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Federal Register / Vol. 86, No. 54 / Tuesday, March 23, 2021 / Rules and Regulations
effect without further action by the state in order for the maintenance plan to be approved. Calcagni memo at 12.
However, the guidance does state that the plan should ensure that the measures are adopted expediently once they are triggered, and should provide a schedule and procedure for adoption and implementation, and a specific time limit for action by the state. Id. We think the States plan, which provides specific lists of regulatory and non-regulatory measures that the state would consider after evaluating and assessing what it believed to be the cause of increased ozone concentrations, and the specific timeframes it would use to expediently implement the various measures, meets the requirements of CAA section 175A.
Comment 2: The commenter questions the validity of the two regulatory contingency measures. The commenter claims that previously implemented measures cannot be used as contingency measures, calling into question one of the contingency measures that was previously approved into Pennsylvanias SIP. The comment also states that another contingency measure regarding portable fuel containers is already in effect nationwide and that PAs SIP
submission does not reference the national regulation at 40 CFR part 59, but notes that the Pennsylvania portable fuel container rule was repealed in 2012, and that the States submission doesnt explain what is intended by this contingency measure. The commenter also states that EPA may not rely on the proposed non-regulatory control measures because those are only SIPstrengthening.
Response 2: The commenter asserts that Pennsylvania cannot implement existing controls as contingency measures. However, as expressly noted in the LMP, Pennsylvania states that both of the contingency measures the commenter objects to, will be in addition to existing controls.
PADEP identifies the consumer products contingency measure as being additional controls on consumer products. While Pennsylvania already has in place volatile organic compounds VOC limits for certain consumer products in its regulations at 25 Pa.
Code Chapter 130, EPA understands that PADEP would need to use its rulemaking process to enact additional controls on VOC emissions from consumer products that go beyond those already implemented under 25 Pa. Code Chapter 130. As the commenter points out, PADEP has not identified what those specific additional measures would be. EPAs interpretation of the
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CAA as stated in the Calcagni memo is that contingency measures are not required to be fully adopted in order to be approved. Therefore, it is reasonable to interpret the use of additional here as indicating that the State would be adopting new controls the go beyond those already on the books, by, e.g., establishing limits for categories or types of consumer products not already regulated or possibly by regulating more stringently those products already regulated under 25 Pa. Code Chapter 30.
The commenter also objects to PADEP
identifying controls on portable fuel containers as a contingency measure. As with the consumer products rule, PADEP clearly contemplates enacting, if the occasion arises, additional controls beyond any national or state rule already on the books and being implemented. Those additional controls would, like the consumer product rule, need to establish limits on VOC emissions on portable fuel containers that go beyond any regulations currently in effect in PA.
Under the national rule codified 40 CFR
59.697, states are not precluded from adopting and enforcing any emission standard or limitation. EPA promulgates national regulations that provide a floor nationwide, but States have the legal authority under CAA section 116 to regulate more stringently.
We note that no maintenance plan can be expected to cover every possible contingency. Greenbaum v. EPA, 370
F.3d 527 6th Cir. 2004. It is possible that PADEP may not complete promulgation of the regulatory measures in its estimated time frame. EPA
believes that PADEP has prudently supported its proposed regulatory contingency measures with six nonregulatory contingency measures. It is EPAs belief that the presence of the non-regulatory measures enhances the Commonwealths ability to respond to remedy any future violation of the NAAQS.
Comment 3: The commenter speculates that for PADEP to implement the non-regulatory measures it must need to identify timely sources of funding for those measures.
Response 3: This comment is purely speculative. The comment does not provide any specific facts or analysis that would call into question Pennsylvanias ability to identify timely sources of funding for the nonregulatory contingency measures if they ever needed to be implemented. As we noted previously, CAA section 175Ad requires only that the plan contain contingency provisions that the Administrator deems necessary to assure that a violation will be promptly
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corrected. EPAs analysis is that by including a suite of eight regulatory and non-regulatory contingency measures in the LMP, the Commonwealth increases its opportunities to implement such measures as might ever prove necessary to promptly correct a violation of the NAAQS.
Comment 4: The second commenter claims that EPA must disapprove PADEPs SIP for several reasons. First, the commenter claims that PADEP
cannot afford to maintain an sic SIP
that has experienced a significant deterioration in safety under this management plan for more than six months. Then, the commenter states additional concerns that the agency may be obliged to undertake a higher maintenance program if the plan shows a serious deterioration in safety, due to a significant change in design standards, a significant increase in labor expenditures, or a substantial expansion of the number of workers employed in the SIP. See supra infra at 45.
However, for the reasons set forth above, there is nothing in the applicable statute to prevent the agency from requiring the maintenance of an sic SIP with a plan less severe than what the State requires of a temporary SIP. See supra infra at 4
7.
Response 4: EPA believes that this comment, although referring to both, maintenance plans and SIPs, appears to be using those terms to refer to something other than the particular maintenance plan and revision to the Pennsylvania SIP that is the subject of this rulemaking. The comment also appears to reference either another document or section of a document See supra infra at 45, etc. that has not been provided and does not provide context for these comments. EPA
believes that this comment is most likely intended to address something other than the subject of this rulemaking, and therefore is not relevant, and does not require a substantive response.
Comment 5: The third commenter claims that EPA should disapprove this SIP maintenance plan if the EPA
confirms that the plan cannot meet the recommendations contained in Section 7 and 8. The commenter references regulations under Section 7, 8, 9, 10, and Part 2 throughout. They also state that the public must be assured that Section 8 and 9 requirements can be fulfilled and the CAA requirements are blessed by the OIG.
Response 5: It is unclear what document the commenter is referencing.
Additionally, the reference to the OIG, EPA understands to refer to the Office of Inspector General. The Office of
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