2010-17969. Approval of One-Year Extension for Attaining the 1997 8-Hour Ozone Standard in the Baltimore Moderate Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to extend the attainment date from June 15, 2010 to June 15, 2011 for the Baltimore nonattainment 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 for the 4th highest daily 8-hour monitored value during the 2009 ozone season. Accordingly, EPA is revising the table in our regulations concerning the 8-hour ozone attainment dates in the State of Maryland. EPA is approving the extension of the attainment date for the Baltimore moderate ozone nonattainment area in accordance with the requirements of the Clean Air Act (CAA).

DATES:

Effective Date: This rule is effective on September 21, 2010 without further notice, unless EPA receives adverse written comment by August 23, 2010. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2010-0431. 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 Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT:

Gregory Becoat, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Request for Attainment Date Extension for the Baltimore Nonattainment Area

On March 12, 2010, the State of Maryland requested a one-year attainment date extension for the Baltimore nonattainment area which is classified as moderate for the 1997 8-hour ozone NAAQS. The Baltimore nonattainment area consists of Anne Arundel, Baltimore, Carroll, Harford, and Howard Counties and Baltimore City. 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 State of Maryland's request is that the attainment date be extended to June 15, 2011.

II. CAA Requirements and EPA Actions Regarding One-Year Extensions

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 proceeding 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 172(a)(2)(C) and 181(a)(5) apply to an area subject to the 1997 8-hour ozone NAAQS. Under 40 CFR 51.907, an area will meet the requirement of section 172(a)(2)(C)(ii) or 181(a)(5)(B) of the CAA pertaining to one-year extensions of the attainment date if:

(a) For the first one-year extension, the area's 4th highest daily 8-hour average in the attainment year is 0.084 parts per million (ppm) or less,

(b) For the second one-year extension, the area's 4th highest daily 8-hour value, averaged over both the original attainment year and the first extension year, is 0.084 ppm or less.

(c) For purposes of paragraphs (a) and (b) of this section, the area's 4th highest daily 8-hour average shall be from the monitor with the highest 4th highest daily 8-hour average of all the monitors that represent that area.

EPA's review of the actual ozone air quality data in the Air Quality System shows that the 4th highest daily average 8-hour ozone concentrations for the 2009 attainment year ozone season, for all monitors in the Baltimore moderate ozone nonattainment area are measured at 0.084 ppm or less (Table 1), as required by 40 CFR 51.907(a). The monitoring data has been quality controlled and quality assured.

Table 1—Monitoring Data for 8-Hour Ozone in the Baltimore Nonattainment Area

Site ID	County/State	Year	4th Max 8-HR (ppm)
24-003-0014	Anne Arundel, MD	2009	0.070
24-005-1007	Baltimore, MD	2009	0.068
24-005-3001	Baltimore, MD	2009	0.071
24-013-0001	Carroll, MD	2009	0.068
24-025-1001	Harford, MD	2009	0.083
24-025-9001	Harford, MD	2009	0.069
24-510-0054	Baltimore (City), MD	2009	0.066

EPA has determined that the requirements for a one-year extension of the attainment date have been fulfilled as follows:

(1) The State of Maryland has complied with all requirements and commitments pertaining to the area in the applicable ozone implementation plan; and

(2) The Baltimore nonattainment area's 4th highest daily 8-hour monitored value during the 2009 ozone season is 0.084 ppm or less.

Therefore, EPA approves Maryland's attainment date extension request for the Baltimore moderate ozone nonattainment area. As a result, the chart in 40 CFR 81.321 entitled “Maryland—Ozone (8-Hour Standard)” is being modified to reflect EPA's approval of Maryland's attainment date extension request.

III. Final Action

EPA is approving the attainment date extension from June 15, 2010 to June 15, 2011 for the Baltimore nonattainment area, which is classified as moderate for the 1997 8-hour ozone NAAQS. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 21, 2010 without further notice unless EPA receives adverse comment by August 23, 2010. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

IV. Statutory and Executive Order Reviews

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 finds that an area has qualified for a one-year extension of the attainment date of a previously established NAAQS, and imposes no additional requirements. 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 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 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 Baltimore 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 Baltimore Area were not granted an extension of its attainment date, EPA's recourse would be to initiate a reclassification of the Baltimore Area from its current classification of moderate nonattainment to serious nonattainment, pursuant to section 181(b)(2) of the CAA. Because the Baltimore 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 (DC Cir. 2006), modified and rehearing den., 489 F.3d 1245 (DC 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 nonttainment, no additional emission reduction measures would be required to implemented in the Baltimore area through a 181(b)(2) reclassification.

The extension of the attainment deadline for the 1997 8-hour ozone NAAQS 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 in 40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

Dated: July 6, 2010.

W. C. Early,

Acting Regional Administrator, Region III.

40 CFR part 81 is amended as follows:

PART 81—[AMENDED]

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

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

2. In § 81.321, the table entitled “Maryland—Ozone (8-Hour Standard)” is amended by revising the entry for Baltimore, MD (Anne Arundel County, City of Baltimore, Baltimore County, Carroll County, Harford County, and Howard County) to read as follows:

§ 81.321

Maryland.

* * * * *

Maryland—Ozone

[8-Hour standard]

Designated Area	Designation a		Category/Classification
	Date 1	Type	Date 1	Type
Baltimore, MD:
Anne Arundel County		Nonattainment		4 Subpart 2/Moderate.
City of Baltimore		Nonattainment		4 Subpart 2/Moderate.
Baltimore County		Nonattainment		4 Subpart 2/Moderate.
Carroll County		Nonattainment		4 Subpart 2/Moderate.
Harford County		Nonattainment		4 Subpart 2/Moderate.
Howard County		Nonattainment		4 Subpart 2/Moderate.
*         *         *         *         *         *         *
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.

* * * * *