[Federal Register Volume 77, Number 58 (Monday, March 26, 2012)]
[Rules and Regulations]
[Pages 17341-17344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7196]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0713; FRL-9652-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware, Maryland, New Jersey, and Pennsylvania; Determinations of 
Attainment of the 1997 8-Hour Ozone Standard for the Philadelphia-
Wilmington-Atlantic City Moderate Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is making two determinations regarding the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE 8-hour ozone moderate 
nonattainment area (the Philadelphia Area). First, EPA is determining 
that the Philadelphia Area has attained the 1997 8-hour ozone National 
Ambient Air Quality Standard (NAAQS). This determination is based upon 
complete, quality assured, and certified ambient air monitoring data 
that show the area has monitored attainment of the 1997 8-hour ozone 
NAAQS for the 2008-2010 monitoring period. In accordance with EPA's 
applicable ozone implementation rule, this clean data determination 
suspends the requirement for the Philadelphia Area to submit an 
attainment demonstration, reasonably available control measures (RACM), 
a reasonable further progress (RFP) plan and contingency measures 
related to attainment of the 1997 8-hours ozone NAAQS. These 
requirements shall be suspended for so long as the area continues to 
attain the 1997 8-hour ozone NAAQS. Second, EPA is determining that the 
Philadelphia Area has attained the 1997 8-hour ozone NAAQS by its 
attainment date of June 15, 2011. These actions are being taken under 
the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on April 25, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2011-0713. All documents in the docket are listed in 
the 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 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.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning EPA's 
proposed action related to Delaware, Maryland or Pennsylvania, please 
contact Maria A. Pino (215) 814-2181, or by email at 
[email protected]. If you have questions concerning EPA's proposed 
action related to New Jersey, please contact Paul Truchan (212) 637-
3711, or by email at [email protected].

SUPPLEMENTARY INFORMATION: The following outline is provided to aid in 
locating information in this action.

I. Background
II. Summary of Actions
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    EPA published a notice of proposed rulemaking (NPR) for the States 
of Delaware, Maryland, and New Jersey

[[Page 17342]]

and the Commonwealth of Pennsylvania (the States) on December 9, 2011 
(76 FR 76929). Pursuant to section 181(b)(2)(A) \1\ of the CAA, the 
December 9, 2011 NPR proposed to determine that the Philadelphia Area 
attained the 1997 8-hour ozone NAAQS by its attainment date, June 15, 
2011. This proposed determination was based upon complete, quality 
assured, and certified ambient air monitoring data for the 2008-2010 
monitoring period that show the Philadelphia Area has monitored 
attainment of the 1997 8-hour ozone NAAQS during this monitoring 
period. Preliminary ambient air monitoring data for the 2009-2011 
monitoring period is consistent with continued attainment.
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    \1\ The NPR cited CAA sections 181(b)(2)(A) and 179(c) as giving 
EPA the statutory authority for determining whether the Philadelphia 
Area attained the 1997 8-hour ozone NAAQS by its attainment date. In 
this final notice, EPA is correcting that statement to clarify that 
here the appropriate statutory authority derives from section 
181(b)(2)(A).
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    The December 9, 2011 NPR also proposed to make a clean data 
determination that the Philadelphia Area has attained the 1997 8-hour 
ozone NAAQS. This proposed clean data determination was based upon 
complete, quality assured, and certified ambient air monitoring data 
that show the Philadelphia Area has monitored attainment of the 1997 8-
hour ozone NAAQS for the 2008-2010 monitoring period. As a result of 
this determination, the requirement for the Philadelphia Area to submit 
an attainment demonstration, a RACM analysis, an RFP plan, contingency 
measures, and other planning requirements related to attainment of the 
1997 8-hours ozone NAAQS shall be suspended for so long as the area 
continues to attain the 1997 8-hour ozone NAAQS.
    In that same December 9, 2011 rulemaking notice, EPA withdrew the 
May 8, 2009 proposed disapprovals of the attainment demonstrations for 
the Philadelphia Area, based on the ambient air quality monitoring data 
demonstrating attainment. The Docket ID Numbers for the proposed 
disapprovals are EPA-R03-OAR-2008-0930, EPA-R03-OAR-2008-0929, EPA-R02-
OAR-2008-0497, and EPA-R03-OAR-2008-0928, respectively. See 74 FR 
21599, 74 FR 21588, 74 FR 21578, and 74 FR 21604, respectively.

II. Summary of Actions

A. Determination of Attainment by the Attainment Date

    Moderate areas are required to attain the 1997 8-hour ozone NAAQS 
by no later than six years after designation, or June 15, 2010. See 40 
CFR 51.903. However, the Philadelphia Area qualified for a one-year 
extension of its attainment date, based on the complete, certified 
ambient air quality data for the 2009 ozone season. On January 21, 
2011, EPA approved a one-year extension of the Philadelphia Area's 
attainment date, from June 15, 2010 to June 15, 2011. See 76 FR 3838 
and 76 FR 3840.
    EPA is making a determination that the Philadelphia Area has 
attained the 1997 ozone NAAQS by its applicable attainment date of June 
15, 2011. As a result of this action, EPA has met its requirement 
pursuant to CAA section 181(b)(2)(A) to determine, based on the area's 
air quality as of the attainment date, whether the area attained the 
standard by that date. The effect of this final determination of 
attainment by the area's attainment date is to discharge EPA's 
obligation under CAA section 181(b)(2)(A) \2\ to establish that, in 
accordance with CAA section 181(b)(2)(A), the area will not be 
reclassified for failure to attain by its applicable attainment date. 
This determination of attainment is not equivalent to a redesignation. 
The States must still meet the statutory requirements for redesignation 
in order to be redesignated to attainment.
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    \2\ In the NPR, EPA stated that its obligations to determine if 
an area attained the 1997 8-hour NAAQS by its attainment was found 
under CAA sections 181(b)(2)(A) and 179. EPA notes that for an area 
such as Philadelphia, which is designated moderate nonattainment for 
the 1997 8-hour ozone standard, the proper citation is CAA section 
181(b)(2)(A).
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B. Clean Data Determination

    EPA is making a clean data determination, finding that the 
Philadelphia Area is attaining the 1997 8-hour ozone NAAQS. Under the 
provisions of EPA's ozone implementation rule (See 40 CFR 51.918), this 
clean data determination suspends the CAA requirement for the 
Philadelphia Area to submit certain planning requirements related to 
attainment of the 1997 8-hour ozone NAAQS for so long as the area 
continues to attain the 1997 8-hour ozone NAAQS. This clean data 
determination is not equivalent to a redesignation. The States must 
still meet the statutory requirements for redesignation in order to be 
redesignated to attainment.
    The clean data determination suspends the requirements to submit an 
attainment demonstration, RACM, RFP, contingency measures, and other 
planning elements related to attainment of the 1997 8-hour ozone NAAQS. 
This suspension continues until such time, if any, that EPA (i) 
redesignates the area to attainment at which time those requirements no 
longer apply, or (ii) subsequently determines that the area has 
violated the 1997 8-hour ozone NAAQS. This clean data determination is 
separate from, and does not influence or otherwise affect, any future 
designation determination or requirements for the area based on any new 
or revised ozone NAAQS. This clean data determination remains in effect 
regardless of whether EPA designates the Philadelphia Area as a 
nonattainment area for purposes of any new or revised ozone NAAQS.
    Although these requirements are suspended, EPA is not precluded 
from acting upon these elements. The States of Delaware and Maryland, 
and the Commonwealth of Pennsylvania submitted these SIP elements for 
their portions of the Philadelphia Area to EPA for review and approval 
in June 2007. The State of New Jersey submitted these SIP elements for 
its portion of the Philadelphia Area to EPA for review and approval in 
October 2007. EPA approved each state's RFP plans, RFP contingency 
measures, and RACM analyses for the Philadelphia Area in separate 
rulemaking actions. Therefore, these requirements have been fulfilled. 
EPA approved the RFP plans, RFP contingency measures, and RACM analyses 
from Delaware, Maryland, New Jersey, and Pennsylvania on April 8, 2010, 
June 11, 2010, May 15, 2009, and February 7, 2011, respectively. See 75 
FR 17863, 75 FR 33172, 74 FR 22837, and 76 FR 6559.

C. Ambient Air Quality Monitoring Data

    Complete, quality assured, certified 8-hour ozone air quality 
monitoring data for 2008 through 2010 show that the Philadelphia Area 
has attained the 1997 8-hour ozone NAAQS. Additional information on air 
quality data for the Philadelphia Area can be found in the Technical 
Support Document (TSD) prepared for this action. The TSD can be viewed 
at http://www.regulations.gov. The rationale for EPA's proposed action 
is explained in the NPR and will not be restated here. No public 
comments were received on the NPR.

III. Final Action

    EPA is making two determinations regarding the Philadelphia Area. 
First, EPA is making a clean data determination, finding that the 
Philadelphia Area has attained the 1997 8-hour ozone NAAQS. This clean 
data determination is based upon complete, quality assured, and 
certified ambient air monitoring data that show the area has monitored 
attainment of the 1997 8-

[[Page 17343]]

hour ozone NAAQS for the 2008-2010 monitoring period. This clean data 
determination suspends the requirements for the Philadelphia Area to 
submit an attainment demonstration and associated RACM, RFP plan, 
contingency measures, and any other planning requirements related to 
attainment of the 1997 8-hours ozone NAAQS for so long as the area 
continues to attain the 1997 8-hour ozone NAAQS. Second, pursuant to 
section 181(b)(2)(A) of the CAA, EPA is making a determination that the 
Philadelphia Area has attained the 1997 8-hour ozone NAAQS by its 
attainment date, June 15, 2011.

IV. 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. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's 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 Order 
12866 (58 FR 51735, October 4, 1993);
     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 under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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 May 25, 2012. 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 determination that the Philadelphia Area has attained the 
1997 8-hour ozone NAAQS may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements.

    Dated: February 22, 2012.
W.C. Early,
Acting, Regional Administrator, Region III.
    Dated: March 6, 2012.
Judith A. Enck,
Regional Administrator, Region II.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart I--Delaware

0
2. Section 52.425 is added to read as follows:


Sec.  52.425  Determinations of attainment.

    Based upon EPA's review of the air quality data for the 3-year 
period 2008 to 2010, EPA determined that Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD-DE 8-hour ozone moderate nonattainment area 
(the Philadelphia Area) attained the 1997 8-hour ozone National Ambient 
Air Quality Standard (NAAQS) by the applicable attainment date of June 
15, 2011. Therefore, EPA has met the requirement pursuant to CAA 
section 181(b)(2)(A) to determine, based on the area's air quality as 
of the attainment date, whether the area attained the standard. EPA 
also determined that the Philadelphia Area nonattainment area will not 
be reclassified for failure to attain by its applicable attainment date 
under section 181(b)(2)(A).

0
3. Section 52.426 is amended by adding paragraph (i) to read as 
follows:


Sec.  52.426  Control strategy plans for attainment and rate-of-
progress: ozone.

* * * * *
    (i) Determination of attainment. EPA has determined, as of March 
26, 2012, that based on 2008 to 2010 ambient air quality data, 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 8-hour ozone 
moderate nonattainment area has attained the 1997 8-hour ozone NAAQS. 
This determination, in accordance with 40 CFR 51.918, suspends the 
requirements for this area to submit an attainment demonstration, 
associated reasonably available control measures, a reasonable further 
progress plan, contingency measures, and other planning SIPs related to 
attainment of the standard for as long as this area continues to meet 
the 1997 annual 8-hour ozone NAAQS.

Subpart V--Maryland

0
4. Section 52.1076 is amended by adding paragraph (x) to read as 
follows:

[[Page 17344]]

Sec.  52.1076  Control strategy plans for attainment and rate-of-
progress: ozone.

* * * * *
    (x) Determination of attainment. EPA has determined, as of March 
26, 2012, that based on 2008 to 2010 ambient air quality data, 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 8-hour ozone 
moderate nonattainment area has attained the 1997 8-hour ozone NAAQS. 
This determination, in accordance with 40 CFR 51.918, suspends the 
requirements for this area to submit an attainment demonstration, 
associated reasonably available control measures, a reasonable further 
progress plan, contingency measures, and other planning SIPs related to 
attainment of the standard for as long as this area continues to meet 
the 1997 annual 8-hour ozone NAAQS.

0
5. Section 52.1082 is amended by adding paragraph (d) to read as 
follows:


Sec.  52.1082  Determinations of attainment.

* * * * *
    (d) Based upon EPA's review of the air quality data for the 3-year 
period 2008 to 2010, EPA determined that Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD-DE 8-hour ozone moderate nonattainment area 
(the Philadelphia Area) attained the 1997 8-hour ozone National Ambient 
Air Quality Standard (NAAQS) by the applicable attainment date of June 
15, 2011. Therefore, EPA has met the requirement pursuant to CAA 
section 181(b)(2)(A) to determine, based on the area's air quality as 
of the attainment date, whether the area attained the standard. EPA 
also determined that the Philadelphia Area nonattainment area will not 
be reclassified for failure to attain by its applicable attainment date 
under section 181(b)(2)(A).

Subpart FF--New Jersey

0
6. Section 52.1576 is added to read as follows:


Sec.  52.1576  Determinations of attainment.

    Based upon EPA's review of the air quality data for the 3-year 
period 2008 to 2010, EPA determined that Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD-DE 8-hour ozone moderate nonattainment area 
(the Philadelphia Area) attained the 1997 8-hour ozone National Ambient 
Air Quality Standard (NAAQS) by the applicable attainment date of June 
15, 2011. Therefore, EPA has met the requirement pursuant to CAA 
section 181(b)(2)(A) to determine, based on the area's air quality as 
of the attainment date, whether the area attained the standard. EPA 
also determined that the Philadelphia Area nonattainment area will not 
be reclassified for failure to attain by its applicable attainment date 
under section 181(b)(2)(A).

0
7. Section 52.1582 is amended by adding paragraph (n) to read as 
follows:


Sec.  52.1582  Control strategy and regulations: Ozone.

* * * * *
    (n) Attainment determination. EPA has determined, as of March 26, 
2012, that based on 2008 to 2010 ambient air quality data, 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 8-hour ozone 
moderate nonattainment area has attained the 1997 8-hour ozone NAAQS. 
This determination, in accordance with 40 CFR 51.918, suspends the 
requirements for this area to submit an attainment demonstration, 
associated reasonably available control measures, a reasonable further 
progress plan, contingency measures, and other planning SIPs related to 
attainment of the standard for as long as this area continues to meet 
the 1997 annual 8-hour ozone NAAQS.

Subpart NN--Pennsylvania

0
8. Section 52.2037 is amended by adding paragraph (r) to read as 
follows:


Sec.  52.2037  Control strategy plans for attainment and rate-of-
progress: Ozone.

* * * * *
    (r) Determination of attainment. EPA has determined, as of March 
26, 2012, that based on 2008 to 2010 ambient air quality data, 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 8-hour ozone 
moderate nonattainment area has attained the 1997 8-hour ozone NAAQS. 
This determination, in accordance with 40 CFR 51.918, suspends the 
requirements for this area to submit an attainment demonstration, 
associated reasonably available control measures, a reasonable further 
progress plan, contingency measures, and other planning SIPs related to 
attainment of the standard for as long as this area continues to meet 
the 1997 annual 8-hour ozone NAAQS.

0
9. Section 52.2056 is amended by adding paragraph (f) to read as 
follows:


Sec.  52.2056  Determinations of attainment.

* * * * *
    (f) Based upon EPA's review of the air quality data for the 3-year 
period 2008 to 2010, EPA determined that Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD-DE 8-hour ozone moderate nonattainment area 
(the Philadelphia Area) attained the 1997 8-hour ozone National Ambient 
Air Quality Standard (NAAQS) by the applicable attainment date of June 
15, 2011. Therefore, EPA has met the requirement pursuant to CAA 
section 181(b)(2)(A) to determine, based on the area's air quality as 
of the attainment date, whether the area attained the standard. EPA 
also determined that the Philadelphia Area nonattainment area will not 
be reclassified for failure to attain by its applicable attainment date 
under section 181(b)(2)(A).
[FR Doc. 2012-7196 Filed 3-23-12; 8:45 am]
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