard and suggested that

violations in 2001 were imminent. One

commenter asserts that the fact that the

area had violated the 8-hour standard

does not speak well of its being

redesignated.

Response: The quality assured ozone

data for 1998, 1999 and 2000 indicate

that the Pittsburgh area has attained of

the 1-hour NAAQS. Moreover, the

preliminary data for the 2001 ozone

season indicate, to date, continued

attainment of the 1-hour standard. EPA

does not believe that violations of the 1-

hour standard are imminent in the

Pittsburgh area.

The Pittsburgh area's status with

respect to the 8-hour ozone standard is

not germane to the approval of the

redesignation request and maintenance

plan for the 1-hour ozone standard.

III. What Actions Are We Taking?

We are determining that the

Pittsburgh-Beaver Valley moderate

ozone nonattainment area has attained

the NAAQS for ozone. The Pittsburgh

area includes the Pennsylvania counties

of Allegheny, Armstrong, Beaver, Butler,

Fayette, Washington, and

Westmoreland. On the basis of this

determination, EPA is also determining

that certain attainment demonstration

requirements (section 172(c)(1)), along

with certain other related requirements,

of part D of Title 1 of the Act,

specifically the section 172(c)(9)

contingency measure requirement, the

section 182(b)(1) attainment

demonstration requirement are not

applicable to the Pittsburgh area.

We are approving the redesignation of

the Pittsburgh area to attainment of the

1-hour ozone standard and we are

approving the section 175A

maintenance plan as a revision to the

Pennsylvania SIP. By approving the

Pittsburgh area maintenance plan, EPA

is also approving the Motor Vehicle

Emissions Budgets contained in the

plan as adequate for maintenance of the

ozone NAAQS and for transportation

conformity purposes. These Motor

Vehicle Emissions Budgets are 109.65

tons/day of VOC for 1999, 98.22 tons/

day of VOC for 2007, and 102 tons/day

of VOC for 2011; for NOx the Motor

Vehicle emissions budgets are 171.05

tons/day for 1999, 129.12 tons/day for

2007, and 115.02 tons/day for 2011.

We are converting the limited

approval of the NSR program in the

Commonwealth to full approval

everywhere in the Commonwealth with

the exception of the Pennsylvania

portion of the Philadelphia-WilmingtonTrenton ozone nonattainment area.

We are approving the 1990 NOx base

year emissions inventory for the

Pittsburgh area.

IV. Why Are We Taking This Action To

Redesignate the Area?

We are making a determination that

the area has attained the 1-hour ozone

standard. EPA is basing this

determination upon three years of

complete, quality-assured, ambient air

monitoring data for the 1998-2000

ozone seasons that demonstrate that the

ozone NAAQS has been attained in the

entire Pittsburgh area. Preliminary data

for the 2001 ozone season also indicates

that the area continues in attainment.

EPA believes that it is reasonable to

interpret provisions regarding

attainment demonstrations, along with

certain other related provisions, not to

require SIP submissions if an ozone

nonattainment area subject to those

requirements is monitoring attainment

of the ozone standard (i.e., attainment of

the NAAQS is demonstrated with three

consecutive years of complete, quality

assured, air quality monitoring data).

See May 10, 1995, memorandum from

John Seitz, and Sierra Club v. EPA, 99

F.3.d 1551 (10th Cir. 1996).

We are approving the maintenance

plan as a revision to the SIP because it

meets the requirements of section 175A

and 107(d). We are also redesignating

the area because three years of ambient

air monitoring data demonstrate that the

ozone NAAQS has been attained, the

area has continued in attainment and

the area has satisfied all other

requirements for redesignation.

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V. What Are the Effects of

Redesignation to Attainment of the 1-

Hour NAAQS?

These actions determine that the area

attained the 1-hour ozone standard and

that the requirements of section

172(c)(1) and 182(b)(1) concerning the

submission of the ozone attainment

demonstration and the requirements of

section 172(c)(9) concerning

contingency measures for reasonable

further progress (RFP) or attainment are

not applicable to the area.

The redesignation changes the official

designation of the Pennsylvania

counties of Allegheny, Armstrong,

Beaver, Butler, Fayette, Washington,

and Westmoreland from nonattainment

to attainment for the 1-hour ozone

standard. It also approves a SIP revision

that puts into place a plan for

maintaining the 1-hour ozone standard

for the next 10 years. This plan includes

contingency measures to correct any

future violations of the 1-hour ozone

standard. By approving the maintenance

plan, EPA is also approving the mobile

source emissions budgets included in

the plan for purposes of transportation

conformity.

VI. Administrative Requirements

A. General Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this 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 approves

state law as meeting federal

requirements and imposes no additional

requirements beyond those imposed by

state law. This action also redesignates

an area to attainment, 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. Accordingly, the

Administrator certifies that this 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 approves 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

(Public Law 104-4). This rule also does

not have tribal implications because it

will 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). This

action also does not have Federalism

implications because it does not 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). This action merely

approves a state rule implementing a

federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

CAA. This action also redesignates an

area to attainment. The redesignation

merely affects the status of a

geographical area, does not impose any

new requirements on sources, or allows

a state to avoid adopting or

implementing other requirements, and

does not alter the relationship or the

distribution of power and

responsibilities established in the CAA.

Thus, the requirements of section 6 of

the Executive Order do not apply to this

rule. This rule also is not subject to

Executive Order 13045 "Protection of

Children from Environmental Health

Risks and Safety Risks" (62 FR 19885,

April 23, 1997), because it is not

economically significant. In reviewing

SIP submissions, EPA's role is to

approve state choices, provided that

they meet the criteria of the CAA. 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 CAA.

Additionally, redesignation is an action

that affects the status of a geographical

area but 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. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

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 rule 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 December 18, 2001. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action, to

redesignate the Pittsburgh area to

attainment of the 1-hour ozone NAAQS,

approve a 10-year maintenance plan,

convert the New Source Review

program to full approval, approve the

NOx base year inventory, and approve

Motor Vehicle Emissions Budgets, may

not be challenged later in proceedings to

enforce its requirements. (See 42 U.S.C.

7607 (b)(2)).

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Hydrocarbons, Nitrogen dioxide, Ozone,

Reporting and recordkeeping

requirements.

40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

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Dated: October 3, 2001.

Thomas C. Voltaggio,

Acting Regional Administrator, Region IlL

40 CFR parts 52 and 81 are amended

as follows:

PART 52-[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart NN-Pennsylvania

2. Section 52.2020 is amended by

adding paragraph (c)(188) to read as

follows:

§52.2020 Identification of plan. * * * * *

(c) * * *

(188) Revisions to the Pennsylvania

Regulations including a 10-year ozone

maintenance plan for the PittsburghBeaver Valley area, submitted on May

21, 2001 by the Pennsylvania

Department of Environmental

Protection.

(i) Incorporation by reference.

(A) Letter dated May 21, 2001

submitted by the Pennsylvania

Department of Environmental Protection

transmitting the maintenance plan for

Pittsburgh-Beaver Valley Area.

(B) The Pittsburgh-Beaver Valley Area

ozone maintenance plan submitted by

the Pennsylvania Department of

Environmental Protection, effective May

15, 2001. This plan establishes motor

vehicle emissions budgets for VOCs of

109.65 tons/day for 1999, 98.22 tons/

day for 2007, and 102 tons/day for 2011.

This plan also establishes motor vehicle

emissions budgets for NOx of 171.05

tons/day for 1999, 129.12 tons/day for

2007, and 115.02 tons/day for 2011.

(ii) Additional material. Remainder of

State Submittal pertaining to the

revision listed in paragraph (c)(188)(i) of

this action.

3. Section 52.2036 is amended by

revising the section heading and by

adding paragraph (in) to read as follows:

§ 52.2036 1990 base year emission

inventory.

* * * * *

(m) EPA approves the 1990 NOx base

year emission inventory for the

Pittsburgh-Beaver Valley area,

submitted by the Pennsylvania

Department of Environmental Protection

on March 22, 1996 and supplemented

on February 18, 1997.

§ 52.2037 [Amended]

4. In § 52.2037 remove and reserve

paragraph (b)(1).

PART 81-[AMENDED]

1. The authority citation for part 81

continues to read as follows:

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

2. In § 81.339, the table for Ozone (1-

Hour Standard) is amended by revising

the entry for the "Pittsburgh-Beaver

Valley Area" to read as follows:

§81.339 Pennsylvania. * * * * *

PENNSYLVANIA-OZONE (1-HOUR STANDARD)

Designation Classification

Designated area Date 1 Type Date 1 Type

Pittsburgh-Beaver Valley Area:

Allegheny County ........................................... October 19, 2001 ........... Attainm ent

Arm strong County .......................................... October 19, 2001 ........... Attainm ent

Beaver County ............................................... O ctober 19, 2001 ........... Attainm ent

Butler County ................................................. O ctober 19, 2001 ........... Attainm ent

Fayette County .............................................. O ctober 19, 2001 ........... Attainm ent

Washington County ....................................... October 19, 2001 ........... Attainment

Westmoreland County ................................... October 19, 2001 ........... Attainment

This date is November 15, 1990 unless otherwise noted.

* * * * *

[FR Doc. 01-26093 Filed 10-18-01; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR PART 81

[CA058-FOA; FRL-7087-1]

Clean Air Act Finding of Attainment;

California-Imperial Valley Planning

Area; Particulate Matter of 10 Microns

or Less (PM-10)

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to

find that the State of California has

established to EPA's satisfaction that the

Imperial Valley Planning Area (Imperial

County), a PM-10 moderate

nonattainment area, would have

attained the national ambient air quality

standards (NAAQS) for particulate

matter of ten microns or less (PM-10) by

the applicable Clean Air Act (CAA or

the Act) attainment date, December 31,

1994, but for emissions emanating from

outside the United States, i.e., Mexico.

As a result of this final action, Imperial

County will not be subject to a finding

of failure to attain and reclassification to

serious at this time and will remain a

moderate PM-10 nonattainment area.

EFFECTIVE DATE: This action is effective

on November 19, 2001.

ADDRESSES: You can inspect copies of

the administrative record for this action

at EPA's Region 9 office during normal

business hours. U.S. Environmental

Protection Agency, Region 9, Air

Division, Planning Office (AIR-2), 75

Hawthorne Street, San Francisco,

California 94105.

Electronic Availability: This

document is also available as an

electronic file on EPA's Region 9 Web

Page at http://www.epa.gov/region09/

air.

FOR FURTHER INFORMATION CONTACT:

Doris Lo, U.S. Environmental Protection

Agency, Region 9, Air Division,

Planning Office (AIR-2), 75 Hawthorne

Street, San Francisco, California 94105,

(415) 744-1287, lo.doris@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

Imperial County is a moderate PM-10

nonattainment area located on the

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California border with Mexico, with a

December 31, 1994 attainment deadline.

Under CAA section 188(b)(2)(A),

moderate PM-10 nonattainment areas

must be reclassified as serious by

operation of law after the statutory

attainment date if the Administrator

finds that the area has failed to attain

the NAAQS. However, CAA section

179(B)(d) provides that any area that

establishes to the satisfaction of EPA

that it would have attained the PM-10

NAAQS by the applicable attainment

date but for emissions emanating from

outside the United States shall not be

subject to the provisions of CAA section

182(b).

Imperial County and the California

Air Resources Board submitted evidence

that the County would have attained the

PM-10 NAAQS but for transport from

Mexico. The primary information

prepared by the Imperial County Air

Pollution Control District (ICAPCD) is

"Imperial County PM-10 Attainment

Demonstration" (hereafter referred to as

the "179B(d) demonstration") which

was transmitted to EPA by the

California Air Resources Board (CARB)

on July 18, 2001 letter from Michael P.

Kenny, Executive Officer, CARB, to Ms.

Laura Yoshii, Acting Regional

Administrator, EPA Region 9).

Pursuant to CAA section 188(b)(2)(B)

of the Act, EPA must publish a notice

in the Federal Register identifying those

areas that failed to attain the standard

and reclassifying the areas to serious.

On August 6, 2001, EPA issued two

alternative proposals:

(1) To find that the State of California

had established to EPA's satisfaction

that Imperial County, a PM-10 moderate

nonattainment area, would have

attained the NAAQS PM-10 by the

applicable Clean Air Act attainment

date, December 31, 1994, but for

emissions emanating from outside the

United States, i.e., Mexico.

(2) Alternatively, to find that Imperial

County did not attain the PM-10

NAAQS by its CAA mandated

attainment date. This proposed finding

was based on monitored air quality data

for the PM-10 NAAQS during the years

1992-1994. A final action would result

in a reclassification to serious PM-10

nonattainment for Imperial County.

These proposed alternative actions

were published in a Federal Register

notice (66 FR 42187) on August 10, 2001

(proposed rule or notice of proposed

rulemaking, NPR). The 30-day public

comment period ended on September

10, 2001. EPA requested public

comments on both proposals and

received ten comment letters from the

following:

* Sierra Club/EarthJustice Legal Defense

Fund (David S. Baron, Attorney)

* Imperial County Air Pollution Control

District (Stephen L. Birdsall, Air

Pollution Control Officer)

* Congressman Duncan Hunter, U.S.

House of Representatives,

Washington, D.C. 20515-0552

* Imperial Valley Vegetable Growers

Association (Lauren S. Grizzle,

Executive Director)

* Imperial County Farm Bureau (Lauren

S. Grizzle, Executive Director)

* California Farm Bureau Federation

(Cynthia L. Cory, Director,

Environmental Affairs)

* Mar Vista Farms, Inc. (Michael B.

Cox, President)

* Nisei Farmers League (Manuel Cunha,

Jr., President)

* California Cotton Ginners and

Growers Association (Roger A. Isom,

Vice President & Director of Technical

Services)

* Granite Construction Company (Jeff

Mercer, Area manager)

All of the commenters supported EPA's

proposed finding of attainment pursuant

to section 179B(d) of the CAA, except

for the Sierra Club/EarthJustice Legal

Defense Fund (Sierra Club).

While the Sierra Club raises some

important issues, EPA was aware of

these issues prior to the proposed

rulemaking and has not been convinced

by Sierra Club that the State's 179B(d)

demonstration is inadequate and that

the finding of nonattainment and

reclassification to serious should be

finalized. Thus, EPA is finalizing its

action to find that the State of California

has established that Imperial County

would have attained the NAAQS for

PM-10 by the applicable CAA

attainment date, December 31, 1994, but

for emissions emanating from Mexico.

Today's rulemaking provides EPA's

responses to public comments and

finalizes EPA's proposed action.

II. Public Comments and EPA

Responses

A. Sierra Club/EarthJustice Legal

Defense Fund (David S. Baron,

Attorney)

Comments were submitted by the

EarthJustice Legal Defense Fund on

behalf of the Sierra Club. In general, the

Sierra Club opposes our proposed

finding of attainment and asserts that

the 179B(d) demonstration does not

adequately demonstrate attainment but

for the emissions emananting from

Mexico. The Sierra Club believes we

must finalize our proposed finding of

nonattainment and reclassification to

serious PM-10 nonattainment for

Imperial County.

1. CAA Requires Modeling

The Sierra Club's first group of

comments address the need for a

modeling demonstration. The Sierra

Club asserts that air quality modeling is

a requirement under CAA Section

179B(d) and that in order to qualify for

a 179B(d) waiver, the state must make

a showing that is the equivalent of an

attainment demonstration which the Act

and EPA's own regulations and

guidelines require to be based on air

quality modeling. The Sierra Club then

discusses how the State's air quality

modeling does not adequately

demonstrate attainment of the 24-hour

and annual PM-10 NAAQS due to

deficiencies with the modeling

inventory and modeling assumptions

which are summarized in EPA's

responses below.

EPA's response: EPA disagrees with

the Sierra Club that a CAA Section

179(B)(d) waiver must be based on air

quality modeling. CAA section 179B(d)

does not require air quality modeling for

PM-10 nonattainment areas at

international borders, and EPA's

guidance relating to serious PM-10

nonattainment areas suggests modeling

as one of five methods that may be used

to determine attainment but for

international transport.' In issuing

guidance on CAA section 179(B), EPA

considered it appropriate to grant states

more flexibility in making the "but-for"

attainment determination for border

areas due to the special difficulties that

can be encountered at these areas.

For example, it may be particularly

difficult for States to acquire the

necessary input data for a valid

modeling analysis, including monitored

meteorological and air quality data,

accurate speciated emissions

inventories with temporal and spatial

breakdown, and information on dayspecific emissions, when such data

must be collected in areas outside of the

U.S. The acquisition of such data is

'EPA's guidance appears in "State

Implementation Plans for Serious PM-10

Nonattainment Areas, and Attainment Date Waivers

for PM-10 Nonattainment Areas Generally;

Addendum to the General Preamble for the

Implementation of Title I of the Clean Air Act

Amendments of 1990," 59 FR 41998, August 16,

1994. The guidance lists 5 types of information that

could be used to qualify for treatment under section

179B, and provides that "States may use one or

more of these types of information or other

techniques, depending on their feasibility and

applicability, to evaluate the impact of emissions

emanating from outside the U.S. on the

nonattainment area." The General Preamble goes on

to note that "the first 3 examples do not require the

State to obtain information from a foreign country."

Only the fifth method employs modeling. 59 FR

42001. As discussed in the proposed action, the

State submitted information addressing each of the

5 methods. 66 FR 42189-90.

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resource intensive both in terms of

money and expert staff time, and the

exercise may consume years of

preparatory work and then require

additional time and expense for quality

assurance and data preparation and

analysis. In cases where the critical

modeling input data are not available or

are incomplete or inaccurate, EPA

believes that Congress could not have

intended to disallow areas from

presenting, and EPA from approving,

non-modeling evidence of "attainment

but for transport."

Although modeling input data were

recognized to be sparse, the State's

179B(d) demonstration did attempt to

address each of the 5 allowable

approaches specified in the General

Preamble, including an air quality

modeling "but-for" attainment

demonstration for both the annual and

24-hour PM-10 NAAQS.

As discussed in the proposed rule,

EPA did not base the proposed finding

of attainment for the 24-hour PM-10

NAAQS on the State's air quality

modeling demonstration. The sensitivity

of the 24-hour PM-10 NAAQS to the

modeling inputs, coupled with the lack

of model validation, led EPA to

conclude that, unlike the annual PM-10

NAAQS, the air quality modeling could

not be relied upon for the 24-hour PM10 NAAQS attainment demonstration.

Instead, EPA based its finding of

attainment for the 24-hour PM-10

NAAQS on the State's analysis of

monitoring sites, meteorological

conditions (which involves an analysis

of spatial plots, wind roses and back

trajectories) and inventory estimates for

both sides of the border. EPA believes

that these are valid alternative methods

for determining attainment but for

international transport (see General

Preamble at 59 FR 42001).

For the annual PM-10 NAAQS, model

performance assessment also raises

issues, although these concerns are less

than for the 24-hour NAAQS because

day-specific modeling inputs and

predictions are not needed. Moreover, to

determine whether or not Imperial

County would have attained the annual

PM-10 NAAQS but for international

transport does not require modeling

precision, due to the fact that the annual

arithmetic mean concentrations for

1992-1994 are only slightly above the

annual PM-10 NAAQS (51 gtg/m 3 at

Brawley and 56 gLg/m 3 at Calexico

Dichot-Grant Street). All that is required

of the model in support of a "but for"

demonstration is evidence that at least

a small portion of the monitored

concentrations was due to transport of

pollution from Mexico.

2. Adequacy of the State's Emissions

Inventory Input to the Modeling

The Sierra Club comments that the

State's modeling inventory is

insufficient because it was not

developed for PM-10 modeling, does

not reflect peak PM-10 levels, is not a "current" and "accurate" inventory, and

does not contain data on actual PM-10

emissions, but is based on the SCOS

inventory which is adjusted with

invalid assumptions (i.e., percentage of

TSP that is PM-10 and correlation of

PM-10 emissions to population).

EPA Response: While the modeling

inventory for Imperial County was not

developed specifically for PM-10

modeling, it does include PM-10

emissions and represents the best

available inventory at this time. As

discussed in EPA's Technical Support

Document (TSD) for the proposed rule,

the modeling inventory was derived

from the Southern California Ozone

Study (SCOS) modeling inventory for a

typical summer day. Seasonal

adjustments were made to the

inventory, and the inventory was scaled,

based on population changes, for the

years 1992 to 1994. The use of this

modeling inventory to represent average

annual PM-10 concentrations is an

acceptable approach, but the use of this

modeling inventory to represent peak

PM-10 days is less reliable because

emissions of PM-10 are likely to be

higher than the seasonal average on

peak days. In other words, this

inventory is more reliable for the

determining attainment of the annual

PM-10 NAAQS than for the 24-hour

PM-10 NAAQS.

EPA does not agree that the modeling

inventory is insufficient because it is

based on the SCOS inventory and

adjustments made to that inventory (i.e.,

percentage of TSP that is PM-10 and

correlation of PM-10 emissions to

population). As discussed above, the

modeling inventory developed is the

best available inventory and information

at this time. In order to develop a

modeling inventory for Imperial County,

the State took the SCOS modeling

inventory and made adjustments to

reflect the PM-10 emissions in Imperial

county. For example, the SCOS

inventory included emissions of total

suspended particulates (TSP). PM-10 is

a subset of TSP. In order to to adjust for

the SCOS inventory for PM-10

emissions, the State used an adjustment

factor of 1.93 which is based on a

comparison of the 1997 SCOS inventory

to Imperial County's 1995 PM-10

emissions inventory (best available PM10 inventory). The State also adjusted

the inventory for changes in the

population since the "vast majority of

PM-10 emission in Imperial County are

from area sources such as unpaved

roads, paved roads and agriculture." 2

While these may not be the most precise

adjustment techniques for the Imperial

County PM-10 modeling inventory,

EPA believes these adjustments are

reasonable for the annual PM-10

NAAQS.

In general, there are many

uncertainties in developing PM-10

inventories. This is partly due to

intrinsic variability, but also because

socioeconomic surrogate data and

location-specific data needed to build a

spatially and temporally resolved

inventory is sometimes not available.

However, EPA believes that the fugitive

PM-10 emission estimates and the

modeling that uses them are an

adequate basis for this action. The State

is continuously improving and updating

inventory information. The inventory

used in the State's demonstration

represents the best available PM-10

inventory for the 1992-1994 timeframe.

3. Background Concentration in the

Model

The Sierra Club comments that there

is no basis for using the annual

background concentration of 25 gLg/m 3

and that it is "the product of pure

speculation."

EPA Response: The background

concentration level was based on a

frequency distribution analysis of

measured PM-10 concentrations at

monitors in the Imperial County and

Mexicali from 1992 to 2000. 3 EPA

believes the 25 gLg/m 3 background

concentration level is a conservative

level.

4. Secondary Particles in the Model

The Sierra Club comments that the

State's modeling demonstration

includes no analysis for secondary

particle formation.

EPA Response: While there is no

specific discussion of secondary

particulates in EPA's proposed rule (66

FR 42187), the analysis provided by the

state did account for the formation of

secondary particulates. See Imperial

County PM10 Attainment

Demonstration, Chapter III.B, page 4. In

addition the Imperial Valley/Mexicali

Cross Border PM-10 Transport Study

(Transport Study) provides a filter

analysis which indicates that secondary

2 See the State's 179B(d) demonstration (Chapter

IILB. Modeling Emissions Inventory) for more

detailed information on the how the State's

modeling inventory was developed.

3See the State's 179B(d) demonstration (Chapter

IILD. Background Concentrations) for more

information.

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particulates are measured in the range of

2 to 4 gg/m 3 for secondary ammonium

sulfates and 2 to 3 gLg/m 3 for secondary

ammonium nitrates (Transport Study,

Summary and Conclusion, page 9-5)

and are thus a small portion of the

particulate matter in Imperial County.

5. Proof That Mexico Emissions Impact

U.S. Monitors and Adequacy of

Alternative Demonstration

The Sierra Club asserts that the state

has failed to demonstrate that PM-10

violations in Imperial County are

actually being caused by emissions from

Mexico and that, even if air quality

modeling was not required, the state's

"alternative" 179B(d) demonstration

(i.e., based on analysis of wind patterns

and population densities) is grossly

inadequate. The Sierra Club believes

that the State's analysis of wind patterns

and population densities does not show

that any quantifiable amount of

particulates traveled to the U.S.

monitors, let alone any amount that

would contribute to nonattainment and

that there is nothing in the record

relating to an actual amount of PM-10

emissions traveling from Mexico to

Imperial County. Also, the Sierra Club

states that the Imperial Valley/Mexicali

Cross Border PM-10 Transport Study

(Transport Study), which indicates that

international transport is not always the

cause of PM-10 violations, were not

refuted and are more reliable than the

more recent analysis by the state which

the Sierra Club claims to be speculative.

Finally, the Sierra Club asserts that

there is no analysis of the PM-10

transport to Imperial County's border

from places other than Mexico (i.e., on

the U.S. side).

EPA's response: The State's 179B(d)

demonstration, which includes a

detailed analysis of spatial plots, wind

roses and back trajectories for each of

the PM-10 exceedance days during

1992-1994, provides the best qualitative

analysis of the emissions from Mexico

possible for the Imperial County area for

the period in question. Filter analyses

often can provide more specificity on

where the monitoring emissions are

coming from but, since the types of PM10 sources are similar on both sides of

the border, analysis of the Imperial

County samples would not show what

portion of the catch originated on the

Mexican side of the border. 4

4 As discussed in the proposed rule, the 1992-

1993 Imperial Valley/Mexicali Cross Border PM-10

Transport Study (Final Report, January 30, 1997)

includes an analysis of the particles collected in

areas within Imperial County where violations have

been recorded. This sample analysis determined

that geological dust (70-90%), motor vehicle

exhaust (10-15%) and vegetative burning (10%)

The Sierra Club suggests that the

analyses found in the State's 179B(d)

demonstration prove nothing about

whether or not emissions from Mexico

are impacting U.S. monitors. EPA

believes that given the available

information, the State has made a good

argument that Imperial County is being

impacted by Mexico emissions.

Additional activities (tracer studies, air

monitoring studies, establishment of

more meteorology stations at border)

could have been conducted, but it is not

now possible to create information from

new studies for the 1992-1994

timeframe. Thus, EPA believes that the

State's 179B(d) analysis of spatial plots,

wind roses and back trajectories

provides the best determination of PM10 emissions transport from Mexico.

EPA does not have to refute the

Transport Study results in order to make

this finding of attainment but for

international transport. As discussed in

the proposed rule, the additional

windfield analyses (Attachment 2 to

EPA's TSD, Additional windroses and

windfields for January 25, 1993)

provided a more detailed analysis,

supplementing information from the

Transport Study. 5 The Transport Study

is simply an effort to collect air quality

data on exceedance days and analyze

the data based on wind direction and

speed, and the study is thus very similar

to the analyses found in the State's

demonstration. The Transport Study

indicates that several of the exceedance

days appear to have stagnant wind

conditions (1/19/93, 1/25/93, 7/7/94,

10/17/94 and 12/16/94), but the State's

demonstration uses more meteorological

data and finds evidence that transport

from Mexico is likely even with the

stagnant conditions at the surface. For

each of the exceedances, the State's

analysis took into account additional

information not included in the

Transport Study. This information

included: (a) The number of hours with

southerly wind directions that have the

potential to carry emissions from

Mexico into Imperial County; (b) the

back trajectories and back trajectories

based on upper-air synoptic wind data,

which show the existence of much

higher winds from the south that are decoupled from the surface stagnant

conditions, and (c) the windroses

developed for all meteorological

stations, suggesting that emissions from

account for the highest contribution to PM-10

concentrations. These are the predominant

emissions sources on both sides of the border. Thus,

the filter analysis by itself could not be used to

determine the extent to which violations might

result from international transport.

5 See Attachment 2 to EPA's TSD, Additional

windroses and windfields for January 25, 1993.

Mexico likely contributed to the

concentrations measured at Brawley.

Based on this additional information

and the further analyses, the State

concluded that Imperial County would

not have violated the PM-10 NAAQS

but for transport from Mexico. In

weighing the "but-for" evidence, EPA

also considered it important to consider

the relatively low level of the 24-hour

exceedances (162 gg/m 3), 175 gg/m 3,

165 gg/m 3, 159 gg/m 3, and 153 gg/m3).

EPA concedes that information is not

available to determine with confidence

the exact quantity of PM-10 coming

from Mexico, but EPA continues to

believe that the State has diligently

collected and analyzed available

evidence and has successfully

demonstrated for each of the exceedance

days the probability that Imperial

County would not have violated the

NAAQS but for the emissions emanating

from Mexico.

Finally, EPA believes that there were

insufficient data to support a modeling

assessment of the potential for long

range transport from the South coast or

other California areas to Mexico and

back again to Imperial. The Sierra Club

presents no evidence that there is

transport from U.S. sources outside of

Imperial County. Even if evidence

existed that the Imperial County

monitors were being impacted by long

range transport from within the U.S.,

such evidence would not invalidate the

State's demonstration that Imperial

County would have attained the

NAAQS but for emissions emanating

from Mexico.

6. Emissions Inventories

The Sierra Club asserts that the

comparison of emissions inventories

between Imperial and Mexicali is

inadequate due to the uncertainty in the

Mexicali inventory, that the Mexicali

inventory has not been analyzed for

transportability of particles and that the

emissions inventory for Imperial County

has never been approved by EPA, and

thus cannot be used to support a "butfor" finding.

EPA's response: The comparison of

Imperial and Mexicali emissions was

intended to provide support for the

attainment finding. EPA agrees that

there is uncertainty in the Mexicali

inventory, however, EPA also believes it

is useful to examine all available data

for this attainment finding. Even if the

Mexicali emissions were one-half of

257, as suggested by the Sierra Club, the

emissions in the city of Mexicali (200

square miles) would be about half of the

emissions in all of Imperial County

(4060 square miles), but the emissions

density in Mexicali would still be much

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greater than in Imperial County. As far

as determining the transportability of

emissions from Mexicali, as discussed

above and in the proposed rule, filter

analyses have been examined for the

border area and provided some

information on the particles

characteristics. Finally, as discussed

above, the emission inventories used in

the State's 179B(d) demonstration are

the most current and best available. EPA

plans to take action on the inventories

when they are submitted as part of the

State Implementation Plan (SIP) for

Imperial County.

7. Post-1994 Exceedances

The Sierra Club asserts that the

179B(d) determination is inadequate

because it fails to consider the post-1994

exceedances. The Sierra Club states that

the post-1994 exceedances are

numerous, in some cases extreme, and

relevant to the attainment but for

international transport determination.

EPA's response: EPA believes that the

post-1994 exceedances are irrelevant to

the determinations at issue. The

statutory attainment date for the

Imperial County PM-10 moderate

nonattainment area is December 31,

1994. EPA believes the State's 179B(d)

demonstration adequately demonstrates

attainment by examining the air quality

data from 1992-1994. If this

demonstration is adequate,

reclassification to serious is not

required. Section 188(b)(2) provides

that: "Within 6 months following the

applicable attainment date for a PM-10

nonattainment area, the Administrator

shall determine whether the area

attained the standard by that date. If the

Administrator finds that any Moderate

Area is not in attainment after the

applicable attainment date * * *" the

area shall be reclassified. While the

second sentence of section 188(b)(2)

contains the language quoted by the

commentor "is not in attainment after

the applicable attainment date," it is

clear that in the context of the first

sentence of the provision, which is the

sentence that establishes the duty to

make an attainment determination, the

duty is to "determine whether the area

attained the standard by that date

[referring to the phrase "applicable

attainment date" in the opening clause

of the sentence]." Thus, EPA's duty is

to determine whether the area attained

by its attainment date and the language

in the second sentence regarding a

finding after the attainment date may

reasonably be interpreted as referring to

the date the finding is made, which

would necessarily be after the

attainment date, not to the date used in

the determination as the benchmark for

determining attainment. The question of

whether an area should be reclassified

is considered along with whether an

area has achieved attainment by the

attainment date. Thus, the air quality

data from the years 1992-1994 are the

relevant data for determining whether

Imperial County should be reclassified

to serious.

8. SIP Requirements

Finally, the Sierra Club asserts that a

179B(d) waiver cannot be granted unless

all moderate area SIP requirements (e.g.,

RACM, RACT, New Source Review, etc.)

are being met.

EPA's response: As discussed in the

EPA's proposal, this rulemaking does

not address the SIP requirements for

Imperial County but only the question

of whether or not the State has

established that Imperial County

attained the NAAQS by December 31,

1994, but for international transport.

CAA section 179B(d) states that "any

State that establishes to the satisfaction

of the Administrator * * * that such

State has attained the national ambient

air quality standard for [PM-10] by the

applicable attainment date, but for

emissions emanating from outside of the

United States, shall not be submit to the

provisions of section 7512(b)(2) * * "

which requires reclassification upon

failure to attain. This provision does not

require a SIP submittal in order for the

waiver to be granted. EPA is currently

working with the Imperial County Air

Pollution Control District and the

California Air Resources Board on

developing an approvable State

Implementation Plan for Imperial

County. A draft of this plan was issued

for public review in July 2001.

B. Other Comments Supporting EPA's

Final Action

Besides the Sierra Club, all of the

commentors support EPA's finding of

attainment but for international

transport and are extremely opposed to

the finding of nonattainment and

reclassification to a serious PM-10

nonattainment area. Commentors

discussed the overwhelming pollution

problem coming from Mexico, the

measures their industries have taken to

reduce pollution and that it would be

unfair to impose additional controls on

sources in Imperial County. The

Imperial County Air Pollution Control

District also provided additional

technical analysis supporting the

methods used in the State's 179B(d)

demonstration.

III. Summary of Final Action

EPA's proposed rule (66 FR 42187)

discusses how the State's 179B(d)

demonstration is based on a

competently collected and examined set

of the relevant available information,

and reaches a reasoned conclusion that

each of the 1992-94 exceedances, which

are only slightly above the NAAQS,

would likely not have occurred without

pollutant transport from Mexico.

In summary, EPA continues to believe

that CAA section 179B(d) does not

mandate a modeling demonstration, and

that the State has provided evidence

sufficient to show that, but for

international transport of PM-10,

Imperial County would have attained

the annual and 24-hour PM-10 NAAQS

by the December 31, 1994 deadline.

IV. Administrative Requirements

A. Executive Order 12866

Under E.O. 12866, 58 FR 51735

(October 4, 1993), EPA is required to

determine whether regulatory actions

are significant and therefore should be

subject to OMB review, economic

analysis, and the requirements of the

Executive Order. The Executive Order

defines a "significant regulatory action"

as one that is likely to result in a rule

that may meet at least one of the four

criteria identified in section 3(f),

including, (1) have an annual effect on

the economy of $100 million or more or

adversely affect, in a material way, the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities; (2) create a serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency; (3) materially alter the

budgetary impact of entitlements,

grants, user fees, or loan programs or the

rights and obligations of recipients

therof; or (4) raise novel legal or policy

issues arising out of legal mandates, the

President's priorities, or the principles

set forth in the Executive Order.

EPA has determined that the final

finding of attainment pursuant to CAA

section 179B(d) would result in none of

the effects identified in section 3(f). A

finding of attainment under section

179B(d) of the CAA does not impose

any additional requirements on an area.

This actions does not, in-and-of-itself,

impose any new requirements on any

sectors of the economy.

B. Executive Order 13211

The final finding of attainment under

CAA 179B(d) is not subject to Executive

Order 13211, "Actions Concerning

Regulations That Significantly Affect

Energy Supply, Distribution, or Use" (66

Fed. Reg. 28355 (May 22, 2001)) because

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it is not a significant regulatory actions

under Executive Order 12866.

C. Executive Order 13045

Executive Order 13045, entitled

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

applies to any rule that: (1) Is

determined to be "economically

significant" as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

The final finding of attainment under

CAA 179B(d) is not subject to Executive

Order 13045 because it does not involve

decisions intended to mitigate

environmental health or safety risks.

D. Executive Order 13132

Executive Order 13132, "Federalism,"

(64 FR 43255, August 10, 1999) revokes

and replaces Executive Orders 12612,

"Federalism," and 12875, "Enhancing

the Intergovernmental Partnership."

Executive Order 13132 requires EPA to

develop an accountable process to

ensure "meaningful and timely input by

State and local officials in the

development of regulatory policies that

have federalism implications." "Policies

that have federalism implications" is

defined in the Executive Order to

include regulations that 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." Under Executive

Order 13132, EPA may not issue a

regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

The final finding of attainment will

not have substantial direct effects on

California, on the relationship between

the national government and California,

or on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. As stated above,

a finding of attainment under section

179B(d) of the CAA does not impose

any additional requirements on an area.

This action does not, in-and-of-itself,

impose any new requirements on any

sectors of the economy. Thus, the

requirements of section 6 of the

Executive Order do not apply to this

final action.

E. Executive Order 13175

Executive Order 13175, entitled

"Consultation and Coordination with

Indian Tribal Governments" (65 FR

67249, November 6, 2000), requires EPA

to develop an accountable process to

ensure "meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications." "Policies that have tribal

implications" is defined in the

Executive Order to include regulations

that have "substantial direct effects on

one or more Indian tribes, on the

relationship between the Federal

government and the Indian tribes, or on

the distribution of power and

responsibilities between the Federal

government and Indian tribes."

The final finding of attainment under

CAA 179B(d) does not have tribal

implications. For the reasons discussed

above, the final action will not have

substantial direct effects on tribal

governments, 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 in Executive Order 13175.

Thus, Executive Order 13175 does not

apply to this rule.

F. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

As discussed above, the final finding

of attainment under CAA 179B(d) does

not impose additional requirements on

small entities. Therefore, I certify that

this final action will not have a

significant economic impact on a

substantial number of small entities.

G. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

("Unfunded Mandates Act"), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

With respect to EPA's final finding of

attainment under CAA 179B(d), EPA

notes that this actions in-and-of itself

establishes no new requirements.

Furthermore, EPA is not directly

establishing any regulatory

requirements that may significantly

impact or uniquely affect small

governments, including tribal

governments. Thus, EPA is not obligated

to develop under section 203 of UMRA

a small government agency plan.

H. National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use "voluntary

consensus standards" (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

EPA believes that VCS are

inapplicable to today's final action

because they do not require the public

to perform activities conducive to the

use of VCS.

L 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

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report containing this rule 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 rule is not a "major" rule as

defined by 5 U.S.C. 804(2).

J. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by December 18,

2001. Filing a petition for

reconsideration by the Administrator of

this final rule does not affect the finality

of this rule for the purposes of judicial

review nor does it extend the time

within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Authority: 42 U.S.C. 7401-7671q.

Dated: October 9, 2001.

Sally Seymour,

Acting Regional Administrator, Region IX.

[FR Doc. 01-26406 Filed 10-18-01; 8:45 am]

BILLING CODE 6560-50-P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 65

[Docket No. FEMA-D-7515]

Changes in Flood Elevation

Determinations

AGENCY: Federal Emergency

Management Agency, FEMA.

ACTION: Interim rule.

SUMMARY: This interim rule lists

communities where modification of the

base (1% annual chance) flood

elevations is appropriate because of new

scientific or technical data. New flood

insurance premium rates will be

calculated from the modified base flood

elevations for new buildings and their

contents.

DATES: These modified base flood

elevations are currently in effect on the

dates listed in the table and revise the

Flood Insurance Rate Map(s) (FIRMs) in

effect prior to this determination for

each listed community.

From the date of the second

publication of these changes in a

newspaper of local circulation, any

person has ninety (90) days in which to

request through the community that the

Acting Administrator for Federal

Insurance and Mitigation

Administration reconsider the changes.

The modified elevations may be

changed during the 90-day period.

ADDRESSES: The modified base flood

elevations for each community are

available for inspection at the office of

the Chief Executive Officer of each

community. The respective addresses

are listed in the following table.

FOR FURTHER INFORMATION CONTACT:

Matthew B. Miller, P.E., Chief, Hazards

Study Branch, Federal Insurance and

Mitigation Administration, Federal

Emergency Management Agency, 500 C

Street SW., Washington, DC 20472,

(202) 646-3461, or (email)

matt.miller@fema.gov.

SUPPLEMENTARY INFORMATION: The

modified base flood elevations are not

listed for each community in this

interim rule. However, the address of

the Chief Executive Officer of the

community where the modified base

flood elevation determinations are

available for inspection is provided.

Any request for reconsideration must

be based upon knowledge of changed

conditions, or upon new scientific or

technical data.

The modifications are made pursuant

to Section 201 of the Flood Disaster

Protection Act of 1973, 42 U.S.C. 4105,

and are in accordance with the National

Flood Insurance Act of 1968, 42 U.S.C.

4001 et seq., and with 44 CFR Part 65.

For rating purposes, the currently

effective community number is shown

and must be used for all new policies

and renewals.

The modified base flood elevations

are the basis for the floodplain

management measures that the

community is required to either adopt

or to show evidence of being already in

effect in order to qualify or to remain

qualified for participation in the

National Flood Insurance Program

(NFIP).

These modified elevations, together

with the floodplain management criteria

required by 44 CFR 60.3, are the

minimum that are required. They

should not be construed to mean that

the community must change any

existing ordinances that are more

stringent in their floodplain

management requirements. The

community may at any time enact

stricter requirements of its own, or

pursuant to policies established by other

Federal, state or regional entities.

The changes in base flood elevations

are in accordance with 44 CFR 65.4.

National Environmental Policy Act

This rule is categorically excluded

from the requirements of 44 CFR Part

10, Environmental Consideration. No

environmental impact assessment has

been prepared.

Regulatory Flexibility Act

The Acting Administrator for Federal

Insurance and Mitigation

Administration, certifies that this rule is

exempt from the requirements of the

Regulatory Flexibility Act because

modified base flood elevations are

required by the Flood Disaster

Protection Act of 1973, 42 U.S.C. 4105,

and are required to maintain community

eligibility in the National Flood

Insurance Program. No regulatory

flexibility analysis has been prepared.

Regulatory Classification

This interim rule is not a significant

regulatory action under the criteria of

Section 3(f) of Executive Order 12866 of

September 30, 1993, Regulatory

Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism

This rule involves no policies that

have federalism implications under

Executive Order 12612, Federalism,

dated October 26, 1987.

Executive Order 12778, Civil Justice

Reform

This rule meets the applicable

standards of Section 2(b)(2) of Executive

Order 12778.

List of Subjects in 44 CFR Part 65

Flood insurance, Floodplains,

Reporting and recordkeeping

requirements.

Accordingly, 44 CFR Part 65 is

amended to read as follows:

PART 65-[AMENDED]

1. The authority citation for Part 65

continues to read as follows:

Authority: 42 U.S.C. 4001 et seq.;

Reorganization Plan No. 3 of 1978, 3 CFR,

1978 Comp., p. 329; E.O. 12127, 44 FR 19367,

3 CFR, 1979 Comp., p. 376.

§ 65.4 [Amended]

2. The tables published under the

authority of § 65.4 are amended as

follows:

53112

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State and county Location D and name of news- Chief executive officer Effective date of Community

paper where notice was of community modification number

published

Florida: Duval ......

Georgia: Gwinnett

Kentucky: Whitley

Maine: York .........

Mississippi: Madison.

North Carolina:

W ake ............

D are .............

W ake ............

City of Jacksonville.

Unincorporated

Areas.

City of Williamsburg.

Town of Alfred ...

City of Ridgeland

Town of Cary .....

Unincorporated

Areas.

Town of Garner

Gaston ......... City of Gastonia

Ohio: Warren ...... City of Mason ....

South Carolina:

Lexington .....

Lexington .....

Tennessee: Sullivan.

Virginia: Rockingham.

City of Columbia

Unincorporated

Areas.

Town of Kingsport.

Unincorporated

Areas.

August 8, 2001; August

15, 2001; Financial

News and Daily Record.

August 23, 2001; August

30, 2001; Gwinnett

Daily Post.

August 17, 2001; August

24, 2001; Times Tribune.

September 27, 2001; October 4, 2001; The Sanford News.

May 17, 2001; May 24,

2001; Madison County

Journal.

August 2, 2001; August 9,

2001; The Cary News.

August 23, 2001; August

30, 2001; Coastland

Times.

July 18, 2001; July 25,

2001; The News and

Observer.

August 29, 2001; September 5, 2001; The

Gaston Gazette.

July 18, 2001; July 25,

2001; The News and

Observer.

July 18, 2001; July 25,

2001; The News and

Observer.

September 5, 2001; September 12, 2001; PulseJournal.

August 20, 2001; August

27, 2001; The State.

August 20, 2001; August

27, 2001; The State.

August 23, 2001; August

30, 2001; Kingsport

Times.

September 21, 2001;

Daily News Record.

The Honorable John A. Delaney,

Mayor of the City of Jacksonville, 117 West Duval Street,

Suite 400, Jacksonville, Florida

32202.

Mr. Wayne Hill, Chairman of the

Gwinnett County Board of Commissioners, Justice and Administration Center, 75 Langley Drive,

Lawrenceville, Georgia 30045.

The Honorable Bill Nighbert,

Mayor of the City of Williamsburg, P.O. Box 119, Williamsburg, Kentucky 40769.

Mr. Perley Yeaton, Chairperson of

the Board of Selectmen for the

Town of Alfred, P.O. Box 667,

Alfred, Maine 04001.

The Honorable Gene F. McGee,

Mayor of the City of Ridgeland,

P.O. Box 217, Ridgeland, Mississippi 39158.

The Honorable Glenn D. Lang,

Mayor of the Town of Cary, 318

North Academy Street, P.O. Box

8005, Cary, North Carolina

27512.

Mr. Moncie L. Daniels, Chairman

of the Board of Commissioners,

P.O. Box 1000, Manteo, North

Carolina 27954.

Ms. Mary Lou Rand, Town Manager, P.O. Box 446, 900 Seventh Avenue, Garner, North

Carolina 27529.

Mayor of the City of Gastonia,

P.O. Box 1748, 181 South

Street, Gastonia, North Carolina

28053-1748.

The Honorable Paul Y. Coble,

Mayor of the City of Raleigh,

P.O. Box 590, 222 West Hargett

Street, Raleigh, North Carolina

27602.

Mr. David Cooke, Wake County

Manager, Suite 1100, 337 South

Salisbury Street, Raleigh, North

Carolina 27602.

The Honorable John McCurley,

Mayor of the City of Mason, 202

West Main Street, Mason, Ohio

45040.

The Honorable Robert D. Cole,

Mayor of the City of Columbia,

P.O. Box 147, Columbia, South

Carolina 29201.

Mr. Bruce Rucker, Lexington

County Council Chairman, 212

South Lake Drive, Lexington,

South Carolina 29072.

The Honorable Jeanette Blazier,

Mayor of the City of Kingsport,

225 West Center Street, City

Hall, Kingsport, Tennessee

37660-4237.

Mr. Pablo Cuevas, Chairman of

the Board of Supervisors, Rockingham County P.O. Box 1252

Harrisonburg, Virginia 22801.

August 1, 2001 ..........

November 29, 2001 ...

August 10, 2001 ........

120077D&E

130322D

210228D

September 19, 2001 .. 230191C

May 10, 2001 ............ 280110 D

July 26, 2001 ............. 370238D

August 16, 2001 ........

July 11, 2001 .............

375348E

370240 D

December 5, 2001 ..... I 370100D

July 11, 2001 .............

July 11, 2001 .............

370243 D

370368 D

August 30, 2001 ........ 390559C

August 13, 2001 ........

August 13, 2001 ........

450172D

450129D

August 16, 2001 ........ 470184D

October 12, 2001 ......510133B

W ake ............

W ake ............

City of Raleigh ...

Unincorporated

Areas.

53113

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Federal Register/Vol. 66, No. 203/Friday, October 19, 2001/Rules and Regulations

(Catalog of Federal Domestic Assistance

No. 83.100, "Flood Insurance")

Dated: October 9, 2001.

Robert F. Shea,

Acting Administrator, Federal Insurance and

Mitigation Administration.

[FR Doc. 01-26424 Filed 10-18-01; 8:45 am]

BILLING CODE 6718-04-P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 65

Changes in Flood Elevation

Determinations

AGENCY: Federal Emergency

Management Agency, (FEMA).

ACTION: Final rule.

SUMMARY: Modified Base (1-percentannual-chance) Flood Elevations (BFEs)

are finalized for the communities listed

below. These modified elevations will

be used to calculate flood insurance

premium rates for new buildings and

their contents.

EFFECTIVE DATES: The effective dates for

these modified BFEs are indicated on

the table below and revise the Flood

Insurance Rate Maps ((FIRMs) in effect

for the listed communities prior to this

date.

ADDRESSES: The modified BFEs for each

community are available for inspection

at the office of the Chief Executive

Officer of each community. The

respective addresses are listed in the

table below.

FOR FURTHER INFORMATION CONTACT:

Matthew B. Miller, P.E., Chief, Hazards

Study Branch, Hazard Mapping and

Risk Assessment Division, FEMA, 500 C

Street, SW., Washington, DC 20472,

(202) 646-3461 or (e-mail)

matt.miller@fema.gov.

SUPPLEMENTARY INFORMATION: FEMA

makes the final determinations listed

below of the final determinations of

modified BFEs for each community

listed. These modified elevations have

been published in newspapers of local

circulation and ninety (90) days have

elapsed since that publication. The

Acting Administrator, Federal Insurance

and Mitigation Administration, has

resolved any appeals resulting from this

notification.

The modified BFEs are not listed for

each community in this notice.

However, this rule includes the address

of the Chief Executive Officer of the

community where the modified BFE

determinations are available for

inspection.

The modifications are made pursuant

to Section 206 of the Flood Disaster

Protection Act of 1973, 42 U.S.C. 4105,

and are in accordance with the National

Flood Insurance Act of 1968, 42 U.S.C.

4001 et seq., and with 44 CFR Part 65.

For rating purposes, the currently

effective community number is shown

and must be used for all new policies

and renewals.

The modified BFEs are the basis for

the floodplain management measures

that the community is required to either

adopt or to show evidence of being

already in effect in order to qualify or

to remain qualified for participation in

the National Flood Insurance Program

(NFIP).

These modified BFEs, together with

the floodplain management criteria

required by 44 CFR 60.3, are the

minimum that are required. They

should not be construed to mean that

the community must change any

existing ordinances that are more

stringent in their floodplain

management requirements. The

community may at any time enact

stricter requirements of its own, or

pursuant to policies established by other

Federal, State, or regional entities.

These modified BFEs are used to meet

the floodplain management

requirements of the NFIP and are also

used to calculate the appropriate flood

insurance premium rates for new

buildings built after these elevations are

made final, and for the contents in these

buildings.

The changes in BFEs are in

accordance with 44 CFR 65.4.

National Environmental Policy Act

This rule is categorically excluded

from the requirements of 44 CFR Part

10, Environmental Consideration. No

environmental impact assessment has

been prepared.

Regulatory Flexibility Act

The Acting Administrator, Federal

Insurance and Mitigation

Administration, certifies that this rule is

exempt from the requirements of the

Regulatory Flexibility Act because

modified base flood elevations are

required by the Flood Disaster

Protection Act of 1973, 42 U.S.C. 4105,

and are required to maintain community

eligibility in the NFIP. No regulatory

flexibility analysis has been prepared.

Regulatory Classification

This final rule is not a significant

regulatory action under the criteria of

Section 3(f) of Executive Order 12866 of

September 30, 1993, Regulatory

Planning and Review, 58 FR 51735.

Executive Order 12612 Federalism

This rule involves no policies that

have federalism implications under

Executive Order 12612, Federalism,

dated October 26, 1987.

Executive Order 12778, Civil Justice

Reform

This rule meets the applicable

standards of Section 2(b)(2) of Executive

Order 12778.

List of Subjects in 44 CFR Part 65

Flood insurance, Floodplains,

Reporting and recordkeeping

requirements.

Accordingly, 44 CFR Part 65 is

amended to read as follows:

PART 65-[AMENDED]

1. The authority citation for Part 65

continues to read as follows:

Authority: 42 U.S.C. 4001 et seq.;

Reorganization Plan No. 3 of 1978, 3 CFR,

1978 Comp., p. 329; E.O. 12127, 44 FR 19367,

3 CFR, 1979 Comp., p. 376.

§ 65.4 [Amended]

2. The tables published under the

authority of § 65.4 are amended as

follows:

Dates and names of Chief executive officer Effective date of Community

State and county Location newspaper where notice of community modification number

was published

Arkansas: Washington (FEMA

Docket No.

7602).

Oklahoma: (FEMA

Docket No.

7602).

City of Springdale

City of Edmond ....

April 20, 2001, April 27,

2001, The Morning

News of Northwest Arkansas.

May 17, 2001, May 24,

2001, The Edmond Sun.

The Honorable Jerre Van Hoose,

Mayor, City of Springdale, 201

Spring Street, Springdale, Arkansas

72764.

The Honorable Bob Rudkin, Mayor,

City of Edmond, P. 0. Box 202,

Edmond, Oklahoma 73083.

July 27, 2001 ....... 050219

August 23, 2001 .. 400252

53114

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