[Federal Register Volume 76, Number 14 (Friday, January 21, 2011)]
[Rules and Regulations]
[Pages 3840-3843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1262]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R03-OAR-2010-0574; FRL-9251-7]


Approval of One-Year Extension for Attaining the 1997 8-Hour 
Ozone Standard for the Delaware, Maryland, and Pennsylvania Portions of 
the Philadelphia-Wilmington-Atlantic City Moderate Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is extending the attainment date from June 15, 2010 to 
June 15, 2011 for the Delaware, Maryland, and Pennsylvania portions of 
the Philadelphia-Wilmington-Atlantic City nonattainment area 
(Philadelphia Area), which is classified as moderate for the 1997 8-
hour ozone national ambient air quality standard (NAAQS). This 
extension is based in part on air quality data recorded during the 2009 
ozone season. Specifically, the Philadelphia Area's 4th highest daily 
8-hour monitored ozone value during the 2009 ozone season is 0.084 
parts per million (ppm) or less. Accordingly, EPA is revising the 
tables concerning the 8-hour ozone attainment dates for the 
Philadelphia Area in the States of Delaware and Maryland, and the 
Commonwealth of Pennsylvania (the States). EPA is approving the 
extension of the attainment date for the Delaware, Maryland, and 
Pennsylvania portions of the Philadelphia Area in accordance with the 
requirements of the Clean Air Act (CAA). EPA is approving the extension 
of the attainment date for the New Jersey portion of the Philadelphia 
Area in a separate rulemaking in this Federal Register.

DATES: Effective Date: This final rule is effective on February 22, 
2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-0574. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (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 through http://www.regulations.gov or in hard copy for public inspection during normal 
business hours at the Air Protection Division, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. Copies of the State submittal are available at the 
Delaware Department of Natural Resources and Environmental Control, 89 
Kings Highway, P.O. Box 1401, Dover, Delaware 19903; the Maryland 
Department of the Environment, 1800 Washington Boulevard, Suite 705, 
Baltimore, Maryland 21230; and the Pennsylvania Department of 
Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 
400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Maria Pino, (215) 814-2181, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On November 9, 2010 (75 FR 68736), EPA published a notice of 
proposed rulemaking (NPR) for the States. The NPR proposed approval of 
requests made by the States for a one-year attainment date extension 
for the Philadelphia Area. The Philadelphia Area, which is classified 
as moderate for the 1997 8-hour ozone NAAQS, consists of: Cecil County 
in Maryland; Bucks, Chester, Delaware, Montgomery and Philadelphia 
Counties in Pennsylvania; the entire State of Delaware; and Atlantic, 
Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Ocean, 
and Salem Counties in New Jersey. Since this area was classified as a 
moderate ozone nonattainment area, the statutory ozone attainment date, 
as prescribed by section 181(a) of the CAA, is June 15, 2010. The 
States requested that the attainment date be extended to June 15, 2011. 
As previously stated, EPA is approving the extension of the attainment 
date for the New Jersey portion of the Philadelphia Area in a separate 
rulemaking notice in this Federal Register.
    Section 172(a)(2)(C) of subpart 1 of the CAA provides for EPA to 
extend the attainment date for an area by one year if the State has 
complied with all the requirements and commitments pertaining to the 
area in the applicable implementation plan and no more than a minimal 
number of exceedances of the NAAQS has occurred in the attainment year. 
Up to two one-year extensions may be issued for a single nonattainment 
area. Section 181(a)(5) of subpart 2 contains a similar provision for 
the ozone NAAQS, but instead of providing for an extension where there 
has been a ``minimal'' number of exceedances, it allows an extension 
only if there is no more than one exceedance of the NAAQS in the year 
preceeding the extension year. However, the language in section 
181(a)(5) reflects the form of the 1-hour ozone NAAQS and not the 1997 
8-hour ozone NAAQS. 40 CFR 51.907 sets forth how sections

[[Page 3841]]

172(a)(2)(C) and 181(a)(5) apply to an area subject to the 1997 8-hour 
ozone NAAQS.
    EPA has determined that the requirements for a one-year extension 
of the attainment date, as set out under 40 CFR 51.907, have been 
fulfilled as follows:
    (1) The States have complied with all requirements and commitments 
pertaining to the area in the applicable ozone implementation plan. The 
applicable ozone implementation plans can be found at 40 CFR 52.420, 40 
CFR 52.1070, 40 CFR 52.2020, for the States of Delaware, Maryland, and 
Pennsylvania, respectively; and
    (2) the Philadelphia Area's 4th highest daily 8-hour monitored 
value during the 2009 ozone season is 0.084 ppm or less.
    Therefore, EPA approves the States' attainment date extension 
requests for the Delaware, Maryland, and Pennsylvania portions of the 
Philadelphia Area. As a result, the charts in 40 CFR 81.308, 40 CFR 
81.321, and 40 CFR 81.339 are being modified to reflect EPA's approval 
of the States' attainment date extension request. Those charts are 
entitled ``Delaware-Ozone (8-Hour Standard)'', ``Maryland-Ozone (8-Hour 
Standard)'', and ``Pennsylvania-Ozone (8-Hour Standard)'', 
respectively.
    In the Technical Support Document (TSD) for this action, EPA 
evaluates the air quality monitoring data for the Philadelphia Area. 
For details, please refer to EPA's TSD. Other specific requirements for 
an attainment date extension and the rationale for EPA's proposed 
action are explained in the NPR and will not be restated here. No 
public comments were received on the NPR.

II. Final Action

    EPA is approving a 1-year attainment date extension, from June 15, 
2010 to June 15, 2011, for the Delaware, Maryland, and Pennsylvania 
portions of the Philadelphia Area, which is classified as moderate for 
the 1997 8-hour ozone NAAQS.

III. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This 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 determines 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 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 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.
    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low income 
populations in the United States.
    EPA has determined that this direct final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The rulemaking does not affect the level of protection 
provided to human health or the environment because extending the 
attainment date does not alter the emission reduction measures that are 
required to be implemented in the Philadelphia Area, which is 
classified as moderate nonattainment for the 1997 8-hour ozone 
standard. See 69 FR at 23909 (April 30 2004). Additionally, if the 
Philadelphia Area were not granted an extension of its attainment date, 
EPA's recourse would be to initiate a reclassification of the 
Philadelphia Area from its current classification of moderate 
nonattainment to serious nonattainment, pursuant to section 181(b)(2) 
of the CAA. Because the Philadelphia Area was formerly a severe 
nonattainment area under the revoked 1-hour ozone standard (see 56 FR 
at 56773, November 6, 1991), it is required to continue to implement 
severe area requirements pursuant to EPA's interpretation of ``anti-
backsliding'' provision of section 172(e) of the CAA. See 69 FR at 
23973, April 30, 2004, South Coast Air Quality Management District v. 
EPA, 472 F.3d 882 (D.C. Cir. 2006), modified and rehearing den., 489 
F.3d 1245 (D.C. Cir. 2007). The severe area requirements are more 
stringent than both the moderate and serious area requirements set 
forth in Title I, Part D, Subpart 2 of the CAA. Therefore, even if EPA 
were to not grant the attainment date extension and instead move to 
reclassify the area to serious nonattainment, no additional emission 
reduction measures would be required to be implemented in the 
Philadelphia Area through a 181(b)(2) reclassification. This action 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

[[Page 3842]]

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 22, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This 1-year attainment date extension for the 1997 8-hour ozone 
NAAQS for the Delaware, Maryland, and Pennsylvania portions of the 
Philadelphia Area may not be challenged later in proceedings to enforce 
its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: January 4, 2011.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for Part 81 continues to read as follows:

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


0
2. In Sec.  81.308, the table entitled ``Delaware--Ozone (8-Hour 
Standard)'' is revised to read as follows:


Sec.  81.308  Delaware.

* * * * *

                                                 Delaware--Ozone
                                                [8-Hour standard]
----------------------------------------------------------------------------------------------------------------
                                               Designation \a\                    Category/classification
         Designated area          ------------------------------------------------------------------------------
                                        Date \1\              Type              Date \1\              Type
----------------------------------------------------------------------------------------------------------------
Philadelphia-Wilmington-Atlantic
 Ci, PA-NJ-MD-DE:
    Kent County..................  ..................  Nonattainment.....  ..................  Subpart 2/
                                                                                                Moderate.\2\
    New Castle County............  ..................  Nonattainment.....  ..................  Subpart 2/
                                                                                                Moderate.\2\
    Sussex County................  ..................  Nonattainment.....  ..................  Subpart 2/
                                                                                                Moderate.\2\
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ Attainment date extended to June 15, 2011.

* * * * *

0
3. In Sec.  81.321, the table entitled ``Maryland--Ozone (8-Hour 
Standard)'' is amended by revising the entry for Philadelphia-Wilmin-
Atlantic Ci, PA-NJ-MD-DE (Cecil County) to read as follows:


Sec.  81.321  Maryland.

* * * * *

                                                 Maryland--Ozone
                                                [8-Hour standard]
----------------------------------------------------------------------------------------------------------------
                                               Designation \a\                    Category/classification
         Designated area          ------------------------------------------------------------------------------
                                        Date \1\              Type              Date \1\              Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Philadelphia-Wilmin-Atlantic Ci,
 PA-NJ-MD-DE:
    Cecil County.................  ..................  Nonattainment.....  ..................  Subpart 2/
                                                                                                Moderate.\4\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ Effective April 15, 2008.
\3\ November 22, 2004.
\4\ Attainment date extended to June 15, 2011.

* * * * *

0
4. In Sec.  81.339, the table entitled ``Pennsylvania--Ozone (8-Hour 
Standard)'' is amended by revising the entry for Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE (Bucks County, Chester County, 
Delaware County, Montgomery County, Philadelphia County) to read as 
follows:


Sec.  81.339  Pennsylvania.

* * * * *

[[Page 3843]]



                                               Pennsylvania--Ozone
                                                [8-Hour standard]
----------------------------------------------------------------------------------------------------------------
                                               Designation \a\                    Category/classification
         Designated area          ------------------------------------------------------------------------------
                                        Date \1\              Type              Date \1\              Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Philadelphia-Wilmington-Atlantic
 City, PA-NJ-MD-DE:
    Bucks County.................  ..................  Nonattainment.....  ..................  Subpart 2/
                                                                                                Moderate.\3\
    Chester County...............  ..................  Nonattainment.....  ..................  Subpart 2/
                                                                                                Moderate.\3\
    Delaware County..............  ..................  Nonattainment.....  ..................  Subpart 2/
                                                                                                Moderate.\3\
    Montgomery County............  ..................  Nonattainment.....  ..................  Subpart 2/
                                                                                                Moderate.\3\
    Philadelphia County..........  ..................  Nonattainment.....  ..................  Subpart 2/
                                                                                                Moderate.\3\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ November 22, 2004.
\3\ Attainment date extended to June 15, 2011.

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[FR Doc. 2011-1262 Filed 1-20-11; 8:45 am]
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