[Federal Register Volume 73, Number 82 (Monday, April 28, 2008)]
[Proposed Rules]
[Pages 22896-22901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9261]



[[Page 22896]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2008-0109; FRL-8559-4]


Determination of Attainment for the Ozone National Ambient Air 
Quality Standards for Nonattainment Areas in Delaware, District of 
Columbia, Maryland, Pennsylvania, and Virginia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to determine that two severe 1-hour ozone 
nonattainment areas, Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD and 
Metropolitan Washington, DC-MD-VA, attained the 1-hour ozone National 
Ambient Air Quality Standards (NAAQS) by the applicable attainment date 
of November 15, 2005. EPA also proposes to find that these areas are 
not subject to the imposition of the penalty fees under section 185 of 
the Clean Air Act (CAA). This proposal is based on three years of 
complete, quality-assured ambient air quality monitoring data for 2003 
through 2005 ozone seasons. This proposed determination of attainment 
is not a redesignation to attainment for these severe areas for which 
air quality monitoring data indicates attainment of the standard. EPA 
is proposing this action to fulfill obligations to make such 
determinations under the CAA.

DATES: Written comments must be received on or before May 28, 2008.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2008-0109 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected]
    C. Mail: EPA-R03-OAR-2008-0109, Cristina Fernandez, Chief, Air 
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2008-0109. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the 
Air Protection Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to EPA.

I. What Actions Are EPA Proposing?

    EPA is proposing two actions for both the Philadelphia-Wilmington-
Trenton, PA-NJ-DE-MD 1-hour ozone nonattainment area (hereafter ``the 
Philadelphia area'') and the Metropolitan Washington, DC-MD-VA 1-hour 
ozone nonattainment area (hereafter ``the Washington area'').
    For the Philadelphia area, EPA is proposing to determine that this 
area attained the 1-hour ozone NAAQS by its attainment date, November 
15, 2005. Because EPA is proposing to find that this area has attained 
the 1-hour ozone NAAQS by its applicable attainment date, we also 
propose to find that this area is not subject to the imposition of the 
section 185 penalty fees.
    For the Washington area, EPA is proposing to determine that this 
area attained the 1-hour ozone NAAQS by its attainment date, November 
15, 2005. Because EPA is proposing to find that this area has attained 
the 1-hour ozone NAAQS by its applicable attainment date, we also 
propose to find that this area is not subject to the imposition of the 
section 185 penalty fees.
    Under Section 181(b)(2) of the CAA, EPA must determine whether 
ozone nonattainment areas have attained the ozone NAAQS by their 
attainment date. In the case of the Philadelphia and Washington areas 
these determinations are based upon air quality monitoring data for the 
2003 through 2005 ozone seasons and must be based on the area's design 
value as of the attainment date.\1\
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    \1\ EPA remains obligated under section 181(b)(2) to determine 
whether an area attained the 1-hour ozone NAAQS by its attainment 
date. However, after the revocation of the 1-hour ozone NAAQS, EPA 
is no longer obligated to reclassify an area to a higher 
classification for the 1-hour NAAQS based upon a determination that 
the area failed to attain the 1-hour NAAQS by the area's attainment 
date for the 1-hour NAAQS. (40 CFR 51.905(e)(2)(i)(B). Thus even if 
we make a finding that an area has failed to attain the 1-hour ozone 
NAAQS by its attainment date, the area would not be reclassified to 
a higher classification.
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    This proposed determination of attainment is not a redesignation to 
attainment action for these severe areas. Nor is it a determination as 
to whether either the Philadelphia area or Washington area has 
continued to maintain attainment with the NAAQS after November 15, 
2005.

II. What Is the Background for These Proposed Actions?

A. What Are the Geographical Boundaries of the Philadelphia and 
Washington Areas?

1. What Are the Geographical Boundaries of the Philadelphia Area 1-Hour 
Severe Ozone Nonattainment Area?
    The Philadelphia 1-hour severe ozone nonattainment area consists 
of: Cecil County, Maryland; Kent and New Castle Counties in Delaware; 
Burlington, Camden, Cumberland, Gloucester, Mercer, and Salem Counties 
in New

[[Page 22897]]

Jersey; and, Bucks, Chester, Delaware, Montgomery, and Philadelphia 
Counties in Pennsylvania.
2. What Are the Geographical Boundaries of the Washington Area 1-hour 
Severe Ozone Nonattainment Area?
    The Washington 1-hour severe ozone nonattainment area consists of 
the District of Columbia (the District), a Northern Virginia portion 
(Arlington, Fairfax, Loudoun, Prince William, and Stafford Counties and 
the cities of Alexandria, Falls Church, Fairfax, Manassas, and Manassas 
Park), and Calvert, Charles, Frederick, Montgomery, and Prince George's 
Counties in Maryland.

B. What Is the History of the Ozone Designations and Classifications 
and 1-Hour Ozone Requirements for the Philadelphia and Washington 1-
Hour Ozone Nonattainment Areas?

    When the CAA Amendments were enacted in 1990, each area of the 
country that was designated nonattainment for the 1-hour ozone NAAQS, 
including the Philadelphia and Washington areas, were classified by 
operation of law as marginal, moderate, serious, severe, or extreme 
depending on the severity of the area's air quality problem. See, CAA 
sections 107(d)(1)(C) and 181(a). The Philadelphia 1-hour zone 
nonattainment area was classified as ``severe-15'' with a statutory 
attainment date of November 15, 2005. See, 56 FR 56694, November 6, 
1991. The Washington area was designated nonattainment and initially 
classified ``serious'' for the 1-hour ozone NAAQS pursuant to section 
181(a) of the CAA, but was later reclassified as ``severe-15'' with a 
statutory attainment date of November 15, 2005, due to its failure to 
attain by the November 15, 1999 attainment date for serious areas. See, 
56 FR 56694, November 6, 1991 and 68 FR 3410, January 24, 2003.

C. What Is the History of the 1-Hour Ozone Requirements Under EPA's 
Anti-Backsliding Rule?

    In an April 30, 2004 final rule (69 FR 23858), EPA designated and 
classified most areas of the country under the 8-hour ozone NAAQS 
promulgated in 40 CFR 50.10. On April 30, 2004, EPA also issued a final 
rule (69 FR 23951) entitled ``Final Rule To Implement the 8-Hour Ozone 
National Ambient Air Quality Standard--Phase 1'' (Phase 1 Rule). Among 
other matters, this rule revoked the 1-hour ozone NAAQS in the 
Philadelphia and Washington areas (as well as most other areas of the 
country), effective June 15, 2005. See, 40 CFR 50.9(b); 69 FR at 23996; 
and 70 FR 44470, August 3, 2005. This Phase 1 Rule also set forth how 
anti-backsliding principles will ensure continued progress toward 
attainment of the 8-hour ozone NAAQS by identifying which 1-hour 
requirements remain applicable in an area after revocation of the 1-
hour ozone NAAQS. Among the requirements not retained were the section 
185 requirements for 1-hour severe or extreme nonattainment areas that 
fail to attain the 1-hour ozone NAAQS by the applicable 1-hour 
attainment date and the requirement to implement contingency measures 
for failure to attain the 1-hour ozone NAAQS by the applicable 
attainment date. See, 69 FR 23951, April 30, 2004, and 70 FR 30592, May 
26, 2005.
    On December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit (the Court) vacated EPA's Phase 1 Implementation Rule 
for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). South 
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 
2006). Subsequently, in South Coast Air Quality Management Dist. v. 
EPA, 489 F.3d 1295 (D.C. Cir. 2007), in response to several petitions 
for rehearing, the Court clarified that the Phase 1 Rule was vacated 
only with regard to those parts of the rule that had been successfully 
challenged. With respect to the challenges to the anti-backsliding 
provisions of the rule, the Court vacated three provisions that would 
have allowed States to remove from the SIP or to not adopt three 1-hour 
obligations once the 1-hour ozone NAAQS was revoked: (1) Nonattainment 
area new source review (NSR) requirements based on an area's 1-hour 
nonattainment classification; (2) section 185 requirement for 1-hour 
severe or extreme nonattainment areas that fail to attain the 1-hour 
ozone NAAQS by the 1-hour attainment date; and (3) measures to be 
implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on 
the contingency of an area not making reasonable further progress 
toward attainment of the 1-hour NAAQS or for failure to attain that 
NAAQS. The Court clarified that 1-hour conformity determinations are 
not required for anti-backsliding purposes.
    The provisions in 40 CFR 51.905(a)-(c) remain in effect and areas 
must continue to meet those anti-backsliding requirements. However, the 
three provisions noted previously, which are specified in 51.905(e), 
were vacated by the Court. As a result, States must continue to meet 
the obligations for 1-hour NSR; 1-hour contingency measures; and, for 
severe and extreme areas, the obligations related to the section 185 
requirement. Currently, EPA is developing two proposed rules to address 
the Court's vacatur and remand with respect to these three 
requirements. We will address in this proposed rule how the 1-hour 
obligations that currently continue to apply under EPA's anti-
backsliding rule (as interpreted by the Court) apply where EPA has made 
a determination that the area attained the 1-hour ozone NAAQS by its 
attainment date.

D. What Are the Section 185 Requirements Pertinent to This Proposed 
Action?

    Section 185(a) of the CAA states that for a severe or extreme ozone 
nonattainment a State must collect fees on certain stationary sources 
of air pollution if the area ``has failed to attain the national 
primary ambient air quality standard for ozone by the applicable 
attainment date.''

E. What Are the Data Rounding Conventions for the 1-Hour Ozone NAAQS?

    Although the 1-hour ozone NAAQS as promulgated in 40 CFR 50.9 
includes no discussion of specific data handling conventions, our 
publicly articulated position and the approach long since universally 
adopted by the air quality management community is that the 
interpretation of the 1-hour ozone standard requires rounding ambient 
air quality data consistent with the stated level of the standard, 
which is 0.12 parts per million (ppm). 40 CFR 50.9(a) states that: 
``The level of the national 1-hour primary and secondary ambient air 
quality standards for ozone * * * is 0.12 parts per million. * * *. The 
standard is attained when the expected number of days per calendar year 
with maximum hourly average concentrations Pennsylvania 0.12 parts per 
million * * * is equal to or less than 1, as determined by appendix H 
to this part.''
    We have clearly communicated the data handling conventions for the 
1-hour ozone NAAQS in guidance documents. As early as 1979, EPA issued 
guidance that the level of our NAAQS dictates the number of significant 
figures to be used in determining whether the standard was exceeded. 
The stated level of the standard is taken as defining the number of 
significant figures to be used in comparisons with the standard. For 
example, a standard level of 0.12 ppm means that measurements are to be 
rounded to two decimal places (0.005 rounds up), and, therefore, 0.125 
ppm is the smallest concentration value in excess of the level of the 
standard. See,

[[Page 22898]]

``Guideline for the Interpretation of Ozone Air Quality Standards,'' 
EPA-450/4-79-003, OAQPS No. 1.2-108, January 1979. EPA has consistently 
applied the rounding convention in this 1979 guideline. For example, 
see, 68 FR 19106 at 19111, April 17, 2003; 68 FR 62041 at 62043, 
October 31, 2003; and, 69 FR 21717 at 21719, April 22, 2004.

F. How Do We Make Attainment Determinations?

    Section 181(b)(2)(A) requires the Administrator to determine after 
the attainment date whether ozone nonattainment areas have attained the 
NAAQS. This provision states: ``Within 6 months following the 
applicable attainment date (including any extension thereof) for an 
ozone nonattainment area, the Administrator shall determine, based on 
the area's design value (as of the attainment date), whether the area 
attained the standard by the date.'' Although section 181(b)(2)(A) 
states that the determination of attainment status be based on the 
area's ``design value,'' EPA interprets this provision generally to 
refer to EPA's methodology for determining attainment status. That is, 
EPA determines attainment status under the 1-hour ozone NAAQS on the 
basis of the annual average number of expected exceedances of the NAAQS 
over the 3-year period up to, and including, the attainment date. See, 
60 FR 3349, January 17, 1995. See, also, ``General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498 at 13506, April 16, 1992 (the ``General Preamble'').
    We will determine whether an area's air quality is meeting the 
NAAQS for purposes of sections 181(b)(2) based upon data that has been 
collected and quality-assured in accordance with 40 CFR part 58, and 
recorded in EPA's Air Quality System (AQS) database, (formerly known as 
the Aerometric Information Retrieval System (AIRS)).
    The 1-hour ozone NAAQS is 0.12 ppm, not to be exceeded on average 
more than 1 day per year averaged over any 3-year period. See, 40 CFR 
50.9 and appendix H to 40 CFR part 50. To account for missing data, the 
procedures found in appendix H to 40 CFR part 50 are used to adjust the 
actual number of monitored exceedances of the standard to yield the 
annual number of expected exceedances (``expected exceedance days'') at 
an air quality monitoring site. Under our policies, we determine if an 
area has attained the 1-hour ozone NAAQS by calculating, at each 
monitor, the average expected number of days over the standard per year 
(i.e., ``average number of expected exceedance days'') during the 
applicable 3-year period. See, generally the General Preamble, 57 FR at 
13506, April 16, 1992 and Memorandum from D. Kent Berry, Acting 
Director, Air Quality Management Division, EPA, to Regional Air Office 
Directors; ``Procedures for Processing Bump Ups and Extensions for 
Marginal Ozone Nonattainment Areas,'' February 3, 1994. While the 
latter is explicitly applicable only to marginal areas, the general 
procedures for evaluating attainment in terms of the average number of 
expected exceedance days during the applicable 3-year period in this 
memorandum apply regardless of the initial classification of an area 
because all findings of attainment are made pursuant to the same CAA 
requirements in section 181(b)(2).
    As noted previously, the applicable attainment date under the 1-
hour ozone NAAQS for both the Philadelphia and Washington areas was 
November 15, 2005. Under these requirements, for severe ozone 
nonattainment areas with a statutory attainment date of November 15, 
2005, we have based our proposed determination of attainment of the 1-
hour ozone NAAQS by the applicable attainment date on the average 
number of expected exceedance days per year for the period 2003 though 
2005 to determine whether the area met its applicable attainment date 
under section 181 of the CAA. We have reviewed this data to determine 
the area's air quality status in accordance with 40 CFR 50.9, and EPA 
policy guidance as discussed in the preceding paragraphs and in the 
previous discussion on rounding conventions elsewhere in the is 
document.

III. What Is the Basis for EPA's Proposed Determinations of Attainment 
Under Section 181?

A. How Did We Determine That the Philadelphia and Washington Areas 
Attained the 1-Hour Ozone NAAQS by the Applicable Attainment Date?

    From 2003 through 2005, ambient air quality for ozone was monitored 
on a continuous basis at 18 monitoring sites within the Philadelphia 
area and at 17 monitoring sites in the Washington area. As noted 
previously, the applicable attainment date for both the Philadelphia 
and Washington severe 1-hour ozone nonattainment areas was November 15, 
2005. We are evaluating attainment based on the data from 2003 through 
2005.
1. Summary of the Philadelphia Area's Ozone Data for 2003 to 2005
    During the entire 2003 to 2005 period, 18 ozone monitoring stations 
in the Philadelphia area were in operation. One other monitor 
discontinued operations in 2003.\2\ Table 1.A summarizes the ozone data 
collected at the 18 ozone monitoring stations during the 2003 to 2005 
period and included in AQS for the Philadelphia area. This data has 
been quality assured and is recorded in AQS. The Philadelphia area 
States use the AQS as the permanent database to maintain its data and 
quality assure the data transfers and content for accuracy. We have 
used the established rounding conventions set forth in our guidance 
documents and regulations.
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    \2\ This was the monitor located at West Chester University in 
West Chester, Chester County, Pennsylvania (AQS ID 
420290050). The monitor had averaged 0.3 exceedances per year over 
this 3-year period from 2001 to 2003. Therefore, EPA concludes that 
this monitor was attaining the 1-hour ozone NAAQS at the time 
monitoring ceased at this site.

 Table 1.A.--Average Number of Ozone Expected Exceedance Days Per Year by Monitors in the Philadelphia Area 2003
                                                     to 2005
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                         Monitor information                               Number of expected         Average
----------------------------------------------------------------------      exceedance days          number of
                                                                      ---------------------------    expected
                                                                                                    exceedance
         State                     Monitor               AQS ID No.                                days per year
                                                                         2003     2004     2005  ---------------
                                                                                                      2003-05
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DE....................  Killens Pond Rd, Kent County.       100010002      1.0      0.0      0.0             0.3
DE....................  Lums Pond State Park, New           100031007      1.0      0.0      2.0             1.0
                         Castle County.
DE....................  Brandywine Creek State Park,        100031010      0.0      0.0      0.0             0.0
                         New Castle County.

[[Page 22899]]

 
DE....................  Bellevue State Park, New            100031013      0.0      0.0      0.0             0.0
                         Castle County.
MD....................  Fairhill, Cecil County.......       240150003      0.0      0.0      2.0             0.7
NJ....................  Copewood E. Davis Sts, Camden       340070003      0.0      0.0      0.0             0.0
NJ....................  Ancora State Hospital, Camden       340071001      2.0      0.0      0.0             0.7
                         County.
NJ....................  Lincoln Ave. & Highway 55,          340110007      1.0      0.0      1.0             0.7
                         Vineland, Cumberland County.
NJ....................  Shady Lane Rest Home,               340150002      2.0      0.0      0.0             0.7
                         Clarksboro, Gloucester
                         County.
NJ....................  Rider College, Mercer County.       340210005      0.0      0.0      0.0             0.0
PA....................  Rockview Lane, Bristol, Bucks       420170012      0.0      0.0      1.0             0.3
                         County.
PA....................  New Garden Airport--                420290100      0.0      0.0      1.0             0.3
                         Toughkenamon, Chester County.
PA....................  Front St & Norris St,               420450002      0.0      0.0      1.1             0.4
                         Chester, Delaware County.
PA....................  State Armory, Norristown,           420910013      0.0      0.0      0.0             0.0
                         Montgomery County.
PA....................  1501 E Lycoming Ave AMS Lab,        421010004      0.0      0.0      0.0             0.0
                         Philadelphia.
PA....................  Roxy Water Pump Sta,                421010014      0.0      0.0      0.0             0.0
                         Philadelphia.
PA....................  Grant-Ashton Roads, NE              421010024      0.0      0.0      2.0             0.7
                         Airport, Philadelphia.
PA....................  Amtrak, 5917 Elmwood Avenue,        421010136      0.0      0.0      0.0            0.0
                         Philadelphia.
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Source: EPA AQS Database.

    As shown in Table 1.A, the average number of expected exceedance 
days per year is less than or equal to 1.0 at all of the sites. 
Therefore, we propose to find that the Philadelphia area attained the 
1-hour ozone NAAQS by November 15, 2005, which was the applicable 
attainment date under the 1-hour ozone NAAQS for this nonattainment 
area.
2. Summary of the Washington Area's Ozone Data for 2003 to 2005
    During the entire 2003 to 2005 period, there were 17 ozone 
monitoring stations in the Washington area were in operation. One other 
monitor had discontinued operations in 2003.\3\ Table 1.B summarizes 
the ozone data collected at the ozone monitoring stations during the 
2003 to 2005 period and included in AQS for the Washington area. This 
data has been quality assured and is recorded in AQS. The Washington 
area States use the AQS as the permanent database to maintain its data 
and quality assure the data transfers and content for accuracy. We have 
used the established rounding conventions set forth in our guidance 
documents and regulations.
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    \3\ This was the monitor located at the Goddard Space Flight 
Center in Greenbelt, Prince George's County, Maryland (AQS 
Id 240330002). This monitor had averaged of 0.7 exceedances 
per year over this 3-year period from 2001 to 2003. Therefore, EPA 
concludes that this monitor was attaining the 1-hour ozone NAAQS at 
the time monitoring ceased at this site.

Table 1.B.--Average Number of Ozone Expected Exceedance Days per Year by Monitors in the Washington Area 2003 to
                                                      2005
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                         Monitor information                               Number of expected     Average number
----------------------------------------------------------------------      exceedance days        of  expected
                                                                      ---------------------------   exceedance
                                                                                                   days per year
         State                     Monitor               AQS ID No.      2003     2004     2005  ---------------
                                                                                                      2003-05
----------------------------------------------------------------------------------------------------------------
DC....................  Tacoma School, Washington....       110010025      0.0      0.0      0.0             0.0
DC....................  River Terrace, 34th and Dix         110010041      0.0      0.0      0.0             0.0
                         Streets, NE, Washington.
DC....................  McMillan Reservoir, 2500 1st        110010043      0.0      0.0      0.0             0.0
                         Street, NW, Washington.
MD....................  Calvert County...............       240090011   Note 1   Note 1      0.0          Note 1
MD....................  Southern Maryland, Charles          240170010      1.0      0.0      0.0             0.3
                         County.
MD....................  Frederick County.............       240210037      0.0      0.0      0.0             0.0
MD....................  Rockville, Montgomery County.       240313001      1.1      0.0      0.0             0.4
MD....................  Howard University's                 240330030   Note 1   Note 1      0.0          Note 1
                         Beltsville Laboratory,
                         Beltsville, Prince George's
                         County.
MD....................  P.G. County Equestrian Cntr,        240338003      2.0      0.0      0.0             0.7
                         Prince George's County.
VA....................  18th And Hayes St, Arlington        510130020      1.0      0.0      0.0             0.3
                         County.
VA....................  Cub Run Lee Rd, Chantilly,          510590005      0.0      0.0      0.0             0.0
                         Fairfax County.
VA....................  Mount Vernon, Fairfax County.       510590018      2.0      1.0      0.0             1.0
VA....................  Lee Park, Franconia, Fairfax        510590030      1.0      1.0      0.0             0.7
                         County.
VA....................  6507 Columbia Pike,                 510591005      1.0      0.0      0.0             0.3
                         Annandale, Fairfax County.
VA....................  McLean, Fairfax County.......       510595001      0.0      1.0      0.0             0.3
VA....................  Ashburn, Loudoun County......       511071005      0.0      1.0      0.0             0.3
VA....................  Long Park, Prince William           511530009      0.0      0.0      0.0             0.0
                         County.
VA....................  Widewater, Stafford County...       511790001      0.0      0.0      0.0             0.0

[[Page 22900]]

 
VA....................  Alexandria City..............       515100009      0.0      1.0      0.0            0.3
----------------------------------------------------------------------------------------------------------------
Source: EPA AQS Database.


    Notes: 1. These two additional monitoring sites commenced 
operations in 2005. Because neither of these two monitoring sites 
recorded an exceedance of the 1-hour ozone NAAQS in 2005, EPA 
concludes that these monitors were attaining the 1-hour ozone NAAQS 
in 2005.

    As shown in Table 1.B, the average number of expected exceedance 
days per year is less than or equal to 1.0 at all of the sites. 
Therefore, we propose to find that the Washington area attained the 1-
hour ozone NAAQS by November 15, 2005, which was the applicable 
attainment date under the 1-hour ozone NAAQS for this nonattainment 
area.

IV. What Would Be the Consequences of This Proposed Action?

    Because the area has attained the 1-hour ozone NAAQS by the 
applicable attainment date, the area is not subject to the requirement 
to implement contingency measures for failure to attain the 1-hour 
ozone NAAQS by its attainment date. Since the area has met its 
attainment deadline, even if the area subsequently lapses into 
nonattainment, it would not be required to implement the contingency 
measures for failure to attain the 1-hour ozone NAAQS by its attainment 
date.
    If a severe or extreme 1-hour ozone nonattainment area attains by 
its 1-hour ozone attainment date, it would not be required to implement 
the section 185 penalty fees program. Section 185(a) of the CAA states 
that a severe or extreme ozone nonattainment must implement a program 
to impose fees on certain stationary sources of air pollution if the 
area ``has failed to attain the national primary ambient air quality 
standard for ozone by the applicable attainment date.'' Consequently, 
if such an area has attained the standard as of its applicable 
attainment date, even if it subsequently lapses into nonattainment, the 
area would not be required to implement the section 185 penalty fees 
program. Because EPA is proposing to find that the area has attained 
the 1-hour ozone NAAQS by its applicable attainment date, we also 
propose to find that the area is not subject to the imposition of the 
section 185 penalty fees.

V. Proposed Actions

A. Philadelphia Area

    Based upon EPA's review of the air quality data for the 3-year 
period 2003 to 2005, EPA is proposing to determine that the 
Philadelphia severe 1-hour ozone nonattainment area attained the 1-hour 
ozone NAAQS by the applicable attainment date of November 15, 2005. EPA 
also proposes to find that this area is not subject to the imposition 
of the section 185 penalty fees.

B. Washington Area

    Based upon EPA's review of the air quality data for the 3-year 
period 2003 to 2005, EPA is proposing to determine that the Washington 
severe 1-hour ozone nonattainment area attained the 1-hour ozone NAAQS 
by the applicable attainment date of November 15, 2005. EPA also 
proposes to find that this area is not subject to the imposition of the 
section 185 penalty fees.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposed action merely proposes to find that an area has attained 
a previously-established NAAQS based on an objective review of measured 
air quality data and imposes no additional requirements. Accordingly, 
the Administrator certifies that this proposed 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 does not impose any additional enforceable duties, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4). This proposed rule also does 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), nor will it 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), because it 
merely proposes to determine that each of two areas has attained a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. This 
proposed rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant.
    This rule does not involve establishment of technical standards, 
and 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. 
As required by section 3 of Executive Order 12988 (61 FR 4729, February 
7, 1996), in issuing this proposed rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct. 
EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order. These proposed rules to determine that the 
Philadelphia and Washington severe zone nonattainment

[[Page 22901]]

areas attained the 1-hour ozone NAAQS and are not required to impose 
section 185 penalty fees does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

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

    Dated: April 15, 2008.
W.T. Wisniewski,
Acting Regional Administrator, Region III.
 [FR Doc. E8-9261 Filed 4-25-08; 8:45 am]
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