[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Rules and Regulations]
[Pages 32117-32120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10728]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2021-0307; FRL-10965-02-R3]
Determination of Attainment by the Attainment Date for the 2012
Annual Fine Particulate Matter Standard; Pennsylvania; Allegheny County
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is determining that
the Allegheny County, Pennsylvania, fine particulate matter
(PM2.5) nonattainment area (``Allegheny County
PM2.5 nonattainment area,'' ``the nonattainment area,'' or
simply ``the area'') attained the 2012 annual PM2.5 national
ambient air quality standards (NAAQS or ``standard'') by its December
31, 2021, ``Moderate'' area attainment date. This determination, as
required under Clean Air Act (CAA) sections 179 and 188, is based upon
quality-assured, quality-controlled, and certified ambient air
monitoring data for the 2019-2021 period available in EPA's Air Quality
System (AQS) monitoring data repository. The area remains nonattainment
for the 2012 annual PM2.5 NAAQS until the area is
redesignated to attainment.
DATES: This final rule is effective on June 20, 2023.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2021-0307. All documents in the docket are listed on
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., 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 through
www.regulations.gov, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Brian Rehn, Planning & Implementation
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection
Agency, Region III, 1600 John F. Kennedy Boulevard, Philadelphia,
Pennsylvania 19103. The telephone number is (215) 814-2176. Mr. Rehn
can also be reached via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Summary of the Proposed Action
Following promulgation of a new or revised NAAQS, EPA is required
under CAA section 107(d) to designate areas as attaining or not
attaining the NAAQS. Those nonattainment areas are also classified by
degree of nonattainment. Under subpart 4 of part D of title I of the
CAA, EPA designates areas found to be violating or contributing to
violation of the PM2.5 NAAQS as nonattainment and classifies
them initially as Moderate nonattainment. Effective April 15, 2015, EPA
designated Allegheny County, Pennsylvania, as Moderate nonattainment
for the 2012 annual PM2.5 NAAQS based on ambient monitoring
data that showed the area was above the 12.0 micrograms per cubic meter
([micro]g/m\3\) primary standard for the 2011-2013 monitoring period,
based on the area's design value.\1\ A design value (DV) is the 3-year
average NAAQS metric that is compared to the NAAQS level to determine
when a monitoring site is or is not meeting the NAAQS. The specific
methodologies for calculating whether the annual PM2.5 NAAQS
is met at each eligible monitoring site in an area are found in the
Code of Federal Regulations (CFR), at 40 CFR part 50, appendix N,
section 4.1.
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\1\ 80 FR 2206 (January 15, 2015).
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Sections 179(c)(1) and 188(b)(2) of the CAA require EPA to
determine whether a PM2.5 nonattainment area attained by the
applicable attainment date, ``based on the area's air quality as of the
attainment date.'' Generally, this determination of whether an area's
air quality meets the PM2.5 NAAQS by the attainment date is
based upon the most recent three years of complete, certified data
gathered at eligible monitoring sites in accordance with 40 CFR 58.9.
Section 188(c)(1) of the CAA requires that states with areas designated
as Moderate PM2.5 nonattainment areas provide for attainment
in the area as expeditiously as practicable, but no later than the end
[[Page 32118]]
of the sixth calendar year after designation. For areas initially
designated under the 2012 annual PM2.5 NAAQS, this
attainment date was December 31, 2021.\2\
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\2\ 40 CFR 51.1004(a)(1).
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On February 8, 2023 (88 FR 8249), EPA published a proposed
determination that the Allegheny County, Pennsylvania PM2.5
nonattainment area attained the 2012 annual PM2.5 NAAQS by
its December 31, 2021, ``Moderate'' area attainment date, for the
reasons set forth in that proposed rulemaking. EPA's determination is
based upon quality assured, quality controlled, and certified ambient
air monitoring data for the 2019-2021 period preceding the December
2021 attainment date. That data is available in EPA's AQS ambient air
quality monitoring database. We explained in our proposed determination
that, if finalized, the action would fulfill EPA's statutory obligation
to determine whether the Allegheny County PM2.5
nonattainment area attained the NAAQS by the Moderate attainment date.
Further explanation of the specific details of and rationale for our
determination that the nonattainment area attained the 2012 annual
PM2.5 NAAQS by the statutory attainment date are explained
in the proposed rule and will not be restated here.
EPA received one public comment letter in response to the February
8, 2023, notice of proposed rulemaking (NPRM) that was submitted
jointly by three environmental advocacy organizations (The Clean Air
Council, The Environmental Integrity Project, and Citizens for
Pennsylvania's Future). A summary of the comments received is set forth
below. The full text of the comments is available in the docket for
this action.
II. EPA's Response to Comments Received
Comment: The proposed attainment determination for the Allegheny
County PM2.5 nonattainment area is a step in the EPA's
process of evaluating whether to approve a subsequent state request for
redesignation of the nonattainment area to attainment, per 42 U.S.C.
7407(d)(3)(E). If EPA finalizes this proposed determination of
attainment by the attainment date, the commenters' recommend that EPA
not take action on the Commonwealth's November 29, 2022 request under
CAA section 107(d)(3)(E) to redesignate the Allegheny County
nonattainment area to attainment for the 2012 annual PM2.5
NAAQS until EPA finishes its reconsideration of the PM2.5
NAAQS set by the 2020 final decision on the primary (i.e., health-
based) and secondary (i.e., welfare-based) PM NAAQS.\3\ EPA published
its proposed reconsideration of the December 2020 PM2.5
NAAQS on January 27, 2023. The reconsideration proposed revising the
primary annual PM2.5 standard by lowering the level from
12.0 [micro]g/m\3\ to within the range of 9.0 to 10.0 [micro]g/m\3\,
while taking comment on alternative annual standard levels as low as
8.0 [micro]g/m\3\ and up to 11.0 [micro]g/m\3\.\4\ The commenters state
that recent ambient air quality monitoring data obtained since the
December 31, 2021, attainment date would likely require EPA to
designate the area as nonattainment under the proposed revised annual
PM2.5 NAAQS, regardless of the final NAAQS level EPA
establishes, because all of the proposed NAAQS values in the
reconsideration are lower than the 2012 PM2.5 annual NAAQS
of 12.0 [micro]g/m\3\. The commenters contend that taking separate
action on a redesignation request under the 2012 annual
PM2.5 NAAQS would be a waste of EPA resources and could
endanger public health and welfare in the interim period between any
potential redesignation to attainment under the 2012 annual
PM2.5 NAAQS and potential, future designation under a newly
revised PM NAAQS.
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\3\ The final action is EPA's December 2020 final action on its
review of the PM NAAQS. This final action retained the primary and
secondary PM NAAQS without revision, including the PM2.5
annual standard of 12.0 [micro]g/m\3\. 85 FR 82684 (December 18,
2020).
\4\ Proposed rule titled ``Reconsideration of the National
Ambient Air Quality Standards for Particulate Matter,'' 88 FR 5558
(January 27, 2023).
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Response: EPA thanks the commenters for their considered comments.
However, the comments do not provide a reason for EPA to not make a
final determination of attainment by the attainment date, for the
reasons explained below.
First, EPA's determination whether a nonattainment area has
attained the NAAQS by the established attainment date is a
nondiscretionary, statutory duty placed on EPA by CAA section
179(c)(1), which requires that ``as expeditiously as practicable after
the applicable attainment date for any nonattainment area, but not
later than six months after such date, the Administrator shall
determine, based on the area's air quality as of the attainment date,
whether the area attained the standard by that date.'' CAA section
188(b)(2) also places a nondiscretionary duty on EPA to determine,
within six months following the applicable attainment date for a PM
nonattainment area, whether the area attained the standard by that
date. A judicial action has been filed by an environmental advocacy
organization alleging that EPA has failed to perform this mandatory
duty by the June 30, 2022 date required by CAA section 188(b)(2).\5\
EPA is taking final action on the determination of attainment by the
attainment date to fulfill a statutory obligation, which is an
independent statutory requirement that applies regardless of pending
redesignation requests or any revision to the NAAQS.
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\5\ Center for Biological Diversity, et al., v. Michael S.
Regan, Civil Action No. 4:23-cv-00148-JST, (N.D. CA, January 12,
2023).
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As such, comments related to Pennsylvania's November 29, 2022
submission requesting redesignation of the Allegheny County
PM2.5 nonattainment area to attainment are outside the scope
of this action. This determination of attainment by the attainment date
satisfies EPA's obligations under CAA sections 179 and 188 of the CAA
to determine, ``based on the area's air quality as of the attainment
date,'' whether the area attained the standard by that date. EPA's
approval of a state's request to change the legal designation of an
area from nonattainment to attainment for a specific NAAQS is subject
to different statutory criteria. See CAA section 107(d)(3)(E).
Similarly, comments regarding air quality monitoring data and their
relationship to potential future NAAQS are outside the scope of this
action. Under CAA sections 179(c)(1) and 188(b)(2), EPA is making its
determination of attainment by the December 31, 2021, Moderate area
attainment date based on the area's ambient air quality monitoring data
as of the attainment date.
The PM NAAQS reconsideration is the subject of a separate, proposed
EPA action, that took public comment until March 28, 2023. Information
with respect to health or welfare impacts of PM or PM precursors at
levels below the current NAAQS should have been submitted to the docket
for the PM NAAQS reconsideration.\6\
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\6\ Reconsideration of the National Ambient Air Quality
Standards for Particulate Matter, Proposed Rule (88 FR 5558, January
27, 2023).
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In conclusion, EPA has a nondiscretionary duty to determine whether
a Moderate PM2.5 nonattainment area has attained by the
December 31, 2021, Moderate attainment date. The purpose of this action
is to ascertain whether the area attained the 2012 annual
PM2.5 NAAQS by the Moderate area deadline, and if not, to
``bump up'' the area to Serious.
[[Page 32119]]
This determination of attainment by the attainment date is independent
of any future EPA action on a state's request for redesignation of the
area to attainment, or from future revision by EPA of the PM NAAQS.
Comment: The commenter contends that air quality monitoring data
gathered subsequent to the December 31, 2021, Moderate area attainment
date for the Allegheny County nonattainment area shows concerning
PM2.5 levels (though at monitored levels that do not show a
violation of the NAAQS). Further, the commenters express concern that
data from the Federal Equivalent Method (FEM) monitor at the Liberty
Monitor Site shows significantly higher PM2.5 concentrations
than data from the Federal Reference Method (FRM) monitor used to
determine the 2019-21 design value. Using only data from the Liberty
FEM monitor from the 2019 to 2021 period, the commenter claims that the
design value calculated using the appendix N methodology would result
in an annual PM design value of 12.7 [mu]g/m\3\, which is above the
2012 annual PM2.5 standard of 12.0 [mu]g/m\3\.
Response: As explained above, section 179(c)(1) of the CAA requires
that EPA make this determination ``based on the area's air quality as
of the attainment date.'' The air quality monitoring data as of
December 31, 2021, show that the area attained the NAAQS by that date.
Additionally, certified air quality monitoring data in AQS for 2022
(subsequent to the attainment date of December 31, 2021), shows that
the area continues to attain the 2012 annual PM2.5 NAAQS.
Regarding the claim that data from the FEM collocated with the
Liberty FRM shows consistently higher levels of PM than the FRM in the
years 2019 through 2021, EPA notes that the methodology for performing
the PM2.5 design value calculation is set forth at 40 CFR
part 50 (National Primary and Secondary Air Quality Standards),
appendix N (Interpretation of National Ambient Air Quality Standards
for PM2.5), at section 3.0 (Requirements for Data Use and
Data Reporting for Comparisons with the NAAQS for PM2.5).
The PM2.5 FRM monitor is designated as the primary monitor
at the Liberty site, with the FEM monitor and a second FRM monitor
designated as collocated monitors; therefore, the design value
calculation is based on the primary FRM data but shall be augmented
with the collocated FEM and FRM data when the primary FRM data is
missing.\7\ The purposes of both the Liberty FRMs and the FEM are
described in section 10.2 of the Allegheny County Health Department's
Air Quality Monitoring Network Plan for 2021,\8\ and these purposes are
consistent with the methodology in 40 CFR part 50, appendix N. EPA may
not deviate from 40 CFR part 50, appendix N, and Allegheny County's
2021 Air Monitoring Network Plan approved pursuant to 40 CFR 58.10 when
calculating the design value for this determination of attainment.
Following the methodology in appendix N results in a 2019-2021
PM2.5 annual design value for the Liberty monitoring site of
11.2 [micro]g/m\3\, which is less than the 2012 annual PM2.5
NAAQS of 12.0 [micro]g/m\3\.
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\7\ 40 CFR part 50, appendix N, section 3.0(c) provides that,
``The default dataset for PM2.5 mass concentrations for a
site shall consist of the measured concentrations recorded from the
designated primary monitor(s) . . . .'' It is only ``[i]f a valid
daily value is not produced by the primary monitor for a particular
day (scheduled or otherwise), but a value is available from a
collocated monitor,'' that data from the collocated monitor(s)
should be used to augment the site's data per 40 CFR part 50,
appendix N, section 3.0(d).
\8\ ``Air Monitoring Network Plan for Calendar Year 2021,''
Allegheny County Health Department, July 1, 2020, pp.42-44.
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III. Final Action
For the reasons discussed in detail in the proposed rulemaking and
summarized herein, EPA is taking final action under CAA sections
179(c)(1) and 188(b)(2) to determine that the Allegheny County
PM2.5 nonattainment area attained the 2012 annual
PM2.5 NAAQS by its December 31, 2021, attainment date. This
action fulfills EPA's statutory obligation under CAA sections 179(c)(1)
and 188(b)(2) to determine whether the Allegheny County
PM2.5 nonattainment area attained the NAAQS by the
attainment date. This determination does not constitute a redesignation
to attainment. The Allegheny PM2.5 nonattainment area will
remain designated nonattainment for the 2012 annual PM2.5
NAAQS until such time as the EPA determines, pursuant to sections 107
and 175A of the CAA, that the Allegheny PM2.5 nonattainment
area meets the CAA requirements for redesignation to attainment,
including an approved maintenance plan showing that the area will
continue to meet the standard for 10 years.
IV. Statutory and Executive Order Reviews
A. General Requirements
This rulemaking action constitutes a determination of attainment of
the 2012 annual PM2.5 NAAQS based on air quality monitoring
data and does not impose additional requirements. For that reason, this
determination of attainment:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities 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); and
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 Clean Air Act;
In addition, this determination does not impact any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further
[[Page 32120]]
defines the term fair treatment to mean that ``no group of people
should bear a disproportionate burden of environmental harms and risks,
including those resulting from the negative environmental consequences
of industrial, governmental, and commercial operations or programs and
policies.'' Due to the nature of the action being taken, this action is
expected to have neutral to positive impact on the air quality of the
affected area. In addition, there is no information in the record
inconsistent with the stated goal of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
Indigenous peoples.
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 July 18, 2023. Filing a petition for
reconsideration by the Administrator of this final action 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 to determine that the Allegheny County
nonattainment area attained the 2012 annual PM2.5 NAAQS by
its attainment date 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, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Adam Ortiz,
Regional Administrator, Region III.
For the reasons stated in the preamble, the EPA amends 40 CFR part
52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart NN--Pennsylvania
0
2. Amend Sec. 52.2056 by adding paragraph (p) to read as follows:
Sec. 52.2056 Determinations of attainment.
* * * * *
(p) Based on air quality data for the 3-year period 2019 to 2021,
EPA has determined that the Allegheny County nonattainment area
attained the 2012 annual fine particulate matter (PM2.5)
National Ambient Air Quality Standard (NAAQS) by the applicable
attainment date of December 31, 2021. Therefore, EPA has met the
requirement pursuant to Clean Air Act (CAA) sections 179(c) and
188(b)(2) to determine, based on the area's air quality as of the
attainment date, whether the area attained the standard. The Allegheny
County PM2.5 nonattainment area is therefore not subject to
the consequences for failing to attain, pursuant to CAA section 179(d).
[FR Doc. 2023-10728 Filed 5-18-23; 8:45 am]
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