Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Maryland; Ohio; Determinations of Attainment for the 1997 Fine Particulate Matter Standard, 60199-60203 [E9-27824]

Download as PDF Federal Register / Vol. 74, No. 223 / Friday, November 20, 2009 / Rules and Regulations be inconsistent with the Clean Air Act; 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. 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). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 19, 2010. 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 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) dcolon on DSKHWCL6B1PROD with RULES List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. VerDate Nov<24>2008 15:06 Nov 19, 2009 Jkt 220001 Dated: November 3, 2009. Bharat Mathur, Acting Regional Administrator, Region 5. 60199 attained the 1997 PM2.5 NAAQS. These are the Martinsburg-Hagerstown, WV– MD nonattainment area; the Parkersburg-Marietta, WV–OH ■ For the reasons stated in the preamble, nonattainment area; and the Wheeling, part 52, chapter I, of title 40 of the Code WV–OH nonattainment area. These of Federal Regulations is amended as determinations are based upon follows: complete, quality assured, quality controlled, and certified ambient air PART 52—[AMENDED] monitoring data that show that these areas have monitored attainment of the ■ 1. The authority citation for part 52 1997 PM2.5 NAAQS during the 2006– continues to read as follows: 2008 monitoring period. Currently Authority: 42 U.S.C. 7401 et seq. available monitoring data for 2009 are consistent with continued attainment of Subpart P—Indiana the standard. The intended effect of ■ 2. Section 52.770 is amended by these actions is to finalize these adding paragraph (c)(192) to read as attainment determinations for these follows: areas. With these final determinations, the requirements for States to submit for § 52.770 Identification of plan. these areas an attainment * * * * * demonstration, associated reasonably (c) * * * available control measures, a reasonable (192) The Indiana Department of further progress plan, contingency Environmental Management submitted a measures, and other planning State revision to Indiana’s State Implementation Plans (SIPs) related to Implementation plan on September 25, attainment of the standard are 2009, to amend 326 IAC 1–1–3, suspended for so long as the areas ‘‘References to the Code of Federal continue to meet the 1997 PM2.5 Regulations’’. The revision to 326 IAC NAAQS. EPA’s determinations that 1–1–3 updates the references to CFR these areas have attained the 1997 PM2.5 from the 2007 edition to the 2008 NAAQS are not equivalent to the edition. redesignation of the areas to attainment. (i) Incorporation by reference. Title These actions do not constitute 326 of the Indiana Administrative Code redesignations to attainment under (IAC), section 1–1–3, ‘‘References to the section 107(d)(3) of the Clean Air Act Code of Federal Regulations’’ is (CAA), because we do not yet have an incorporated by reference. The rule was approved maintenance plan for these filed with the Publisher of the Indiana areas as required under that section and Register on July 1, 2009, and became section 175A of the CAA, nor a effective on July 31, 2009. Published in determination that these areas have met the Indiana Register, on July 29, 2009 the other requirements for (DIN: 20090729–IR–326080901FRA). redesignation. The designation status of [FR Doc. E9–27817 Filed 11–19–09; 8:45 am] these areas remains nonattainment for the 1997 PM2.5 NAAQS until such time BILLING CODE 6560–50–P as EPA determines that these areas meet the CAA requirements for redesignation ENVIRONMENTAL PROTECTION to attainment. AGENCY DATES: Effective Date: These final rules are effective on November 20, 2009. 40 CFR Part 52 ADDRESSES: EPA has established dockets [EPA–R03–OAR–2009–0199; EPA–R03– for this action under Docket ID Numbers OAR–2009–0547; FRL–8982–6] EPA–R03–OAR–2009–0199 and EPA– R03–OAR–2009–0547. All documents in Approval and Promulgation of Air the dockets are listed in the http:// Quality Implementation Plans; West www.regulations.gov Web site. Although Virginia; Maryland; Ohio; listed in the electronic docket, some Determinations of Attainment for the information is not publicly available, 1997 Fine Particulate Matter Standard i.e., confidential business information (CBI) or other information whose AGENCY: Environmental Protection disclosure is restricted by statute. Agency (EPA). Certain other material, such as ACTION: Final rule. copyrighted material, is not placed on SUMMARY: EPA is making determinations the Internet and will be publicly available only in hard copy form. that three areas designated Publicly available docket materials are nonattainment for the 1997 fine available either electronically through particulate (PM2.5) National Ambient http://www.regulations.gov or in hard Air Quality Standard (NAAQS) have PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 E:\FR\FM\20NOR1.SGM 20NOR1 60200 Federal Register / Vol. 74, No. 223 / Friday, November 20, 2009 / Rules and Regulations 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: Marilyn Powers, (215) 814–2308, or by e-mail at powers.marilyn@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document whenever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean EPA. Organization of this document. The following outline is provided to aid in locating information in this preamble. I. What Actions is EPA Taking? II. Responses to Comments III. What is the Effect of these Actions? IV. When are these Actions Effective? V. What are EPA’s Final Actions? VI. What are the Statutory and Executive Order Reviews? dcolon on DSKHWCL6B1PROD with RULES I. What Actions Is EPA Taking? EPA is determining that the Martinsburg-Hagerstown, WV-MD, Parkersburg-Marietta, WV-OH, and Wheeling, WV-OH PM2.5 nonattainment areas have attained the 1997 PM2.5 NAAQS. These determinations are based upon three years of complete, quality assured, quality controlled, and certified ambient air monitoring data that show the areas have monitored attainment of the 1997 PM2.5 NAAQS during the 2006–2008 monitoring period. Currently available monitoring data for 2009 are consistent with continued attainment. Other specific details of the determinations and the rationale for EPA’s proposed actions are explained in the notices of proposed rulemaking (NPRs) published on July 31, 2009 (74 FR 38154 and 74 FR 38161) and the subsequent NPRs reopening the comment period, published on September 29, 2009 (74 FR 49833 and 74 FR 49834), and will not be restated here. Although on July 31, 2009 EPA issued separate notices of proposed rulemaking for the Maryland portion of the Martinsburg-Hagerstown nonattainment area (74 FR 38161) and the West Virginia portion (74 FR 38154), in this notice of final rulemaking EPA is addressing in combination both State portions of this nonattainment area. EPA considers its determination of attainment for the HagerstownMartinsburg area, and the comments and responses relating to it, as applicable to the entire nonattainment area.1 Similarly, although EPA 1 EPA’s proposed rulemaking for the Maryland portion of the Martinsburg-Hagerstown area also contained a separate and independent proposed determination of attainment for the Baltimore, MD VerDate Nov<24>2008 15:06 Nov 19, 2009 Jkt 220001 articulated its proposals for determinations of attainment for the Parkersburg-Marietta, WV-OH and Wheeling, WV-OH nonattainment areas (74 FR 38154) in terms of the West Virginia and Ohio portions of the nonattainment area, in this final rulemaking EPA addresses in combination both State portions of the nonattainment area. EPA considers its determinations of attainment for those areas, and any comments and responses relating to them, as applicable to each entire nonattainment area. foundation of EPA’s attainment determination for the MartinsburgHagerstown nonattainment area and (b) comments relating generally to monitoring data for 2009. Through this notice, EPA first addresses the adverse comments specifically directed at the 2006–2008 data for the MartinsburgHagerstown nonattainment area, and then addresses the comments relating to monitoring data for 2009. II. Responses to Comments EPA received comments in response to the NPRs published on July 31, 2009 (74 FR 38154 and 74 FR 38161) and the subsequent NPRs reopening the comment period, published on September 29, 2009 (74 FR 49833 and 74 FR 49834). EPA received both supporting and adverse comments. By this notice EPA is responding to adverse public comments received in response to these NPRs. EarthJustice, on behalf of the Sierra Club, submitted comments by letters dated August 31, 2009 and October 29, 2009. In its comment letter dated August 31, 2009, EarthJustice included a request that the NPRs either be revised or the comment period be reopened to allow the public to consider whether the 2009 data supports the proposed attainment determinations. EPA agreed to reopen the comment period to provide the requested data. In the technical support documents (TSDs) for the NPRs that reopened the comment period, the 2009 data were included, as was additional information that clarified the 2006–2008 data that formed the foundation for the proposed clean data determinations. EPA explained in the TSDs that its determinations were based on complete, quality assured 2006–2008 data, and that the available 2009 data, while not yet complete or quality assured, were consistent with continued attainment. On October 29, 2009, EarthJustice, on behalf of the Sierra Club, submitted additional comments on the supplemental proposals and TSDs. The only adverse comments received were submitted by the Sierra Club and may be categorized as follows: (a) Comments specifically aimed at the 2006–2008 data that form the Comment Through its comment letters dated August 31, 2009 and October 30, 2009, the commenter disagrees with EPA’s proposed attainment determination for the Martinsburg-Hagerstown nonattainment area, based on information relating to a Martinsburg, WV monitor that the commenter obtained from EPA’s AirData database (http://www.epa.gov/air/data/ index.html). As part of its August 31, 2009 comments, the commenter submitted copies of three Monitor Values Reports obtained from EPA’s AirData Web site on August 18, 2009. Each of these reports provides data showing that the Martinsburg, WV monitor (monitor ID #540030003) located in Berkeley County, West Virginia monitored annual PM2.5 mean concentrations of 14.93 μg/m3 in 2006, 15.61 μg/m3in 2007 and 15.36 μg/m3in 2008. Based upon the data set forth in these three reports, the commenter asserts that the design value calculated from these annual means results in nonattainment of the annual NAAQS over the 2006–2008 period. The commenter believes this is contrary to the data provided in the July 31, 2009 NPRs, and that it renders EPA’s proposed determination of attainment for the Martinsburg-Hagerstown area inaccurate; the commenter contends that finalizing the determination would be arbitrary and unlawful. Through its October 30, 2009 comments, the commenter also noted that, in accordance with a September 4, 1992 memo entitled ‘‘Procedures for Processing Requests to Redesignate Areas to Attainment’’ from John Calcagni, Director, Air Quality Management Division, EPA’s Office of Air Quality Planning and Standards, data used to demonstrate attainment should be recorded in the Aerometric Information Retrieval System (AIRS) in order for it to be available to the public for review. The commenter asserted that EPA cannot rely on data that is not published in AIRS to support a finding of attainment. PM2.5 nonattainment area. EarthJustice, on behalf of the Sierra Club, also submitted comments on this proposal in conjunction with its comments on the other proposed rulemakings discussed in this final notice. EPA is not finalizing its proposed attainment determination for the Baltimore, MD PM2.5 nonattainment area in this notice of final rulemaking, and is therefore not addressing the comments relating to Baltimore that were submitted by the commenter with respect to that proposal. PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 Martinsburg-Hagerstown Nonattainment Area E:\FR\FM\20NOR1.SGM 20NOR1 Federal Register / Vol. 74, No. 223 / Friday, November 20, 2009 / Rules and Regulations dcolon on DSKHWCL6B1PROD with RULES Response EPA has reviewed the AirData Monitor Values Reports that were submitted by the commenter. The ‘‘airdata files’’ submitted by the commenter were obtained using EPA’s ‘‘AirData’’ Web site which accesses an extracted static subset of the Aerometric Information Retrieval System Air Quality System (AQS) database. This distinction is relevant because, although, prior to February 2009, the ‘‘airdata files’’ were extracted from AQS on a monthly basis,2 some values may be absent due to incomplete reporting and some values may be subsequently changed after being subjected to quality assurance activities. EPA does not rely on incomplete, non-quality assured data to make determinations of attainment with the NAAQS. Instead, EPA uses certified air monitoring data generally from AQS that meet requirements found in Appendices A, C, D, and E of 40 CFR Part 58, to determine compliance with the NAAQS. Each of the AirData Monitor Values Reports that was submitted by the commenter includes a disclaimer which states in part: ‘‘AirData reports are produced from a monthly extract of EPA’s air pollution database, AQS. Data for this report were extracted on January 10, 2009. They represent the best information available to EPA from state agencies on that date. However, some values may be absent due to incomplete reporting, and some values subsequently may be changed due to quality assurance activities.’’ This disclaimer is particularly relevant to the EPA’s review of the data presented in the Monitor Values Report for the Martinsburg, WV monitor (monitor ID #540030003) located in Berkeley County, West Virginia (‘‘the Martinsburg monitor’’) for the 2008 calendar year. The monitored data set forth in this 2008 Monitor Values Report were incomplete because this report did not include monitoring data for the fourth quarter of 2008. The submitted report included data for only the first three quarters of 2008. Due to the absence of the fourth quarter 2008 monitoring data, the 2008 design value 2 EPA no longer supports the monthly updating of the AirData Web site from official data contained within AQS. Ambient data reported to AQS after January 2009 would not be available through this tool. Due to resources constraints and EPA’s plan to replace AirData with a new method allowing upto-date access by the public to data in AQS, as of the date of this response EPA has not updated the AirData summary data to reflect all 2008 data submitted to AQS. At the present time, the preferred method for the general public to access the publicly available PM2.5 AQS data is to use the data and information available as part of EPA’s AirTrends Site at: http://www.epa.gov/airtrends/ values.html. VerDate Nov<24>2008 15:06 Nov 19, 2009 Jkt 220001 for the Martinsburg monitor cannot be accurately calculated using the data set forth in the submitted 2008 Monitor Values Report. The fourth quarter monitored PM2.5 mean concentration level at the Martinsburg monitor, which became available after January 2009, was 10.68 μg/m3. The annual PM2.5 mean concentration for 2008 is derived from the average of the quarterly means for each of the four quarters of 2008: 15.70 μg/m3, 13.80 μg/m3, 16.57 μg/m3, and 10.68 μg/m3; and such calculation results in a finding that the annual PM2.5 mean concentration for 2008 is 14.19 μg/m3. The design value for the Martinsburg monitor for the 2006–2008 period is 14.9 μg/m3; this is the average of the monitored annual PM2.5 mean concentrations of: 14.93 μg/m3 in 2006, 15.61 μg/m3 in 2007, and 14.19 μg/m3 in 2008. The design value shown in the initial NPRs for the MartinsburgHagerstown, WV-MD nonattainment area published on July 31, 2009 (74 FR 38154 and 74 FR 38161) was 14.9 μg/ m3. The annual PM2.5 mean concentrations data and additional 2008 data, that form the foundation for EPA’s attainment determination were supplied and made available for public comment when EPA re-opened its public comment period and issued its supplemental NPRs and TSDs. For further information, see paragraph C(1) on page 3 of the TSDs for the September 29, 2009 NPR reopening of the comment period (74 FR 49833 and 74 FR 49834). Comment Based on the commenter’s contention, set forth above in the preceding comment, that in 2006–2008 a monitor in Martinsburg, WV recorded a violation of the PM2.5 NAAQS, the commenter argues that EPA cannot make a determination of attainment solely for the Maryland portion of the Martinsburg-Hagerstown area. Response As set forth in the response to comment above, EPA disagrees that the Martinsburg monitor in the Martinsburg-Hagerstown nonattainment area shows a violation of the annual PM2.5 standard for the period 2006– 2008. EPA agrees, however, that if, hypothetically, the commenter were correct and EPA determines that complete, quality assured data from any monitor in the area eligible for comparison to the NAAQS shows nonattainment, the violation would affect the attainment status of the entire area that had been designated nonattainment. As set forth in detail above, however, the complete, qualityassured data for both monitors in the PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 60201 Martinsburg-Hagerstown area show that the entire area is in attainment of the NAAQS. EPA agrees that 40 CFR 51.1004(c) applies ‘‘upon a determination by EPA that an area designated nonattainment for the PM2.5 NAAQS has attained the standard.’’ EPA is making the determination here that the entire Martinsburg-Hagerstown area has attained the PM2.5 NAAQS, based on monitors in both portions of the bi-state area. 2009 Data Comment In its August 31, 2009 comments, the commenter requested that the 2009 data referred to in the NPRs be made available to the public via either revised NPRs or a reopening of the comment period to enable the public to comment on whether the 2009 data supports a finding of attainment. In its October 29, 2009 comments, the commenter agreed that ‘‘EPA cannot rely on the 2009 data to make a finding of attainment as it is not complete and does not meet EPA requirements for demonstration of attainment.’’ Response EPA granted the commenter’s August 31, 2009 request, presented available 2009 data, and reopened the comment period. As requested by the commenter, the portion of the 2009 data that was available at the time of EPA’s July 31, 2009 proposed rulemaking was included as part of the docket, and the public comment period was reopened on September 29, 2009 (74 FR 49833 and 74 FR 49834). In addition to the 2009 data, additional information was provided in the September 29, 2009 NPRs that clarifies how the design value was calculated for the 2006–2008 period. Thus the commenter and the public have been provided an opportunity to review data and analyses relating to EPA’s determinations of attainment that are the subject of today’s rulemakings. At the time of EPA’s proposed determinations EPA did not have complete, quality-assured, Statecertified air quality data for the entire 2009 calendar year. Nor does EPA have those data at the time of this final rulemaking. The complete, quality assured, State certified air quality data for the entire 2009 calendar year will not be available until well into calendar year 2010, and, therefore, cannot be used at this time for purposes of design value calculations during calendar year 2009. In accordance with 40 CFR Part 50 Appendix N and standard EPA practice, EPA’s determinations of attainment are E:\FR\FM\20NOR1.SGM 20NOR1 60202 Federal Register / Vol. 74, No. 223 / Friday, November 20, 2009 / Rules and Regulations based on the three most recent years of complete, quality-assured data, from 2006 to 2008. Appendix N does not provide for examining partial years of data, because various seasons of the year reflect various influences on PM2.5 concentrations, and a partial year’s data may not be representative of values that would be determined from a full year’s data set. Nevertheless, EPA also examined currently available data from 2009 for the limited purpose of determining whether they are consistent with its determination of attainment. The available data for 2009, though not the basis of EPA determinations of attainment, indicate a continuing trend that is consistent with EPA’s determination of attainment, based on 2006 to 2008 data, that the MartinsburgHagerstown, Parkersburg-Marietta, and Wheeling 1997 PM2.5 nonattainment areas are attaining the 1997 PM2.5 standards. In its October 29, 2009 comments, which the Sierra Club submitted after having an opportunity to review the 2009 data it requested, the Sierra Club did not raise any additional concerns about the data apart from their incomplete and preliminary nature. EPA has addressed these concerns above and in its TSDs. EPA has thus fully explained the scope of its review of these data, and the basis for its determinations of attainment based on 2006–2008 data that are complete and quality assured. dcolon on DSKHWCL6B1PROD with RULES III. What Is the Effect of These Actions? These final actions, in accordance with 40 CFR 51.1004(c), suspend the requirements for the MartinsburgHagerstown, WV-MD nonattainment area, the Parkersburg-Marietta, WV-OH nonattainment area, and the Wheeling, WV-OH nonattainment area to submit attainment demonstrations, associated reasonably available control measures, reasonable further progress plans, contingency measures, and other planning SIPs related to attainment of the 1997 PM2.5 NAAQS for so long as that area continues to attain the 1997 PM2.5 NAAQS. IV. When Are These Actions Effective? EPA finds that there is good cause for these determinations to become effective on the date of publication of this action in the Federal Register, because a delayed effective date is unnecessary due to the nature of the approval. The expedited effective date for these actions is authorized under both 5 U.S.C. 553(d)(1), which provides that rule actions may become effective less than 30 days after publication if the rule ‘‘grants or recognizes an exemption VerDate Nov<24>2008 15:06 Nov 19, 2009 Jkt 220001 or relieves a restriction’’ and 5 U.S.C. 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.’’ As noted above, these determinations of attainment suspend the requirements for the MartinsburgHagerstown, Parkersburg-Marietta, and Wheeling PM2.5 nonattainment areas to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and any other planning SIPs related to attainment of the standard for so long as these areas continue to meet the 1997 PM2.5 NAAQS. The suspension of these requirements is sufficient reason to allow an expedited effective date of this rule under 5 U.S.C. 553(d)(1). In addition, the suspension of these requirements provide good cause to make this rule effective on the date of publication of this action in the Federal Register, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in 5 U.S.C. 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Where, as here, the final rules suspend requirements rather than imposing obligations, affected parties do not need time to adjust and prepare before the rule takes effect. the CAA, because we do not yet have an approved maintenance plan for these areas as required under section 175A of the CAA, nor a determination that these areas have met the other requirements for redesignation. The designation status of these areas remains nonattainment for the 1997 PM2.5 NAAQS until such time as EPA determines that these areas meet the CAA requirements for redesignation to attainment. VI. What Are the Statutory and Executive Order Reviews? A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), these actions are not ‘‘significant regulatory action’’ and therefore is not subject to review by the Office of Management and Budget. For this reason, these actions are not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001). These actions make determinations based on air quality data and result in the suspension of certain Federal requirements. Accordingly, the Administrator certifies that these rules 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 these rules make determinations based on air quality data, and result in the V. What Are EPA’s Final Actions? suspension of certain Federal requirements, they do not contain any EPA is determining that the unfunded mandate or significantly or Martinsburg-Hagerstown, Parkersburguniquely affect small governments, as Marietta, and Wheeling nonattainment areas have attained the standards for the described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4). 1997 PM2.5 NAAQS. These These rules also do not have tribal determinations are based upon applications because they will not have complete, quality assured, quality a substantial direct effect on one or controlled, and certified ambient air more Indian tribes, on the relationship monitoring data showing that these between the Federal Government and areas have monitored attainment of the Indian tribes, or on the distribution of 1997 PM2.5 NAAQS based on the power and responsibilities between the 2006–2008 data. In addition, preliminary air quality data available for Federal Government and Indian tribes, as specified by Executive Order 13175 2009 are consistent with continuing (65 FR 67249, November 9, 2000). These attainment. These final actions, in accordance with 40 CFR 51.1004(c), will actions also do not have Federalism implications because they do not have suspend the requirements for States to substantial direct effects on the States, submit attainment demonstrations, on the relationship between the national associated reasonably available control government and the States, or on the measures, reasonable further progress distribution of power and plans, contingency measures, and other responsibilities among the various planning SIPs related to attainment of the 1997 PM2.5 NAAQS for each area, for levels of government, as specified in Executive Order 13132 (64 FR 43255, so long as that area continues to meet August 10, 1999), because they merely the 1997 PM2.5 NAAQS. EPA’s make determinations based on air determination that these areas have attained the 1997 PM2.5 NAAQS are not quality data and result in the suspension of certain Federal equivalent to the redesignation of these requirements, and do not alter the areas to attainment. These actions do relationship or the distribution of power not constitute redesignations to and responsibilities established in the attainment under section 107(d)(3) of PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 E:\FR\FM\20NOR1.SGM 20NOR1 Federal Register / Vol. 74, No. 223 / Friday, November 20, 2009 / Rules and Regulations CAA. These rules also are not subject to Executive Order 13045 ‘‘Protection of Children from Environmental Health Risks’’ (62 FR 19885, April 23, 1997) because they determine that air quality in the affected areas are meeting Federal standards. 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 because it would be inconsistent with applicable law for EPA, when determining the attainment status of an area, to use voluntary consensus standards in place of promulgated air quality standards and monitoring procedures to otherwise satisfy the provisions of the CAA. These rules do not impose an information collection burden under the provisions of the Paper Reduction Act of 1995 (44 U.S.C. 3501 et seq.) Under Executive Order 12898, EPA finds that these rules involve determinations of attainment based on air quality data and will not have disproportionately high and adverse human health or environmental effects on any communities in these areas, including minority and low-income communities. 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 these actions 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. These actions are not ‘‘major rules’’ as defined by 5 U.S.C. 804(2). dcolon on DSKHWCL6B1PROD with RULES C. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of these actions must be filed in the United States Court of Appeals for the appropriate circuit by January 19, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these actions for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, VerDate Nov<24>2008 15:06 Nov 19, 2009 Jkt 220001 60203 and shall not postpone the effectiveness of such rule or actions. These actions, pertaining to the determinations of attainment for the 1997 fine particulate matter standard for the Martinsburg-Hagerstown, Parkersburg-Marietta, and Wheeling PM2.5 nonattainment areas, may not be challenged later in proceedings to enforce requirements. (See section 307(b)(2).) requirements for these areas 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 these areas continue to meet the 1997 PM2.5 NAAQS. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Particulate matter. ■ Dated: November 10, 2009. William C. Early, Acting Regional Administrator, Region III. § 52.2526 matter. ■ 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart V—Maryland 2. Section 52.1081 is amended by designating the existing paragraph as paragraph (a) and adding paragraph (b) to read as follows: ■ § 52.1081 matter. Control strategy: Particulate * * * * * (b) Determination of Attainment. EPA has determined, as of November 20, 2009, the Martinsburg-Hagerstown, WV–MD PM2.5 nonattainment area has attained the 1997 PM2.5 NAAQS. This determination, in accordance with 40 CFR 52.1004(c), suspend 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 PM2.5 NAAQS. Subpart XX—West Virginia 4. Section 52.2526 is amended by designating the existing paragraph as paragraph (a) and by adding paragraph (b) to read as follows: Control strategy: Particulate * * * * * (b) Determinations of Attainment. EPA has determined, as of November 20, 2009, the Martinsburg-Hagerstown, WV-MD, the Parkersburg-Marietta, WVOH and the Wheeling, WV-OH PM2.5 nonattainment areas have attained the 1997 PM2.5 NAAQS. These determinations, in accordance with 40 CFR 52.1004(c), suspend the requirements for these areas 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 these areas continue to meet the 1997 PM2.5 NAAQS. [FR Doc. E9–27824 Filed 11–19–09; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 206 [Docket ID FEMA–2006–0028] RIN 1660–AA45 Subpart KK—Ohio Public Assistance Eligibility 3. Section 52.1880 is amended by adding paragraph (k) to read as follows: AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. ■ § 52.1880 matter. Control strategy: Particulate * * * * * (k) Determinations of Attainment. EPA has determined, as of November 20, 2009, the Parkerburg-Marietta, WVOH and the Wheeling, WV-OH PM2.5 nonattainment areas have attained the 1997 PM2.5 NAAQS. These determinations, in accordance with 40 CFR 52.1004(c), suspend the PO 00000 Frm 00077 Fmt 4700 Sfmt 4700 SUMMARY: The Federal Emergency Management Agency (FEMA) provides financial assistance to State, local, and Tribal governments, as well as certain private non-profit organizations, for response and recovery activities required as a result of a presidentiallydeclared major disaster or emergency. Assistance may include reimbursement for sheltering and evacuation costs E:\FR\FM\20NOR1.SGM 20NOR1

Agencies

[Federal Register Volume 74, Number 223 (Friday, November 20, 2009)]
[Rules and Regulations]
[Pages 60199-60203]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-27824]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0199; EPA-R03-OAR-2009-0547; FRL-8982-6]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Maryland; Ohio; Determinations of Attainment for the 
1997 Fine Particulate Matter Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is making determinations that three areas designated 
nonattainment for the 1997 fine particulate (PM2.5) National 
Ambient Air Quality Standard (NAAQS) have attained the 1997 
PM2.5 NAAQS. These are the Martinsburg-Hagerstown, WV-MD 
nonattainment area; the Parkersburg-Marietta, WV-OH nonattainment area; 
and the Wheeling, WV-OH nonattainment area. These determinations are 
based upon complete, quality assured, quality controlled, and certified 
ambient air monitoring data that show that these areas have monitored 
attainment of the 1997 PM2.5 NAAQS during the 2006-2008 
monitoring period. Currently available monitoring data for 2009 are 
consistent with continued attainment of the standard. The intended 
effect of these actions is to finalize these attainment determinations 
for these areas. With these final determinations, the requirements for 
States to submit for these areas an attainment demonstration, 
associated reasonably available control measures, a reasonable further 
progress plan, contingency measures, and other planning State 
Implementation Plans (SIPs) related to attainment of the standard are 
suspended for so long as the areas continue to meet the 1997 
PM2.5 NAAQS. EPA's determinations that these areas have 
attained the 1997 PM2.5 NAAQS are not equivalent to the 
redesignation of the areas to attainment. These actions do not 
constitute redesignations to attainment under section 107(d)(3) of the 
Clean Air Act (CAA), because we do not yet have an approved maintenance 
plan for these areas as required under that section and section 175A of 
the CAA, nor a determination that these areas have met the other 
requirements for redesignation. The designation status of these areas 
remains nonattainment for the 1997 PM2.5 NAAQS until such 
time as EPA determines that these areas meet the CAA requirements for 
redesignation to attainment.

DATES: Effective Date: These final rules are effective on November 20, 
2009.

ADDRESSES: EPA has established dockets for this action under Docket ID 
Numbers EPA-R03-OAR-2009-0199 and EPA-R03-OAR-2009-0547. All documents 
in the dockets 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

[[Page 60200]]

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: Marilyn Powers, (215) 814-2308, or by 
e-mail at powers.marilyn@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

I. What Actions is EPA Taking?
II. Responses to Comments
III. What is the Effect of these Actions?
IV. When are these Actions Effective?
V. What are EPA's Final Actions?
VI. What are the Statutory and Executive Order Reviews?

I. What Actions Is EPA Taking?

    EPA is determining that the Martinsburg-Hagerstown, WV-MD, 
Parkersburg-Marietta, WV-OH, and Wheeling, WV-OH PM2.5 
nonattainment areas have attained the 1997 PM2.5 NAAQS. 
These determinations are based upon three years of complete, quality 
assured, quality controlled, and certified ambient air monitoring data 
that show the areas have monitored attainment of the 1997 
PM2.5 NAAQS during the 2006-2008 monitoring period. 
Currently available monitoring data for 2009 are consistent with 
continued attainment. Other specific details of the determinations and 
the rationale for EPA's proposed actions are explained in the notices 
of proposed rulemaking (NPRs) published on July 31, 2009 (74 FR 38154 
and 74 FR 38161) and the subsequent NPRs reopening the comment period, 
published on September 29, 2009 (74 FR 49833 and 74 FR 49834), and will 
not be restated here. Although on July 31, 2009 EPA issued separate 
notices of proposed rulemaking for the Maryland portion of the 
Martinsburg-Hagerstown nonattainment area (74 FR 38161) and the West 
Virginia portion (74 FR 38154), in this notice of final rulemaking EPA 
is addressing in combination both State portions of this nonattainment 
area. EPA considers its determination of attainment for the Hagerstown-
Martinsburg area, and the comments and responses relating to it, as 
applicable to the entire nonattainment area.\1\ Similarly, although EPA 
articulated its proposals for determinations of attainment for the 
Parkersburg-Marietta, WV-OH and Wheeling, WV-OH nonattainment areas (74 
FR 38154) in terms of the West Virginia and Ohio portions of the 
nonattainment area, in this final rulemaking EPA addresses in 
combination both State portions of the nonattainment area. EPA 
considers its determinations of attainment for those areas, and any 
comments and responses relating to them, as applicable to each entire 
nonattainment area.
---------------------------------------------------------------------------

    \1\ EPA's proposed rulemaking for the Maryland portion of the 
Martinsburg-Hagerstown area also contained a separate and 
independent proposed determination of attainment for the Baltimore, 
MD PM2.5 nonattainment area. EarthJustice, on behalf of 
the Sierra Club, also submitted comments on this proposal in 
conjunction with its comments on the other proposed rulemakings 
discussed in this final notice. EPA is not finalizing its proposed 
attainment determination for the Baltimore, MD PM2.5 
nonattainment area in this notice of final rulemaking, and is 
therefore not addressing the comments relating to Baltimore that 
were submitted by the commenter with respect to that proposal.
---------------------------------------------------------------------------

II. Responses to Comments

    EPA received comments in response to the NPRs published on July 31, 
2009 (74 FR 38154 and 74 FR 38161) and the subsequent NPRs reopening 
the comment period, published on September 29, 2009 (74 FR 49833 and 74 
FR 49834). EPA received both supporting and adverse comments. By this 
notice EPA is responding to adverse public comments received in 
response to these NPRs. EarthJustice, on behalf of the Sierra Club, 
submitted comments by letters dated August 31, 2009 and October 29, 
2009. In its comment letter dated August 31, 2009, EarthJustice 
included a request that the NPRs either be revised or the comment 
period be reopened to allow the public to consider whether the 2009 
data supports the proposed attainment determinations. EPA agreed to 
reopen the comment period to provide the requested data. In the 
technical support documents (TSDs) for the NPRs that reopened the 
comment period, the 2009 data were included, as was additional 
information that clarified the 2006-2008 data that formed the 
foundation for the proposed clean data determinations. EPA explained in 
the TSDs that its determinations were based on complete, quality 
assured 2006-2008 data, and that the available 2009 data, while not yet 
complete or quality assured, were consistent with continued attainment. 
On October 29, 2009, EarthJustice, on behalf of the Sierra Club, 
submitted additional comments on the supplemental proposals and TSDs.
    The only adverse comments received were submitted by the Sierra 
Club and may be categorized as follows: (a) Comments specifically aimed 
at the 2006-2008 data that form the foundation of EPA's attainment 
determination for the Martinsburg-Hagerstown nonattainment area and (b) 
comments relating generally to monitoring data for 2009. Through this 
notice, EPA first addresses the adverse comments specifically directed 
at the 2006-2008 data for the Martinsburg-Hagerstown nonattainment 
area, and then addresses the comments relating to monitoring data for 
2009.

Martinsburg-Hagerstown Nonattainment Area

Comment

    Through its comment letters dated August 31, 2009 and October 30, 
2009, the commenter disagrees with EPA's proposed attainment 
determination for the Martinsburg-Hagerstown nonattainment area, based 
on information relating to a Martinsburg, WV monitor that the commenter 
obtained from EPA's AirData database (http://www.epa.gov/air/data/index.html). As part of its August 31, 2009 comments, the commenter 
submitted copies of three Monitor Values Reports obtained from EPA's 
AirData Web site on August 18, 2009. Each of these reports provides 
data showing that the Martinsburg, WV monitor (monitor ID 
540030003) located in Berkeley County, West Virginia monitored 
annual PM2.5 mean concentrations of 14.93 [micro]g/m\3\ in 
2006, 15.61 [micro]g/m\3\in 2007 and 15.36 [micro]g/m\3\in 2008. Based 
upon the data set forth in these three reports, the commenter asserts 
that the design value calculated from these annual means results in 
nonattainment of the annual NAAQS over the 2006-2008 period. The 
commenter believes this is contrary to the data provided in the July 
31, 2009 NPRs, and that it renders EPA's proposed determination of 
attainment for the Martinsburg-Hagerstown area inaccurate; the 
commenter contends that finalizing the determination would be arbitrary 
and unlawful. Through its October 30, 2009 comments, the commenter also 
noted that, in accordance with a September 4, 1992 memo entitled 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment'' from John Calcagni, Director, Air Quality Management 
Division, EPA's Office of Air Quality Planning and Standards, data used 
to demonstrate attainment should be recorded in the Aerometric 
Information Retrieval System (AIRS) in order for it to be available to 
the public for review. The commenter asserted that EPA cannot rely on 
data that is not published in AIRS to support a finding of attainment.

[[Page 60201]]

Response

    EPA has reviewed the AirData Monitor Values Reports that were 
submitted by the commenter. The ``airdata files'' submitted by the 
commenter were obtained using EPA's ``AirData'' Web site which accesses 
an extracted static subset of the Aerometric Information Retrieval 
System Air Quality System (AQS) database. This distinction is relevant 
because, although, prior to February 2009, the ``airdata files'' were 
extracted from AQS on a monthly basis,\2\ some values may be absent due 
to incomplete reporting and some values may be subsequently changed 
after being subjected to quality assurance activities. EPA does not 
rely on incomplete, non-quality assured data to make determinations of 
attainment with the NAAQS. Instead, EPA uses certified air monitoring 
data generally from AQS that meet requirements found in Appendices A, 
C, D, and E of 40 CFR Part 58, to determine compliance with the NAAQS. 
Each of the AirData Monitor Values Reports that was submitted by the 
commenter includes a disclaimer which states in part: ``AirData reports 
are produced from a monthly extract of EPA's air pollution database, 
AQS. Data for this report were extracted on January 10, 2009. They 
represent the best information available to EPA from state agencies on 
that date. However, some values may be absent due to incomplete 
reporting, and some values subsequently may be changed due to quality 
assurance activities.'' This disclaimer is particularly relevant to the 
EPA's review of the data presented in the Monitor Values Report for the 
Martinsburg, WV monitor (monitor ID 540030003) located in 
Berkeley County, West Virginia (``the Martinsburg monitor'') for the 
2008 calendar year. The monitored data set forth in this 2008 Monitor 
Values Report were incomplete because this report did not include 
monitoring data for the fourth quarter of 2008. The submitted report 
included data for only the first three quarters of 2008. Due to the 
absence of the fourth quarter 2008 monitoring data, the 2008 design 
value for the Martinsburg monitor cannot be accurately calculated using 
the data set forth in the submitted 2008 Monitor Values Report. The 
fourth quarter monitored PM2.5 mean concentration level at 
the Martinsburg monitor, which became available after January 2009, was 
10.68 [micro]g/m\3\. The annual PM2.5 mean concentration for 
2008 is derived from the average of the quarterly means for each of the 
four quarters of 2008: 15.70 [micro]g/m\3\, 13.80 [micro]g/m\3\, 16.57 
[micro]g/m\3\, and 10.68 [micro]g/m\3\; and such calculation results in 
a finding that the annual PM2.5 mean concentration for 2008 
is 14.19 [micro]g/m\3\. The design value for the Martinsburg monitor 
for the 2006-2008 period is 14.9 [micro]g/m\3\; this is the average of 
the monitored annual PM2.5 mean concentrations of: 14.93 
[micro]g/m\3\ in 2006, 15.61 [micro]g/m\3\ in 2007, and 14.19 [micro]g/
m\3\ in 2008. The design value shown in the initial NPRs for the 
Martinsburg-Hagerstown, WV-MD nonattainment area published on July 31, 
2009 (74 FR 38154 and 74 FR 38161) was 14.9 [micro]g/m\3\. The annual 
PM2.5 mean concentrations data and additional 2008 data, 
that form the foundation for EPA's attainment determination were 
supplied and made available for public comment when EPA re-opened its 
public comment period and issued its supplemental NPRs and TSDs. For 
further information, see paragraph C(1) on page 3 of the TSDs for the 
September 29, 2009 NPR reopening of the comment period (74 FR 49833 and 
74 FR 49834).
---------------------------------------------------------------------------

    \2\ EPA no longer supports the monthly updating of the AirData 
Web site from official data contained within AQS. Ambient data 
reported to AQS after January 2009 would not be available through 
this tool. Due to resources constraints and EPA's plan to replace 
AirData with a new method allowing up-to-date access by the public 
to data in AQS, as of the date of this response EPA has not updated 
the AirData summary data to reflect all 2008 data submitted to AQS. 
At the present time, the preferred method for the general public to 
access the publicly available PM2.5 AQS data is to use 
the data and information available as part of EPA's AirTrends Site 
at: http://www.epa.gov/airtrends/values.html.
---------------------------------------------------------------------------

Comment

    Based on the commenter's contention, set forth above in the 
preceding comment, that in 2006-2008 a monitor in Martinsburg, WV 
recorded a violation of the PM2.5 NAAQS, the commenter 
argues that EPA cannot make a determination of attainment solely for 
the Maryland portion of the Martinsburg-Hagerstown area.

Response

    As set forth in the response to comment above, EPA disagrees that 
the Martinsburg monitor in the Martinsburg-Hagerstown nonattainment 
area shows a violation of the annual PM2.5 standard for the 
period 2006-2008. EPA agrees, however, that if, hypothetically, the 
commenter were correct and EPA determines that complete, quality 
assured data from any monitor in the area eligible for comparison to 
the NAAQS shows nonattainment, the violation would affect the 
attainment status of the entire area that had been designated 
nonattainment. As set forth in detail above, however, the complete, 
quality-assured data for both monitors in the Martinsburg-Hagerstown 
area show that the entire area is in attainment of the NAAQS. EPA 
agrees that 40 CFR 51.1004(c) applies ``upon a determination by EPA 
that an area designated nonattainment for the PM2.5 NAAQS 
has attained the standard.'' EPA is making the determination here that 
the entire Martinsburg-Hagerstown area has attained the 
PM2.5 NAAQS, based on monitors in both portions of the bi-
state area.

2009 Data

Comment

    In its August 31, 2009 comments, the commenter requested that the 
2009 data referred to in the NPRs be made available to the public via 
either revised NPRs or a reopening of the comment period to enable the 
public to comment on whether the 2009 data supports a finding of 
attainment. In its October 29, 2009 comments, the commenter agreed that 
``EPA cannot rely on the 2009 data to make a finding of attainment as 
it is not complete and does not meet EPA requirements for demonstration 
of attainment.''

Response

    EPA granted the commenter's August 31, 2009 request, presented 
available 2009 data, and reopened the comment period. As requested by 
the commenter, the portion of the 2009 data that was available at the 
time of EPA's July 31, 2009 proposed rulemaking was included as part of 
the docket, and the public comment period was reopened on September 29, 
2009 (74 FR 49833 and 74 FR 49834). In addition to the 2009 data, 
additional information was provided in the September 29, 2009 NPRs that 
clarifies how the design value was calculated for the 2006-2008 period. 
Thus the commenter and the public have been provided an opportunity to 
review data and analyses relating to EPA's determinations of attainment 
that are the subject of today's rulemakings.
    At the time of EPA's proposed determinations EPA did not have 
complete, quality-assured, State-certified air quality data for the 
entire 2009 calendar year. Nor does EPA have those data at the time of 
this final rulemaking. The complete, quality assured, State certified 
air quality data for the entire 2009 calendar year will not be 
available until well into calendar year 2010, and, therefore, cannot be 
used at this time for purposes of design value calculations during 
calendar year 2009. In accordance with 40 CFR Part 50 Appendix N and 
standard EPA practice, EPA's determinations of attainment are

[[Page 60202]]

based on the three most recent years of complete, quality-assured data, 
from 2006 to 2008. Appendix N does not provide for examining partial 
years of data, because various seasons of the year reflect various 
influences on PM2.5 concentrations, and a partial year's 
data may not be representative of values that would be determined from 
a full year's data set. Nevertheless, EPA also examined currently 
available data from 2009 for the limited purpose of determining whether 
they are consistent with its determination of attainment. The available 
data for 2009, though not the basis of EPA determinations of 
attainment, indicate a continuing trend that is consistent with EPA's 
determination of attainment, based on 2006 to 2008 data, that the 
Martinsburg-Hagerstown, Parkersburg-Marietta, and Wheeling 1997 
PM2.5 nonattainment areas are attaining the 1997 
PM2.5 standards.
    In its October 29, 2009 comments, which the Sierra Club submitted 
after having an opportunity to review the 2009 data it requested, the 
Sierra Club did not raise any additional concerns about the data apart 
from their incomplete and preliminary nature. EPA has addressed these 
concerns above and in its TSDs. EPA has thus fully explained the scope 
of its review of these data, and the basis for its determinations of 
attainment based on 2006-2008 data that are complete and quality 
assured.

III. What Is the Effect of These Actions?

    These final actions, in accordance with 40 CFR 51.1004(c), suspend 
the requirements for the Martinsburg-Hagerstown, WV-MD nonattainment 
area, the Parkersburg-Marietta, WV-OH nonattainment area, and the 
Wheeling, WV-OH nonattainment area to submit attainment demonstrations, 
associated reasonably available control measures, reasonable further 
progress plans, contingency measures, and other planning SIPs related 
to attainment of the 1997 PM2.5 NAAQS for so long as that 
area continues to attain the 1997 PM2.5 NAAQS.

IV. When Are These Actions Effective?

    EPA finds that there is good cause for these determinations to 
become effective on the date of publication of this action in the 
Federal Register, because a delayed effective date is unnecessary due 
to the nature of the approval. The expedited effective date for these 
actions is authorized under both 5 U.S.C. 553(d)(1), which provides 
that rule actions may become effective less than 30 days after 
publication if the rule ``grants or recognizes an exemption or relieves 
a restriction'' and 5 U.S.C. 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.'' As noted 
above, these determinations of attainment suspend the requirements for 
the Martinsburg-Hagerstown, Parkersburg-Marietta, and Wheeling 
PM2.5 nonattainment areas to submit an attainment 
demonstration, associated reasonably available control measures, a 
reasonable further progress plan, contingency measures, and any other 
planning SIPs related to attainment of the standard for so long as 
these areas continue to meet the 1997 PM2.5 NAAQS. The 
suspension of these requirements is sufficient reason to allow an 
expedited effective date of this rule under 5 U.S.C. 553(d)(1). In 
addition, the suspension of these requirements provide good cause to 
make this rule effective on the date of publication of this action in 
the Federal Register, pursuant to 5 U.S.C. 553(d)(3). The purpose of 
the 30-day waiting period prescribed in 5 U.S.C. 553(d) is to give 
affected parties a reasonable time to adjust their behavior and prepare 
before the final rule takes effect. Where, as here, the final rules 
suspend requirements rather than imposing obligations, affected parties 
do not need time to adjust and prepare before the rule takes effect.

V. What Are EPA's Final Actions?

    EPA is determining that the Martinsburg-Hagerstown, Parkersburg-
Marietta, and Wheeling nonattainment areas have attained the standards 
for the 1997 PM2.5 NAAQS. These determinations are based 
upon complete, quality assured, quality controlled, and certified 
ambient air monitoring data showing that these areas have monitored 
attainment of the 1997 PM2.5 NAAQS based on the 2006-2008 
data. In addition, preliminary air quality data available for 2009 are 
consistent with continuing attainment. These final actions, in 
accordance with 40 CFR 51.1004(c), will suspend the requirements for 
States to submit attainment demonstrations, associated reasonably 
available control measures, reasonable further progress plans, 
contingency measures, and other planning SIPs related to attainment of 
the 1997 PM2.5 NAAQS for each area, for so long as that area 
continues to meet the 1997 PM2.5 NAAQS. EPA's determination 
that these areas have attained the 1997 PM2.5 NAAQS are not 
equivalent to the redesignation of these areas to attainment. These 
actions do not constitute redesignations to attainment under section 
107(d)(3) of the CAA, because we do not yet have an approved 
maintenance plan for these areas as required under section 175A of the 
CAA, nor a determination that these areas have met the other 
requirements for redesignation. The designation status of these areas 
remains nonattainment for the 1997 PM2.5 NAAQS until such 
time as EPA determines that these areas meet the CAA requirements for 
redesignation to attainment.

VI. What Are the Statutory and Executive Order Reviews?

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), these 
actions are not ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, these actions are not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). These 
actions make determinations based on air quality data and result in the 
suspension of certain Federal requirements. Accordingly, the 
Administrator certifies that these rules 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 these rules 
make determinations based on air quality data, and result in the 
suspension of certain Federal requirements, they do 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).
    These rules also do not have tribal applications because they will 
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). These actions also do not have Federalism 
implications because they do not 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 they merely make determinations 
based on air quality data and result in the suspension of certain 
Federal requirements, and do not alter the relationship or the 
distribution of power and responsibilities established in the

[[Page 60203]]

CAA. These rules also are not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks'' (62 FR 
19885, April 23, 1997) because they determine that air quality in the 
affected areas are meeting Federal standards.
    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 
because it would be inconsistent with applicable law for EPA, when 
determining the attainment status of an area, to use voluntary 
consensus standards in place of promulgated air quality standards and 
monitoring procedures to otherwise satisfy the provisions of the CAA.
    These rules do not impose an information collection burden under 
the provisions of the Paper Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.)
    Under Executive Order 12898, EPA finds that these rules involve 
determinations of attainment based on air quality data and will not 
have disproportionately high and adverse human health or environmental 
effects on any communities in these areas, including minority and low-
income communities.

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 these actions 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. These actions are not ``major rules'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of these actions must be filed in the United States 
Court of Appeals for the appropriate circuit by January 19, 2010. 
Filing a petition for reconsideration by the Administrator of this 
final rule does not affect the finality of these actions 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 actions.
    These actions, pertaining to the determinations of attainment for 
the 1997 fine particulate matter standard for the Martinsburg-
Hagerstown, Parkersburg-Marietta, and Wheeling PM2.5 
nonattainment areas, may not be challenged later in proceedings to 
enforce requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter.

    Dated: November 10, 2009.
William C. Early,
Acting Regional Administrator, Region III.

0
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 V--Maryland

0
2. Section 52.1081 is amended by designating the existing paragraph as 
paragraph (a) and adding paragraph (b) to read as follows:


Sec.  52.1081  Control strategy: Particulate matter.

* * * * *
    (b) Determination of Attainment. EPA has determined, as of November 
20, 2009, the Martinsburg-Hagerstown, WV-MD PM2.5 
nonattainment area has attained the 1997 PM2.5 NAAQS. This 
determination, in accordance with 40 CFR 52.1004(c), suspend 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 PM2.5 NAAQS.

Subpart KK--Ohio

0
3. Section 52.1880 is amended by adding paragraph (k) to read as 
follows:


Sec.  52.1880  Control strategy: Particulate matter.

* * * * *
    (k) Determinations of Attainment. EPA has determined, as of 
November 20, 2009, the Parkerburg-Marietta, WV-OH and the Wheeling, WV-
OH PM2.5 nonattainment areas have attained the 1997 
PM2.5 NAAQS. These determinations, in accordance with 40 CFR 
52.1004(c), suspend the requirements for these areas 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 these areas continue to meet the 1997 PM2.5 NAAQS.

Subpart XX--West Virginia

0
4. Section 52.2526 is amended by designating the existing paragraph as 
paragraph (a) and by adding paragraph (b) to read as follows:


Sec.  52.2526  Control strategy: Particulate matter.

* * * * *
    (b) Determinations of Attainment. EPA has determined, as of 
November 20, 2009, the Martinsburg-Hagerstown, WV-MD, the Parkersburg-
Marietta, WV-OH and the Wheeling, WV-OH PM2.5 nonattainment 
areas have attained the 1997 PM2.5 NAAQS. These 
determinations, in accordance with 40 CFR 52.1004(c), suspend the 
requirements for these areas 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 these areas continue to meet 
the 1997 PM2.5 NAAQS.

[FR Doc. E9-27824 Filed 11-19-09; 8:45 am]
BILLING CODE 6560-50-P