IV. Why Is EPA Taking These Actions?

On June 12, 2007, the PADEP requested redesignation of the Scranton/WilkesBarre Area to attainment for the 8hour ozone standard. On June 12, 2007, PADEP submitted a maintenance plan for the Scranton/ WilkesBarre Area as a SIP revision, to ensure continued attainment of the 8hour ozone NAAQS over the next 11 years, until 2018. PADEP also submitted a 2002 baseyear inventory concurrently with its maintenance plan as a SIP revision. EPA has determined that the Scranton/Wilkes Barre Area has attained the 8hour ozone standard and has met the requirements for redesignation set forth in section 107(d)(3)(E). V. What Would Be the Effect of These Actions?

Approval of the redesignation request would change the official designation of the Scranton/WilkesBarre Area from nonattainment to attainment for the 8hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Pennsylvania SIP a 2002 baseyear inventory and a maintenance plan ensuring continued attainment of the 8hour ozone NAAQS in the Scranton/WilkesBarre Area for the next 11 years, until 2018. The maintenance plan includes contingency measures to remedy any future violations of the 8hour NAAQS (should they occur), and identifies the NOX and VOC MVEBs for transportation conformity purposes for the years 2009 and 2018. These MVEBs are displayed in the following table:
Table 1.Scranton/WilkesBarre Motor Vehicle Emissions Budgets, in Tons per Summer Day (tpsd)
Year VOC NOX 2009............................................. 25.2 48.3 2018.............................................. 16.9 23.7 VI. What Is EPA's Analysis of the Commonwealth's Request?

EPA is proposing to determine that the Scranton/WilkesBarre Area has attained the 8hour ozone standard, and that all other
redesignation criteria have been met. The following is a description of how the PADEP's June 12, 2007 submittal satisfies the requirements of section 107(d)(3)(E) of the Clean Air Act.
A. The Scranton/WilkesBarre Area Has Attained the 8Hour NAAQS

EPA is proposing to determine that the Scranton/WilkesBarre Area has attained the 8hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and Appendix I of Part 50, based on three complete, consecutive calendar years of qualityassured air quality monitoring data. To attain this standard, the design value, which is the 3year average of the fourthhighest daily maximum 8hour average ozone concentrations measured at each monitor, within the area, over each year must not exceed the ozone standard of 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and qualityassured in accordance with 40 CFR part 58, and recorded in the Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

In the ScrantonWilkesBarre Area, there were four ozone monitors that measured ambient ozone air quality between 2004 and 2006. Two of these monitors are located in Lackawanna County and two are in Luzerne County. As part of its redesignation request, Pennsylvania referenced ozone monitoring data for the years 20042006 for the Scranton/Wilkes Barre Area. This data has been quality assured and is recorded in the AQS. The PADEP uses the AQS as the permanent database to maintain its data and quality assures the data transfers and content for accuracy. The fourthhigh 8hour daily maximum concentrations for the period from 20042006, along with the threeyear average, are summarized in Table 2.
Table 2.Scranton/WilkesBarre Area Fourth Highest 8Hour Average Values (20042006) Annual 4th highest reading (ppm) Monitor/County/AIRS ID 2004 2005 2006 Wilson Fire Company Monitor, Lackawanna County, AQS ID 42069 0.071 0.080 0.071 0101........................................................... City of Scranton Monitor, Luzerne County AQS ID 420692006..... 0.073 0.080 0.070 Nanticoke Monitor, Luzerne County AQS ID 420791100............ 0.068 0.074 0.064 WilkesBarre Monitor, Luzerne County AQS ID 420791101......... 0.073 0.081 0.073 The Area design value for the 3year period 20042006 is 0.075 ppm (based on WilkesBarre Monitor/AQS ID 42079 1101)

The air quality data for 20042006 show that the Scranton/Wilkes Barre Area has attained the standard with a design value of 0.075 ppm. The data collected at the Scranton/WilkesBarre Area monitors satisfies the Clean Air Act requirement that the 3year average of the annual fourthhighest daily maximum 8hour average ozone concentration is less than or equal to 0.08 ppm. The PADEP's request for redesignation for the Scranton/WilkesBarre Area indicates that the data is complete and was quality assured in accordance with 40 CFR part 58. In addition, as discussed below with respect to the maintenance plan, PADEP has committed to continue monitoring in accordance with 40 CFR part 58. In summary, EPA has determined that the data submitted by Pennsylvania and data taken from AQS indicate that the Area has attained the 8hour ozone NAAQS.
B. The Scranton/WilkesBarre Area Has Met All Applicable Requirements Under Section 110 and Part D of the Clean Air Act and Has a Fully Approved SIP Under Section 110(k) of the Clean Air Act

EPA has determined that the Scranton/WilkesBarre Area has met all [[Page 54394]]
SIP requirements applicable for purposes of this redesignation under section 110 of the Clean Air Act (General SIP Requirements) and that it meets all applicable SIP requirements under Part D of Title I of the Clean Air Act, in accordance with section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained which requirements are applicable to the Scranton/ WilkesBarre Area and determined that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the Clean Air Act. We note that SIPs must be fully approved only with respect to applicable requirements.

The September 4, 1992 Calcagni memorandum (``Procedures for Processing Requests to Redesignate Areas to Attainment,'' Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) with respect to the timing of applicable requirements. Under this interpretation, to qualify for redesignation, States requesting redesignation to attainment must meet only the relevant Clean Air Act requirements that came due prior to the submittal of a complete redesignation request. See also, Michael Shapiro memorandum, September 17, 1993, and 60 FR 12459, 1246566 (March 7, 1995) (redesignation of DetroitAnn Arbor). Applicable requirements of the Clean Air Act that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. Section 175A(c) of the Clean Air Act. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also, 68 FR at 25424, 25427 (May 12, 2003) (redesignation of St. Louis).

This section sets forth EPA's views on the potential effect of the Court's rulings on this proposed redesignation action. For the reasons set forth below, EPA does not believe that the Court's rulings alters any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from proposing or ultimately finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the Clean Air Act and longstanding policies regarding redesignation requests.

1. Section 110 General SIP Requirements

Section 110(a)(2) of Title I of the Clean Air Act delineates the general requirements for a SIP, which includes enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to the following:

Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain states to establish programs to address transport of air pollutants in accordance with the NOx SIP Call, October 27, 1998 (63 FR 57356), amendments to the NOx SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the section 110(a)(2)(D) requirements for a State are not linked with a particular nonattainment area's designation and classification in that State. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the State. Thus, we do not believe that these requirements are applicable requirements for purposes of redesignation.

In addition, EPA believes that the other section 110 elements not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The Scranton/WilkesBarre Area will still be subject to these requirements after it is redesignated. The section 110 and Part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This policy is consistent with EPA's existing policy on applicability of conformity (i.e., for
redesignations) and oxygenated fuels requirement. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 1997); ClevelandAkronLorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also, the discussion on this issue in the Cincinnati redesignation (65 FR at 37890, June 19, 2000), and in the Pittsburgh redesignation (66 FR at 53099, October 19, 2001). Similarly, with respect to the NOx SIP Call rules, EPA noted in its Phase 1 Final Rule to Implement the 8hour Ozone NAAQS, that the NOx SIP Call rules are not ``an'' `applicable requirement' for purposes of section 110(1) because the NOx rules apply regardless of an area's attainment or nonattainment status for the 8hour (or the 1hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).

EPA believes that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. As we explain later in this notice, no Part D requirements applicable for purposes of redesignation under the 8hour standard became due for the Scranton/WilkesBarre Area prior to submission of the redesignation request
2. Part D Nonattainment Requirements Under the 8Hour Standard

Pursuant to an April 30, 2004, final rule (69 FR 23951), the Scranton/WilkesBarre Area was designated a basic nonattainment area under subpart 1 for the 8hour ozone standard. Sections 172176 of the Clean Air Act, found in subpart 1 of Part D, set forth the basic nonattainment requirements applicable to all nonattainment areas. Section 182 of the Clean Air Act, found in subpart 2 of Part D, establishes additional specific requirements depending on the area's nonattainment classification.

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With respect to the 8hour standard, the court's ruling rejected EPA's reasons for classifying areas under subpart 1 for the 8hour standard, and remanded that matter to the Agency.

Consequently, it is possible that this area could, during a remand to EPA, be reclassified under subpart 2. Although any future decision by EPA to classify this area under subpart 2 might trigger additional future requirements for the area, EPA believes that this does not mean that redesignation of the area cannot now go forward. This belief is based upon (1) EPA's longstanding policy of evaluating redesignation requests in accordance with the requirements due at the time the request is submitted; and, (2) consideration of the inequity of applying retroactively any requirements that might in the future be applied.

First, at the time the redesignation request was submitted, the Scranton/WilkesBarre Area was classified under subpart 1 and was obligated to meet only subpart 1 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the Clean Air Act, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. See September 4, 1992 Calcagni memorandum (``Procedures for Processing Requests to Redesignate Areas to Attainment,'' Memorandum from John Calcagni, Director, Air Quality Management Division). See also, Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 1246566 (March 7, 1995) (Redesignation of DetroitAnn Arbor). Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004), which upheld this interpretation. See 68 FR 25418, 25424, 25427 (May 12, 2003) (Redesignation of St. Louis).

Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The D.C. Circuit has recognized the inequity in such retroactive rulemaking, Sierra Club v. Whitman, 285 F. 3d 63 (D.C. Cir. 2002), in which the D.C. Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: ``Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.'' Id. at 68. Similarly here it would be unfair to penalize the area by applying to it for purposes of redesignation additional SIP requirements under subpart 2 that were not in effect at the time it submitted its redesignation request.

With respect to 8hour subpart 2 requirements, if the Scranton/ WilkesBarre Area initially had been classified under subpart 2, the first two Part D subpart 2 requirements applicable to the Area under section 182(a) of the Clean Air Act would be: A baseyear inventory requirement pursuant to section 182(a)(1) of the Clean Air Act, and, the emissions statement requirement pursuant to section 182(a)(3)(B).

As stated previously, these requirements are not yet due for purposes of redesignation of the Scranton/WilkesBarre Area, but nevertheless, Pennsylvania already has in its approved SIP, an emissions statement rule for the 1hour standard that covers all portions of the designated 8hour nonattainment area and, that satisfies the emissions statement requirement for the 8hour standard. See, 25 Pa. Code 135.21(a)(1), codified at 40 CFR 52.2020; 60 FR 2881, January 12, 1995. With respect to the baseyear inventory requirement, in this notice of proposed rulemaking, EPA is proposing to approve the 2002 baseyear inventory for the Scranton/WilkesBarre Area, which was submitted on June 12, 2007, concurrently with its maintenance plan SIP revision. EPA is proposing to approve the 2002 baseyear inventory as fulfilling the requirements of both section 182(a)(1) and section 172(c)(3) of the Clean Air Act. A detailed evaluation of Pennsylvania's 2002 baseyear inventory for the Scranton/WilkesBarre Area can be found in a Technical Support Document (TSD) prepared by EPA for this rulemaking. EPA has determined that the emission inventory and emissions statement requirements for the Scranton/WilkesBarre Area have been satisfied.

In addition to the fact that Part D requirements applicable for purposes of redesignation did not become due prior to submission of the redesignation request, EPA believes that the general conformity and NSR requirements do not require approval prior to redesignation.

With respect to section 176, Conformity Requirements, section 176(c) of the Clean Air Act requires states to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded or approved under Title 23 U.S.C. and the Federal Transit Act (``transportation conformity'') as well as to all other Federally supported or funded projects (``general conformity''). State conformity revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability that the Clean Air Act required the EPA to promulgate. EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) since State conformity rules are still required after redesignation and Federal conformity rules apply where State rules have not been approved. See, Wall v. EPA, 265 F. 3d 426, 438440 (6th Cir. 2001), upholding this interpretation. See also, 60 FR 62748 (December 7, 1995).

In the case of the Scranton/WilkesBarre Area, EPA has also determined that before being redesignated, the Area need not comply with the requirement that a NSR program be approved prior to redesignation. EPA has determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the standard without Part D NSR in effect. The rationale for this position is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, ``Part D NSR Requirements or Areas Requesting Redesignation to Attainment.'' Normally, a State's Prevention of Significant Deterioration (PSD) program will become effective in the area immediately upon redesignation to attainment. See the more detailed explanations in the following redesignation rulemakings: Detroit, MI (60 FR 1246712468 (March 7, 1995); ClevelandAkronLorrain, OH (61 FR 20458, 2046970, May 7, 1996); Louisville, KY (66 FR 53665, 53669, October 23, 2001); Grand Rapids, MI (61 FR 31831, 3183631837, June 21, 1996). In the case of the Scranton/WilkesBarre Area the Chapter 127 Part D NSR regulations in the Pennsylvania SIP (codified at 40 CFR 52.2020(c)(1)) explicitly apply the requirements for NSR in section 184 of the Clean Air Act to ozone attainment areas within the Ozone Transport Region (OTR). The OTR NSR requirements are more
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stringent than that required for a marginal or basic ozone nonattainment area. On October 19, 2001 (66 FR 53094), EPA fully approved Pennsylvania's NSR SIP revision consisting of Pennsylvania's Chapter 127 Part D NSR regulations that cover the Scranton/WilkesBarre Area.

EPA has also interpreted the section 184 OTR requirements, including the NSR program, as not being applicable for purposes of redesignation. The rationale for this is based on two considerations. First, the requirement to submit SIP revisions for the section 184 requirements continues to apply to areas in the OTR after redesignation to attainment. Therefore, the State remains obligated to have NSR, as well as reasonably available control technology (RACT), and Vehicle Inspection and Maintenance programs even after redesignation. Second, the section 184 control measures are regionwide requirements and do not apply to the Scranton/WilkesBarre Area solely by virtue of the Area's designation and classification. See 61 FR 53174, 5317553176 (October 10, 1996) and 62 FR 24826, 2483032 (May 7, 1997).
3. Part D Nonattainment Area Requirements Under the 1Hour Standard

In its June 8, 2007 decision, the Court limited its vacatur so as to uphold those provisions of the antibacksliding requirements that were not successfully challenged. Therefore the Scranton/WilkesBarre Area must meet the federal antibacksliding requirements. See 40 CFR 51.900, et seq.; 70 FR 30592, 30604 (May 26, 2005), which apply by virtue of the Area's classification for the 1hour ozone NAAQS. As set forth in more detail below, the Area must also address four additional antibacksliding provisions identified by the Court in its decisions.

The antibacksliding provisions at 40 CFR 51.905(a)(1) prescribe 1 hour ozone NAAQS requirements that continue to apply after revocation of the 1hour ozone NAAQS to former 1hour ozone nonattainment areas. Section 51.905(a)(1)(i) provides that: ``The area remains subject to the obligation to adopt and implement the applicable requirements as defined in section 51.900(f), except as provided in paragraph (a)(1)(iii) of paragraph (b) of this section.''

Section 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005), states that:

Applicable requirements means for an area the following requirements to the extent such requirements applied to the area for the area's classification under section 181(a)(1) of the Clean Air Act for the 1hour NAAQS at the time of designation for the 8hour NAAQS.
(1) Reasonably available control technology (RACT).
(2) Inspection and maintenance programs (I/M).
(3) Major source applicability cutoffs for purposes of RACT. (4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section 183(c)(4) of the Clean Air Act.
(7) Clean fuels for boilers under section 182(e)(3) of the Clean Air Act.
(8) Transportation Control Measures (TCMs) during heavy traffic hours as required by section 182(e)(4) of the Clean Air Act. (9) Enhanced (ambient) monitoring under section 182(c)(1) of the Clean Air Act.
(10) Transportation control measures (TCMs) under section 182(c)(5) of the Clean Air Act.
(11) Vehicle miles traveled (VMT) provisions of section 182(d)(1) of the Clean Air Act.
(12) NOX requirements under section 182(f) of the Clean Air Act.
(13) Attainment demonstration or alternative as provided under section 51.905(a)(1)(ii).

Pursuant to 40 CFR 51.905(c), the Scranton/WilkesBarre Area is subject to the obligations set forth in 51.905(a) and 51.900(f).

Prior to its designation as an 8hour ozone nonattainment area, the Scranton/WilkesBarre Area was designated a marginal nonattainment area for the 1hour standard. With respect to the 1hour standard, the applicable requirements under the antibacksliding provisions at 40 CFR 51.905(a)(1) for the Scranton/WilkesBarre Area are limited to RACT and I/M programs specified in section 182(a) of the Clean Air Act and are discussed in the following paragraphs:

Section 182(a)(2)(A) required SIP revisions to correct or amend RACT for sources in marginal areas, such as the Scranton/WilkesBarre Area, that were subject to control technique guidelines (CTGs) issued before November 15, 1990 pursuant to Clean Air Act section 108. On December 22, 1994, EPA fully approved into the Pennsylvania SIP all corrections required under section 182(a)(2)(A) of the Clean Air Act (59 FR 65971, December 22, 1994). EPA believes that this requirement applies only to marginal and higher classified areas under the 1hour NAAQS pursuant to the 1990 amendments to the Clean Air Act; therefore, this is a onetime requirement. After an area has fulfilled the section 182(a)(2)(A) requirement for the 1hour NAAQS, there is no requirement under the 8hour NAAQS.

Section 182(a)(2)(B) relates to the savings clause for vehicle inspection and maintenance (I/M). It requires marginal areas to adopt vehicle I/M programs. This provision was not applicable to the Scranton/WilkesBarre Area because this area did not have, and was not required to have, an I/M program before November 15, 1990.

In addition the Court held that EPA should have retained four additional measures in its antibacksliding provisions: (1) Nonattainment area NSR; (2) Section 185 penalty fees; (3) contingency measures under section 172(c)(9) or 182(c)(9) of the Clean Air Act; and (4) 1hour motor vehicle emission budgets that were yet not replaced by 8hour emissions budgets. These requirements are addressed below:

With respect to NSR, EPA has determined that areas being redesignated need not have an approved nonattainment New Source Review program, for the same reasons discussed previously with respect to the applicable Part D requirement for the 8hour standard.

The section 185 penalty fee requirement was not applicable in the Scranton/WilkesBarre 1hour marginal nonattainment area.

With respect to the requirement for submission of contingency measures for the 1hour standard, section 182(a) does not require contingency measures for marginal areas.

The conformity portion of the Court's ruling does not impact the redesignation request for the Scranton/WilkesBarre Area except to the extent that the Court in its June 8 decision clarified that for those areas with 1hour MVEBs, antibacksliding requires that those 1hour budgets must be used for 8hour conformity determinations until replaced by 8hour budgets. To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93. The court clarified that 1hour conformity determinations are not required for antibacksliding purposes.

Thus EPA has concluded that the area has met all requirements applicable for redesignation under the 1hour standard.

4. Transport Region Requirements

All areas in the Ozone Transport Region (OTR), both attainment and nonattainment, are subject to additional control requirements under section 184 for the purpose of reducing interstate transport of emissions that may contribute to downwind ozone nonattainment. The section 184 requirements include RACT, NSR,
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enhanced vehicle inspection and maintenance (I/M), and Stage II vapor recovery or a comparable measure.

In the case of the Scranton/WilkesBarre Area, which is located in the OTR, nonattainment NSR will continue to be applicable after redesignation. On October 19, 2001, EPA approved the 1hour NSR SIP revision for the Area. See 66 FR 53094 (October 19, 2001).

EPA has also interpreted the section 184 OTR requirements, including NSR, as not being applicable for purposes of redesignation. Reading, PA Redesignation, 61 FR 53174, (October 10, 1996), 62 FR 24826 (May 7, 1997). The rationale for this is based on two considerations. First, the requirement to submit SIP revisions for the section 184 requirements continues to apply to areas in the OTR after redesignation to attainment. Therefore, the Commonwealth remains obligated to have NSR, as well as RACT, and I/M even after redesignation. Second, the section 184 control measures are regionwide requirements and do not apply to the area by virtue of the area's nonattainment designation and classification, and thus are properly considered not relevant to an action changing an area's designation. See 61 FR 53174, 531756 (October 10, 1996) and 62 FR 24826, 2483032 (May 7, 1997).
5. Scranton/WilkesBarre Has a Fully Approved SIP for Purposes of Redesignation

EPA has fully approved the Pennsylvania SIP for the purposes of this redesignation. EPA may rely on prior SIP approvals in approving a redesignation request. Calcagni Memo, p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F. 3d 984, 98990 (6th Cir. 1998), Wall v. EPA, 265 F. 3d 426 (6th Cir. 2001), plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR at 25425 (May 12, 2003) and citations therein.
C. The Air Quality Improvement in the Scranton/WilkesBarre Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions

EPA believes that the Commonwealth has demonstrated that the observed air quality improvement in the Scranton/WilkesBarre Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other Stateadopted measures. Emissions reductions attributable to these rules are shown in Table 3.
Table 3.Total VOC and NOX Emissions for 2002 and 2004 in Tons per Summer Day (tpsd) Nonroad Highway Year Point* Area mobile mobile Total Volatile Organic Compounds (VOC) 2002............................ 4.6 36.0 36.6 19.0 96.2 2004............................ 3.8 35.3 31.6 18.9 89.6 Difference (200204)............ 0.8 0.7 5.0 0.1 6.6 Nitrogen Oxides (NOX) 2002............................ 8.4 3.8 74.4 11.3 97.9 2004............................ 7.0 3.9 66.1 10.9 87.9 Difference (200204)............ 1.4 +0.1 8.3 0.4 10.0 * The stationary point source emissions shown do not include banked emissions reduction credits (ERCs) for sources listed in Technical Appendix A4 to Pennsylvania's SIP submission. The banked ERCs include the following:
[cir] MACtac, Scranton Facility0.20 tpsd VOC.
[cir] Proctor & Gamble, Hehoopany1.70 tpsd VOC and 0.73 tpsd NOX. [cir] TECHNEGLAS, Pittston2.11 tpsd VOC and 0.09 tpsd NOX.
[cir] Thomson No. 1, Dunmore0.15 tpsd VOC and 0.02 tpsd NOX. [cir] Williams Generation, Hazelton Cogeneration2.61 tpsd NOX.

Between 2002 and 2004, VOC emissions decreased by 6.6 tpsd from 96.2 tpsd to 89.6 tpsd. NOX emissions decreased over the same period by 10.0 tpsd from 97.9 tpsd to 87.9 tpsd. EPA believes that permanent and enforceable emissions reductions are the cause of the longterm improvement in ozone levels and are the cause of the Area achieving attainment of the 8hour ozone standard. These reductions, as well as anticipated future reductions, are due to the following permanent and enforceable measures.
1. Stationary Point Sources
Federal NOX SIP Call (66 FR 43795, August 21, 2001) 2. Stationary Area Sources
Solvent Cleaning (68 FR 2206, January 16, 2003)
Portable Fuel Containers (69 FR 70893, December 8, 2004)
3. Highway Vehicle Sources
Federal Motor Vehicle Control Programs (FMVCP)
Tier 1 (56 FR 25724, June 5, 1991)
Tier 2 (65 FR 6698, February 10, 2000)
Heavyduty Engine and Vehicle Standards (62 FR 54694, October 21, 1997, and 65 FR 59896, October 6, 2000)
National Low Emission Vehicle (NLEV) Program (64 FR 72564, December 28, 1999)
PA Vehicle Emission Inspection/Maintenance Program & Changes to Vehicle Safety Inspection Program in nonI/M Counties (70 FR 58313, October 6, 2005)
4. NonRoad Sources
Nonroad Diesel (69 FR 38958, June 29, 2004)
D. The Scranton/WilkesBarre Area Has a Fully Approvable Maintenance Plan Pursuant to Section 175A of the Clean Air Act

In conjunction with its request to redesignate the Scranton/Wilkes Barre ozone nonattainment Area to attainment status, Pennsylvania submitted a SIP revision to provide for maintenance of the 8hour ozone NAAQS in the Area for at least 11 years after redesignation. The Commonwealth is requesting that EPA approve this SIP revision as meeting the requirement of Clean Air
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Act section 175A. Once approved, the maintenance plan for the 8hour ozone NAAQS will ensure that the SIP for the Scranton/WilkesBarre Area meets the requirements of the Clean Air Act regarding maintenance of the applicable 8hour ozone standard.

What Is Required in a Maintenance Plan?

Section 175 of the Clean Air Act sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Eight years after the redesignation, the Commonwealth must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary to assure prompt correction of any future 8hour ozone violations. Section 175A of the Clean Air Act sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The Calcagni memorandum dated September 4, 1992, provides additional guidance on the content of a maintenance plan. An ozone maintenance plan should address the following provisions:
(a) An attainment emissions inventory;
(b) A maintenance demonstration;
(c) A monitoring network;
(d) Verification of continued attainment; and
(e) A contingency plan.
Analysis of the Scranton/WilkesBarre Area Maintenance Plan
(a) Attainment inventoryAn attainment inventory includes the emissions during the time period associated with the monitoring data showing attainment. PADEP determined that the appropriate attainment inventory year is 2004. That year establishes a reasonable year within the threeyear block of 20042006 as a baseline and accounts for reductions attributable to implementation of the Clean Air Act requirements to date. The 2004 inventory is consistent with EPA guidance and is based on actual ``typical summer day'' emissions of VOC and NOX during 2004 and consists of a list of sources and their associated emissions.

The 2002 and 2004 point source data was compiled from actual sources. Pennsylvania requires owners and operators of larger facilities to submit annual production figures and emission calculations each year. Throughput data are multiplied by emission factors from Factor Information Retrieval (FIRE) Data Systems and EPA's publication series AP42, and are based on Source Classification Codes (SCC). The 2002 area source data was compiled using countylevel activity data, from census numbers, from county numbers, etc. The 2004 area source data was projected from the 2002 inventory using temporal allocations provided by the MidAtlantic Regional Air Management Association (MARAMA).

The onroad mobile source inventories for 2002 and 2004 were compiled using MOBILE6.2 and Pennsylvania Department of Transportation (PENNDOT) estimates for VMT. The PADEP has provided detailed data summaries to document the calculations of mobile onroad VOC and NOX emissions for 2002, as well as for the projection years of 2004, 2009, and 2018 (shown in Tables 5 and 6 below).

The 2002 and 2004 emissions for the majority of nonroad emission source categories were estimated using the EPA NONROAD 2005 model. The NONROAD model calculates emissions for diesel, gasoline, liquefied petroleum gasoline, and compressed natural gasfueled nonroad equipment types and includes growth factors. The NONROAD model does not estimate emissions from locomotives or aircraft. For 2002 and 2004 locomotive emissions, the PADEP projected emissions from a 1999 survey using national fuel consumption information and EPA emission and conversion factors. Emissions from commercial aircraft for 2002 and 2004 are estimated using EPAapproved Emissions & Dispersion Modeling System (EDMS) 4.20, the latest version available at the time the inventory was prepared. The Scranton/WilkesBarre International Airport (AVP) accounts for all commercial air traffic in the area. Small aircraft emissions were calculated using small airport statistics from the Federal Aviation Administration's APO Terminal Area Forecast Report and the Web site http://www.airnav.com.

More detailed information on the compilation of the 2002, 2004, 2009, and 2018 inventories can found in the Technical Appendices, which are part of the June 12, 2007 state submittal.
(b) Maintenance DemonstrationOn June 12, 2007, the PADEP submitted a maintenance plan as required by section 175A of the Clean Air Act. The Scranton/WilkesBarre Area maintenance plan shows maintenance of the 8hour ozone NAAQS by demonstrating that current and future emissions of VOC and NOX remain at or below the attainment year 2004 emissions levels throughout the Area through the year 2018. A maintenance demonstration need not be based on modeling. See Wall v. EPA, supra; Sierra Club v. EPA, supra. See also, 66 FR at 5309953100; 68 FR at 2543032.

Tables 4 and 5 specify the VOC and NOX emissions for the Scranton/WilkesBarre Area for 2004, 2009, and 2018. The PADEP chose 2009 as an interim year in the maintenance demonstration period to demonstrate that the VOC and NOX emissions are not projected to increase above the 2004 attainment level during the time of the maintenance period.
Table 4.Total VOC Emissions for 20042018 (tpsd) Source category 2004 2009 2018 Point........................................................... 3.8 4.6 5.9 Area............................................................ 35.3 33.7 36.3 Highway Mobile.................................................. 31.6 2.2 16.9 Nonroad Mobile.................................................. 18.9 16.5 13.2

Total....................................................... 89.6 80.0 72.3 [[Page 54399]]
Table 5.Total NOX Emissions for 20042018 (tpsd) Source category 2004 2009 2018 Point........................................................... 7.0 9.3 10.4 Area............................................................ 3.9 4.1 4.4 Highway Mobile.................................................. 66.1 48.3 23.7 Nonroad Mobile.................................................. 10.9 8.9 5.6

Total....................................................... 87.9 70.6 44.1

Additionally, the following programs are either effective or due to become effective and will further contribute to the maintenance demonstration of the 8hour ozone NAAQS:

Based on the comparison of the projected emissions and the attainment year emissions along with the additional measures, EPA concludes that PADEP has successfully demonstrated that the 8hour ozone standard should be maintained in the Scranton/WilkesBarre Area. (c) Monitoring NetworkThere are four ozone monitors (located in Lackawanna and Luzerne Counties) that were used to support the Commonwealth's ozone maintenance plan for the Scranton/Wilkes/Barre area. The Commonwealth has committed to continue to operate its monitoring network in accordance with 40 CFR part 58, with no reduction in the number of sites.
(d) Verification of Continued AttainmentIn addition to maintaining the key elements of its regulatory program, the Commonwealth will track the attainment status of the ozone NAAQS in the Area by reviewing air quality and emissions data during the maintenance period. The Commonwealth will perform an annual evaluation of Vehicle Miles Traveled (VMT) data and emissions reported from stationary sources, and compare them to the assumptions about these factors used in the maintenance plan. The Commonwealth will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR 51, subpart A) to see if they exceed the attainment year inventory (2004) by more than 10 percent. The PADEP will also continue to operate the existing ozone monitoring station in the Area pursuant to 40 CFR part 58 throughout the maintenance period and submit qualityassured ozone data to EPA through the AQS system. Section 175A(b) of the Clean Air Act states that eight years following redesignation of the Scranton/WilkesBarre Area, PADEP will be required to submit a second maintenance plan that will ensure attainment through 2028. PADEP has made that commitment to meet the requirement section 175A(b).
(e) The Maintenance Plan's Contingency MeasuresThe contingency plan provisions are designed to promptly correct a violation of the NAAQS that occurs after redesignation. Section 175A of the Clean Air Act requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that the Commonwealth will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the events that would ``trigger'' the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s).

The ability of the Scranton/WilkesBarre Area to stay in compliance with the 8hour ozone standard after redesignation depends upon VOC and NOX emissions in the Area remaining at or below 2004 levels. The Commonwealth's maintenance plan projects VOC and NOX emissions to decrease and stay below 2004 levels through the year 2018. The Commonwealth's maintenance plan outlines the procedures for the adoption and implementation of contingency measures to further reduce emissions should a violation occur.

Contingency measures will be considered if for two consecutive years the fourth highest 8hour ozone concentration at any Scranton/ WilkesBarre Area monitor is above 84 ppb. If this trigger point occurs, the Commonwealth will evaluate whether additional local emission control measures should be implemented in order to prevent a violation of the air quality standard. PADEP will also analyze the conditions leading to the excessive ozone levels and evaluate which measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of Federal, state and local measures that have been adopted but not yet implemented at the time the excessive ozone levels occurred. PADEP will then begin the process of implementing any selected measures.

Contingency measures will also be considered in the event that a violation of the 8hour ozone standard occurs at any Scranton/Wilkes Barre Area monitor. In the event of a violation of the 8hour ozone standard, PADEP will adopt additional emissions reduction measures as expeditiously as practicable in accordance with the implementation schedule listed later in this notice and in the Pennsylvania Air Pollution Control Act in order to return the Area to attainment with the standard. Contingency measures to be considered for the Scranton/ WilkesBarre Area will include, but not be limited to the following:

Regulatory measures:
Additional controls on consumer products.
[[Page 54400]]
Additional controls on portable fuel containers.

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

The plan sets forth a process to have regulatory contingency measures in effect within 19 months of the trigger. The plan also lays out a process to implement nonregulatory contingency measures within 1224 months of the trigger.
VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Scranton/WilkesBarre Maintenance Plan Adequate and Approvable? A. What Are the Motor Vehicle Emissions Budgets?

Under the Clean Air Act, States are required to submit, at various times, control strategy SIPs and maintenance plans in ozone areas. These control strategy SIPs (i.e., reasonable further progress SIPs and attainment demonstration SIPs) and maintenance plans identify and establish MVEBs for certain criteria pollutants and/or their precursors to address pollution from onroad mobile sources. In the maintenance plan, the MVEBs are termed ``onroad mobile source emission budgets.'' Pursuant to 40 CFR part 93 and 51.112, MVEBs must be established in an ozone maintenance plan. An MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. An MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish and revise the MVEBs in control strategy SIPs and maintenance plans.

Under section 176(c) of the Clean Air Act, new transportation projects, such as the construction of new highways, must ``conform'' to (i.e., be consistent with) the part of a State's air quality plan that addresses pollution from cars and trucks. ``Conformity'' to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of or reasonable progress towards the NAAQS. If a transportation plan does not ``conform,'' most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and ensuring conformity of such transportation activities to a SIP.

When reviewing submitted ``control strategy'' SIPs or maintenance plans containing MVEBs, EPA must affirmatively find the MVEB contained therein ``adequate'' for use in determining transportation conformity. After EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, the MVEB can be used by state and federal agencies in determining whether proposed transportation projects ``conform'' to the SIP as required by section 176(c) of the Clean Air Act. EPA's substantive criteria for determining ``adequacy'' of a MVEB are set out in 40 CFR 93.118(e)(4).

EPA's process for determining ``adequacy'' consists of three basic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy finding. This process for determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999 guidance, ``Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.'' This guidance was finalized in the Transportation Conformity Rule Amendments for the ``

FOR FURTHER INFORMATION CONTACT Brian Rehn, (215) 814-2176, or by e- mail at rehn.brian@epa.gov.