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Federal Register / Vol. 86, No. 103 / Tuesday, June 1, 2021 / Rules and Regulations
occurred. The comment claims that EPA
is aware Pennsylvania has a history of not meeting its CAA requirements on time, and that it can take Pennsylvania more than two years to implement a regulation, which would be too long to prevent a violation of the NAAQS.
Response: The commenter asserts that Pennsylvania identifies no actual contingency measures because the measures are not yet evaluated and determined and cannot be implemented before a violation of the NAAQS occurs. Because Pennsylvania identifies two regulatory and six nonregulatory contingency measures in general terms, EPA understands the comments use of the term evaluated and determined must mean something like the specific measures identified by PADEP have not been fully promulgated and are not in effect at this time. If EPAs understanding is correct, EPA agrees with this fact, but does not agree that this has any bearing on the approvability of the particular contingency measures or of the overall LMP.
PADEP identifies six non-regulatory measures and two regulatory measures.
The two regulatory measures are additional controls on consumer products and portable fuel containers.
The six non-regulatory measures are:
Voluntary diesel engine chip reflash;
diesel retrofit for public or private local onroad or offroad fleets; idling reduction technology for Class 2 yard locomotives; idling technologies or strategies for truck stops, warehouses, and other freight-handling facilities;
accelerated turnover of lawn and garden equipment; additional promotion of alternative fuel for home heating and agriculture use. As stated in the Calcagni memo, EPAs long-standing interpretation is that contingency measures for maintenance of the NAAQS are not required to be fully adopted in order to be approved. The commenter refers to a recent court case vacating, among other things, the contingency measure provisions in EPAs rule for implementing the 2015
ozone NAAQS, Sierra Club v. EPA, No.
151465 D.C. Cir. January 29, 2021. It is possible that the commenter has conflated the contingency measure provisions at issue in that case, which pertained to attainment plans, and those at issue in this LMP, which pertain to maintenance plans. The contingency measure provisions for maintenance and attainment are found in two different sections of the CAA, with substantially different wording and requirements.
The attainment plan contingency measures provisions in CAA Section 172c9 require that the attainment
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plan have specific measures that can take effect in any such case without further action by the State or the Administrator if the area fails to make reasonable further progress or attain the NAAQS. 42 U.S.C. 7502c9. Section 175A of the CAA sets forth the contingency measure requirements for maintenance areas. Section 175Ad requires that the maintenance plan contain such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. 42
U.S.C. 7505ad. Unlike Section 172c9, there is not requirement under section 175A that the contingency measures be set forth with specificity or that they be able to take effect without further action by EPA or the State.
With this statutory background in mind, EPA does not agree that the plan should be disapproved due to PADEPs ability to promulgate a contingency measure in sufficient time to avert a violation of the NAAQS. As noted previously, CAA section 175Ad mandates that a maintenance plan must contain such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area.
emphasis added. The statute therefore does not include any requirement that a maintenance plans contingency measures prevent a violation of the NAAQS, but rather only that those selected measures be available to address a violation of the NAAQS after it already occurs. Pennsylvania also elected to adopt a warning level response, which states that PADEP will consider adopting contingency measures if, for two consecutive years, the fourth highest eight-hour ozone concentrations at any monitor in the area are above 84 parts per billion ppb.
But this warning level response is not required under the CAA, and therefore we do not agree with the commenter that the plan should be disapproved based on the commenters concern over the timeliness of the warning level response implementation.
Moreover, as a general matter, we do not agree that the schedules for implementation of contingency provisions in the LMP are insufficient.
As noted, the CAA provides some degree of flexibility in assessing a maintenance plans contingency measuresrequiring that the plan contain such contingency provisions as the Administrator deems necessary to assure that any violations of the NAAQS

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will be promptly corrected. EPAs longstanding guidance for redesignations, the Calcagni Memo, also does not provide precise parameters for what strictly constitutes prompt implementation of contingency measures, noting that, for purposes of CAA 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. 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.
IV. Final Action EPA is approving PADEPs second maintenance plan for the Erie Area for the 1997 ozone NAAQS as a revision to the Pennsylvania SIP.
V. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations.
42 U.S.C. 7410k; 40 CFR 52.02a.
Thus, in reviewing SIP submissions, EPAs role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 58 FR 51735, October 4, 1993 and 13563 76 FR 3821, January 21, 2011;
Does not impose an information collection burden under the provisions of the Paperwork Reduction Act 44
U.S.C. 3501 et seq.;
Is certified as not having a significant economic impact on a substantial number of small entities
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