[Federal Register Volume 78, Number 4 (Monday, January 7, 2013)]
[Rules and Regulations]
[Pages 882-885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31565]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0371; FRL-9765-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware, New Jersey, and Pennsylvania; Determination of Attainment of 
the 2006 24-Hour Fine Particulate Matter Standard for the Philadelphia-
Wilmington, PA-NJ-DE Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is making a determination of attainment regarding the 
Philadelphia-Wilmington, PA-NJ-DE fine particulate matter 
(PM2.5) nonattainment area (hereafter referred to as ``the 
Philadelphia Area'' or ``the Area''). EPA has determined that the 
Philadelphia Area has attained the 2006 24-hour PM2.5 
National Ambient Air Quality Standard (NAAQS), based upon quality-
assured, quality-controlled and certified ambient air monitoring data 
for the 2008-2010 and 2009-2011 periods. Preliminary data available for 
2012 are consistent with continued attainment of the Philadelphia Area. 
This determination of attainment suspends the requirements for the 
respective state portions of the Philadelphia Area to submit an 
attainment demonstration and associated reasonably available control 
measures (RACM), a reasonable further progress (RFP) plan, contingency 
measures, and other planning State Implementation Plan (SIP) revisions 
related to the attainment of the standard for so long as the Area 
continues to attain the 2006 24-hour PM2.5 NAAQS. This 
action is being taken under the Clean Air Act (CAA). This action does 
not constitute a redesignation to attainment, and the Philadelphia Area 
will remain designated nonattainment for the 2006 24-hour 
PM2.5 NAAQS until such time as EPA determines that the 
Philadelphia Area, or portion thereof, meets the CAA requirements for 
redesignation to attainment for the standard, including an approved 
maintenance plan.

DATES: This final rule is effective on January 7, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2012-0371. 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

[[Page 883]]

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: For inquiries related to the State of 
Delaware or the Commonwealth of Pennsylvania, please contact Emlyn 
V[eacute]lez-Rosa, (215) 814-2038, or by email at [email protected]. For inquiries related to the State of New Jersey, 
please contact Gavin Lau, (212) 637-3708, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION 
section is arranged as follows:

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

I. Background

    On September 21, 2006, EPA retained the 1997 annual 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\) 
(hereby ``the 2006 annual PM2.5 NAAQS'') based on a 3-year 
average of annual mean PM2.5 concentrations, and promulgated 
a new 24-hour standard of 35 [mu]g/m\3\ based on a 3-year average of 
the 98th percentile of 24-hour concentrations (71 FR 61144, October 17, 
2006). The revised 2006 24-hour PM2.5 standard (hereafter 
``the 2006 24-hour PM2.5 NAAQS'') became effective on 
December 18, 2006. See 40 CFR 50.13.
    Many petitioners challenged aspects of EPA's 2006 revisions to the 
PM2.5 NAAQS. See American Farm Bureau Federation and 
National Pork Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 
2009). As a result of this challenge, the U.S. Court of Appeals for the 
District of Columbia Circuit remanded the 2006 annual PM2.5 
NAAQS to EPA for further proceedings. The 2006 24-hour primary and 
secondary PM2.5 NAAQS were not affected by the remand and 
remain in effect.
    On November 13, 2009, EPA published designations for the 2006 24-
hour PM2.5 NAAQS (74 FR 58688), which included the 
Philadelphia Area as a nonattainment area. Designations became 
effective on December 14, 2009. The Philadelphia Area is composed of 
New Castle County in Delaware; Burlington, Camden, and Gloucester 
Counties in New Jersey; and Bucks, Chester, Delaware, Montgomery, and 
Philadelphia Counties in Pennsylvania. See 40 CFR 81.339 
(Pennsylvania), 40 CFR 81.331 (New Jersey), and 40 CFR 81.308 
(Delaware).
    On October 2, 2012 (77 FR 60089), EPA published a notice of 
proposed rulemaking (NPR) for the States of Delaware and New Jersey and 
the Commonwealth of Pennsylvania, proposing to determine that the 
Philadelphia Area has attained the 2006 24-hour PM2.5 NAAQS, 
based on the quality-controlled, quality-assured, and certified data 
from 2008-2010 and 2009-2011 monitoring periods. Preliminary data 
available for 2012 are consistent with continued attainment of the 
Philadelphia Area.
    EPA's determination is being made in accordance with its 
longstanding interpretation under the Clean Data Policy, and with 
previously issued rules and determinations of attainment. A brief 
description of the Clean Data Policy with respect to the 2006 24-hour 
PM2.5 NAAQS is set forth below. In addition, the docket for 
this rulemaking includes documentation providing more detail regarding 
the application of EPA's Clean Data Policy to determinations of 
attainment for the 2006 24-hour PM2.5 NAAQS.
    In April 2007, EPA issued its PM2.5 Implementation Rule 
for the 1997 annual PM2.5 NAAQS. 72 FR 20586 (April 25, 
2007). In March 2012, EPA published implementation guidance for the 
2006 24-hour PM2.5 NAAQS. See Memorandum from Stephen D. 
Page, Director, Office of Air Quality Planning and Standards, 
``Implementation Guidance for the 2006 24-Hour Final Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS)'' 
(March 2, 2012). In that guidance, EPA stated its view ``that the 
overall framework and policy approach of the 2007 PM2.5 
Implementation Rule continues to provide effective and appropriate 
guidance on the EPA's interpretation of the general statutory 
requirements that states should address in their SIPs. In general, the 
EPA believes that the interpretations of the statute in the framework 
of the 2007 PM2.5 Implementation Rule are relevant to the 
statutory requirements for the 2006 24-hour PM2.5 NAAQS * * 
* .'' Id. at page 1.
    In keeping with the principles set forth in the guidance, and with 
respect to the effect of a determination of attainment for the 2006 24-
hour PM2.5 NAAQS, EPA is applying the same interpretation 
with respect to the implications of clean data determinations that it 
set forth in the preamble to the 1997 annual PM2.5 NAAQS and 
in the regulation that embodies this interpretation. 40 CFR 
51.1004(c).\1\ EPA has long applied this interpretation in regulations 
and individual rulemakings for the 1-hour ozone and 1997 8-hour ozone 
NAAQS, the coarse particulate matter (PM10) NAAQS, and the 
lead NAAQS.
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    \1\ While EPA recognizes that 40 CFR 51.1004(c) does not itself 
expressly apply to the 2006 24-hour PM2.5 NAAQS, the 
statutory interpretation that it embodies is identical and is 
applicable to both the 1997 annual and the 2006 24-hour 
PM2.5 NAAQS.
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    In 1995, based on the interpretation of CAA sections 171 and 172, 
and section 182 in the General Preamble, EPA set forth what has become 
known as its ``Clean Data Policy'' for the 1-hour ozone NAAQS. See 
Memorandum from John S. Seitz, Director, Office of Air Quality Planning 
and Standards, ``Reasonable Further Progress, Attainment Demonstration, 
and Related Requirements for Ozone Nonattainment Areas Meeting the 
Ozone National Ambient Air Quality Standard'' (May 10, 1995). In 2004, 
EPA indicated its intention to extend the Clean Data Policy to the 
PM2.5 NAAQS. See Memorandum from Steve Page, Director, EPA 
Office of Air Quality Planning and Standards, ``Clean Data Policy for 
the Fine Particle National Ambient Air Quality Standards'' (December 
14, 2004).
    The Clean Data Policy represents EPA's interpretation that certain 
requirements of subpart 1 of part D of the CAA are by their terms not 
applicable to areas that are currently attaining the NAAQS.\2\ It is 
important to note that the obligation of a state with respect to an 
area which attains the 2006 24-hour PM2.5 NAAQS based on 
three years of data, to submit an attainment demonstration and related 
planning submissions is suspended only for so long as the area 
continues to attain the standard. If EPA subsequently determines, after 
notice-and-comment rulemaking, that the area has violated the NAAQS, 
the requirements for the state to submit a SIP to meet the previously 
suspended requirements would be reinstated. It is likewise important to 
note that the area remains designated nonattainment pending a further 
redesignation action. The docket

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for this rulemaking action includes documentation providing additional 
information regarding the basis for use of EPA's Clean Data Policy for 
the 2006 24-hour PM2.5 NAAQS.
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    \2\ This discussion refers to subpart 1 of the CAA because 
subpart 1 contains the requirements relating to attainment of the 
2006 24-hour PM2.5 NAAQS.
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II. Summary of Action

    In this rulemaking action, EPA is finalizing the determination of 
attainment of the 2006 24-hour PM2.5 NAAQS for the 
Philadelphia Area, based on the quality-controlled, quality-assured, 
and certified data from 2008-2010 and 2009-2011 monitoring periods and 
preliminary data for 2012. EPA previously determined that the 
PM2.5 monitoring network for the Philadelphia Area is 
adequate. EPA found that the number of monitors in the Area meets the 
minimum regulatory requirements given in 40 CFR part 58, appendix D, 
section 4.7, and that the monitoring network in place is in accordance 
with the States' most recent annual monitoring network plans approved 
by EPA, as required by 40 CFR 58.10.
    EPA's review of quality-assured, quality-controlled, certified 
ambient air monitoring data collected in the Philadelphia Area during 
2008-2010 and 2009-2011 shows that the Area has attained the 2006 24-
hour PM2.5 NAAQS. Additionally, preliminary PM2.5 
data available for 2012 is consistent with continued attainment of the 
2006 24-hour PM2.5 NAAQS in the Philadelphia Area.
    No public comments were submitted in response to the NPR, published 
on October 2, 2012 (77 FR 60089). EPA's evaluation of air quality data 
and additional information regarding the monitoring network and air 
quality data used in this determination are available in the NPR and in 
the Technical Support Document for the NPR and thus are not restated 
here. Relevant support documents for this action are available online 
at www.regulations.gov, Docket number EPA-R03-OAR-2012-0371.

 III. Final Action

    EPA is making a determination that the Philadelphia Area has 
attained the 2006 24-hour PM2.5 NAAQS, based upon quality-
controlled, quality-assured and certified ambient air monitoring data 
for the 2008-2010 and 2009-2011 periods. Preliminary data available for 
2012 are consistent with continued attainment. This final action, in 
accordance with the Clean Data Policy (which is reflected in 40 CFR 
51.1004(c)), suspends the requirements for the Philadelphia Area to 
submit an attainment demonstration and associated RACM, RFP plan, 
contingency measures, and other planning SIP revisions related to the 
attainment of the standard, for so long as the Area continues to attain 
the 2006 24-hour PM2.5 NAAQS. This determination is not 
equivalent to the redesignation of the Philadelphia Area to attainment 
for the 2006 24-hour PM2.5 NAAQS. If EPA subsequently 
determines, after notice-and-comment rulemaking in the Federal 
Register, that the Area has violated the 2006 24-hour PM2.5 
NAAQS, the basis for the suspension of the specific requirements would 
no longer exist for the Philadelphia Area, and the Area would 
thereafter have to address the applicable requirements for the 2006 24-
hour PM2.5 NAAQS.
    Finalizing this determination does not constitute a redesignation 
of the Philadelphia Area to attainment of the 2006 24-hour 
PM2.5 NAAQS under section 107(d)(3) of the CAA, nor does it 
involve approving a maintenance plan for the Philadelphia Area as 
required under section 175A of the CAA. This determination does not 
address other requirements for redesignation under the CAA, including 
that the attainment be due to permanent and enforceable emission 
reductions.\3\ The designation status of the Philadelphia Area will 
remain nonattainment for the 2006 24-hour PM2.5 NAAQS until 
such time as EPA determines that the Area meets the CAA requirements 
for redesignation to attainment and takes action to redesignate the 
Philadelphia Area, or portion thereof.
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    \3\ The monitoring data from the 2008-2010 and 2009-2011 
monitoring periods that are relied on in this notice may be impacted 
by reductions associated with the Clean Air Interstate Rule (CAIR), 
which was remanded to EPA in 2008. See North Carolina v. EPA, 531 
F.3d 896, as modified on reh'g, 550 F.3d 1176 (D.C. Cir. 2008). 
Nonetheless, because this determination addresses only whether the 
monitoring data shows attainment, at this time EPA need not address 
whether such attainment was due to the remanded CAIR.
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    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause 
for this action to become effective immediately upon publication. A 
delayed effective date is unnecessary due to the nature of a 
determination of attainment, which suspends the obligation to submit 
certain attainment-related CAA planning requirements that would 
otherwise apply. The immediate effective date for this action is 
authorized under both 5 U.S.C. 553(d)(1), which provides that 
rulemaking actions may become effective less than 30 days after 
publication if the rule ``grants or recognizes an exemption or relieves 
a restriction,'' and section 553(d)(3), which allows an effective date 
less than 30 days after publication ``as otherwise provided by the 
agency for good cause found and published with the rule.'' The purpose 
of the 30-day waiting period prescribed in section 553(d) is to give 
affected parties a reasonable time to adjust their behavior and prepare 
before the final rule takes effect. Today's rule, however, does not 
create any new regulatory requirements such that affected parties would 
need time to prepare before the rule takes effect. Rather, today's rule 
relieves the affected states of the obligation to submit certain 
attainment-related planning requirements for this PM2.5 
nonattainment area. For these reasons, EPA finds good cause under 5 
U.S.C. 553(d) for this action to become effective on the date of 
publication of this notice.

IV. Statutory and Executive Order Reviews

A. General Requirements

    This action, which makes a determination of attainment for the 
Philadelphia Area based on air quality, results in the suspension of 
certain Federal requirements and does not impose any 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

[[Page 885]]

     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 determination of attainment of the Philadelphia 
Area with respect to the 2006 24-hour PM2.5 NAAQS does not 
have tribal implications as specified by Executive Order 13175 (65 FR 
67249, November 9, 2000), because the determination 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 March 8, 2013. 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 action, in which EPA has determined that the Philadelphia 
Area has attained the 2006 24-hour PM2.5 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, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: December 10, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
    Dated: December 13, 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 52.427 is amended by designating the existing paragraph as 
(a) and adding paragraph (b) to read as follows:


Sec.  52.427  Control strategy: Particulate matter.

* * * * *
    (b) Determination of Attainment. EPA has also determined, as of 
January 7, 2013, that based on 2008 to 2010 and 2009 to 2011 ambient 
air quality data, the Philadelphia-Wilmington, PA-NJ-DE fine 
particulate matter (PM2.5) nonattainment area has attained 
the 2006 24-hour PM2.5 national ambient air quality 
standards (NAAQS). This determination suspends the requirements for the 
State of DE to submit, for the Philadelphia-Wilmington, PA-NJ-DE 
PM2.5 nonattainment area, 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 2006 24-hour PM2.5 NAAQS.

Subpart FF--New Jersey

0
3. Section 52.1602 is amended by adding paragraph (e) to read as 
follows:


Sec.  52.1602  Control strategy and regulations: PM2.5.

* * * * *
    (e) Determination of Attainment. EPA has determined, as of January 
7, 2013, that based on 2008 to 2010 and 2009 to 2011 ambient air 
quality data, the Philadelphia-Wilmington, PA-NJ-DE fine particulate 
matter (PM2.5) nonattainment area has attained the 2006 24-
hour PM2.5 national ambient air quality standards (NAAQS). 
This determination suspends the requirements for the Philadelphia-
Wilmington, PA-NJ-DE PM2.5 nonattainment 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 2006 24-hour PM2.5 NAAQS.

Subpart NN--Pennsylvania

0
4. Section 52.2059 is amended by adding paragraph (h) to read as 
follows:


Sec.  52.2059  Control strategy: Particulate matter.

* * * * *
    (h) Determination of Attainment. EPA has determined, as of January 
7, 2013, that based on 2008 to 2010 and 2009 to 2011 ambient air 
quality data, the Philadelphia-Wilmington, PA-NJ-DE fine particulate 
matter (PM2.5) nonattainment area has attained the 2006 24-
hour PM2.5 national ambient air quality standards (NAAQS). 
This determination suspends the requirements for the Commonwealth of 
Pennsylvania to submit, for the Philadelphia-Wilmington, PA-NJ-DE 
PM2.5 area, 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 2006 24-hour PM2.5 NAAQS.

[FR Doc. 2012-31565 Filed 1-4-13; 8:45 am]
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