Determination of Failure To Attain by 2005 and Determination of Current Attainment of the 1-Hour Ozone National Ambient Air Quality Standards in the Baltimore Nonattainment Area in Maryland, 34810-34819 [2012-14141]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Rules and Regulations]
[Pages 34810-34819]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14141]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R03-OAR-2011-0680; FRL-9685-5]


Determination of Failure To Attain by 2005 and Determination of 
Current Attainment of the 1-Hour Ozone National Ambient Air Quality 
Standards in the Baltimore Nonattainment Area in Maryland

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is issuing two separate and independent final 
determinations related to the Baltimore 1-hour ozone nonattainment 
area. First, EPA is determining that the Baltimore area previously 
failed to attain the 1-hour ozone National Ambient Air Quality Standard 
(NAAQS) by its applicable attainment deadline of November 15, 2005 
(based on complete, quality-assured and certified ozone monitoring data 
for 2003-2005). Second, EPA is also determining that the Baltimore area 
is currently attaining the now revoked 1-hour ozone NAAQS based on 
complete, quality-assured and certified ozone monitoring data for 2008-
2010 and continuing for 2009-2011. Thus, quality-assured ozone 
monitoring data in the Air Quality System (AQS) show that the area has 
been attaining the revoked 1-hour ozone standard since 2008. EPA's 
determination that the area has attained the 1-hour ozone standard 
obviates the need for submission of any contingency measures for 
failure to attain that revoked standard.

DATES: This final rule is effective on July 12, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2011-0680. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or 
by email at cripps.christopher@epa.gov.

SUPPLEMENTARY INFORMATION: 
    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA.

Table of Contents

I. What actions EPA is taking?
II. What is the background for these actions?
III. What comments were received on these actions and what are EPA's 
responses?
IV. Final Actions
V. Statutory and Executive Order Reviews

I. What actions EPA is taking?

    EPA is issuing two separate and independent determinations for the 
Baltimore area related to implementation of anti-backsliding 
requirements for the 1-hour ozone NAAQS.\1\
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    \1\ Hereafter the term ``1-hour ozone NAAQS'' may be expressed 
either as ``1-hour ozone NAAQS'' or as ``1-hour ozone standard.''
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A. Determination of Failure To Attain the 1-Hour Ozone NAAQS by the 
Applicable Attainment Date

    Pursuant to EPA's authority to ensure implementation of 1-hour 
ozone anti-backsliding requirements and section 301 of the Clean Air 
Act (CAA), EPA is determining that complete, quality-assured and 
certified data for 2003-2005 show that the Baltimore area previously 
failed to attain the 1-hour ozone standard by its applicable November 
15, 2005 attainment deadline.

B. Determination of Current Attainment of the 1-Hour Ozone NAAQS

    EPA is determining that the Baltimore area is currently attaining 
the 1-hour ozone standard. EPA's determination is based on the most 
recent three-year periods of complete, quality-assured and certified 
data, 2008-2010 and continuing in 2009-2011. Moreover, complete, 
quality-assured and certified data show that the Baltimore area has 
attained the 1-hour ozone standard since the 2006-2008 monitoring 
period and for every three-year period since that time. Pursuant to 
EPA's interpretation, as set forth in its Clean Data Policy \2\ and the 
cases and regulations that embody it, EPA has determined that the 
Baltimore area is no longer obliged to submit and implement the 1-hour 
ozone contingency measure requirement of CAA section 172(c)(9).
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    \2\ See ``Reasonable Further Progress, Attainment Demonstration, 
and Related Requirements for Ozone Nonattainment Areas Meeting the 
Ozone National Ambient Air Quality Standard,'' (Clean Data Policy) 
dated May 10, 1995.
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    In order to determine the area's air quality status for purposes of 
this action, EPA reviewed ozone monitoring

[[Page 34811]]

air quality data from the states, in accordance with 40 CFR 50.9, 40 
CFR part 50 appendix H, and EPA policy and guidance, as well as data 
processing, data rounding and data completeness requirements. EPA's 
review of the air quality data and related rationale for these 
determinations are explained in the Notice of Proposed Rulemaking (NPR) 
published in the Federal Register on February 1, 2012 (77 FR 4940) 
(hereafter ``the NPR for this action'' or ``the February 1, 2012 NPR'') 
and will not be restated here.

II. What is the background for these actions?

    The Baltimore area is composed of Baltimore, Carroll, Harford and 
Howard Counties and the City of Baltimore.\3\ The 1-hour ozone standard 
designations were established by EPA following the enactment of the 
1990 Amendments to the CAA. See 56 FR 56694, November 6, 1991. Each 
area of the country that was designated nonattainment for the 1-hour 
ozone NAAQS was classified by operation of law as marginal, moderate, 
serious, severe, or extreme depending on the severity of the area's air 
quality problem. (See CAA sections 107(d)(1)(C) and 181(a)). The 
Baltimore area was designated nonattainment under the 1-hour ozone 
NAAQS and classified as severe-15, with an applicable attainment date 
of November 15, 2005.
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    \3\ These same counties were designated nonattainment under the 
1997 8-hour ozone NAAQS and the 2008 ozone NAAQS. See 40 CFR 81.321 
and 77 FR 30088 at 30127, May 21, 2012.
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    On July 18, 1997, (62 FR 38856), EPA promulgated a new, more 
protective standard for ozone based on eight-hour average 
concentrations (the ``1997 eight-hour ozone NAAQS''). EPA designated 
and classified most areas of the country under the eight-hour ozone 
NAAQS in an April 30, 2004 final rule (69 FR 23858). In this April 30, 
2004 final rule EPA designated the Baltimore area nonattainment under 
the 1997 eight-hour ozone NAAQS and classified the area as moderate.\4\
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    \4\ Subsequently, pursuant to section 181(b)(2), EPA 
reclassified the Baltimore area as a serious ozone nonattainment 
area due to the area's failure to attain 1997 eight-hour ozone NAAQS 
on time. See 77 FR 4901, February 1, 2012.
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    On April 30, 2004 (69 FR 23951), EPA also issued a final rule 
entitled ``Final Rule To Implement The 8-hour Ozone National Ambient 
Air Quality Standard--Phase 1,'' referred to as the Phase 1 Rule. Among 
other matters, this rule revoked the 1-hour ozone NAAQS in most areas 
of the country, effective June 15, 2005. (See 40 CFR 50.9(b); 69 FR at 
23996; and 70 FR 44470 (August 3, 2005)). The Phase 1 Rule also set 
forth how anti-backsliding principles will ensure continued progress 
toward attainment of the eight-hour ozone NAAQS by identifying which 1-
hour ozone requirements remain applicable in an area after revocation 
of the 1-hour ozone NAAQS.
    Although EPA revoked the 1-hour ozone standard (effective June 15, 
2005), eight-hour ozone nonattainment areas remain subject to certain 
1-hour anti-backsliding requirements based on their 1-hour ozone 
classification. Initially, EPA's Phase 1 rule to address the transition 
from the 1-hour to the eight-hour ozone standard did not include 1-hour 
nonattainment area contingency measures or major source penalty fee 
programs among the measures retained as 1-hour ozone anti-backsliding 
requirements. However, on December 23, 2006, the United States Court of 
Appeals for the District of Columbia Circuit determined that EPA should 
not have excluded these requirements (and certain others not relevant 
here) from its anti-backsliding requirements. South Coast Air Quality 
Management District v. EPA,\5\ 472 F.3d 882 (D.C. Cir. 2006), reh'g 
denied 489 F.3d 1245 (clarifying that the vacatur was limited to the 
issues on which the court granted the petitions for review). Thus, the 
Court vacated the provisions that excluded these requirements. As a 
result, states must continue to meet the obligations for 1-hour ozone 
NAAQS contingency measures. On May 14, 2012 (77 FR 28424), EPA issued a 
final rule that, among other things, removed the vacated provisions of 
40 CFR 51.905(e) and addressed the anti-backsliding requirement for 
contingency measures for failure to attain or make reasonable further 
progress toward attainment of the 1-hour ozone standard. See 74 FR 
2936, January 16, 2009 (proposed rule); 74 FR 7027, February 12, 2009 
(notice of public hearing and extension of comment period); and 77 FR 
28424, May 14, 2012. On February 1, 2012, EPA proposed the 
determinations that are the subject of this final rulemaking action.\6\
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    \5\ Hereafter this decision will be called ``South Coast.''
    \6\ EPA's February 1, 2012 Federal Register NPR was captioned as 
potentially affecting 40 CFR parts 52 and 81. Because the final 
action does not change the classification or other provisions 
relating to the Baltimore area codified in 40 CFR part 81, this 
action as finalized results only in revision of 40 CFR part 52.
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III. What comments were received on these actions and what are EPA's 
responses?

    We received comments from the Sierra Club, which opposed aspects of 
both actions and contended that the proposed rule was incomplete. 
Below, EPA summarizes those comments and sets forth EPA's responses.

A. Comments on the Determination of Attainment of the 1-Hour Ozone 
NAAQS

    Comment 1: The commenter claimed that a finding that Baltimore has 
attained since 2008 is premature because monitored data for years since 
2008 are for years that are not reflective of the historic trend of 
emissions. In support of their position, the commenter cite Draft 
Inventory of U.S. Greenhouse Gas Emissions and Sinks, 1990-2010, 
(February 2012) to support the proposition that reductions in emissions 
of NOX and VOC \7\ in 2008 and 2009 are due in part to 
nonpermanent reductions in electricity demand and other emissions 
related activities resulting from the economic recession. The commenter 
also noted that the same draft inventory stated that CO2 
emissions rose by 3.7 percent--the largest increase in a 21 year 
period--which should correlate to increasing NOX and VOC 
emissions from all sectors as well. The commenter contends that EPA is 
required in this rulemaking to further determine that the emissions 
decreases were due to pollution controls and not the economic downturn 
and cited section 107(d)(3)(E)(iii) of the CAA, which states: ``The 
Administrator determines that the improvement in air quality is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the applicable implementation plan and applicable 
Federal air pollutant control regulations and other permanent and 
enforceable reductions.'' The commenter argues that EPA is precluded 
here from making a determination of attainment based on monitored air 
quality, unless EPA makes an additional analysis and determination that 
air quality is due to permanent and enforceable reductions from 
enforceable limits and control measures.
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    \7\ NOX is an abbreviation for ``nitrogen oxides;'' 
VOC is an abbreviation for ``volatile organic compounds.''
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    Response 1: EPA disagrees with the comment. EPA's determination of 
attainment in this final rule is properly based on monitored air 
quality, and it complies with the statutory and regulatory procedures 
that govern the making of a determination of attainment for the 
purposes of comparison to the 1-hour NAAQS. See 40 CFR 50.9 and 
Appendix H. This determination is by definition solely focused on 
monitored air quality concentrations and does not

[[Page 34812]]

involve an assessment of causes for those concentrations. Thus it is 
separate and independent of the inquiry into the origins of the reduced 
monitored ambient concentrations. The commenter conflates EPA's 
obligations when making a determination of attainment, which is based 
solely on monitored air quality concentrations, with separate and 
additional obligations that apply only when EPA is evaluating a request 
to redesignate an area from nonattainment to attainment--a process that 
is not being undertaken here. The statutory provision cited by 
commenter, section 107(d)(3)(E)(iii) of the CAA, applies only in the 
context of a redesignation request, and explicitly lists specific 
criteria that must be met for redesignation, which are separate from 
and in addition to the criteria that must be met when making a 
determination of attainment.
    In the quite different context of a redesignation, section 
107(d)(3)(E)(iii) of the CAA requires EPA to determine, among other 
things, that attainment of a NAAQS resulted from permanent and 
enforceable emissions reductions under the applicable SIP and Federal 
rules. Section 107(d)(3(E)(i) of the CAA lists a determination of 
attainment as an independent factor, separate and apart from the other 
criteria for approving a redesignation request. Section 
107(d)(3)(E)(iii) of the CAA applies only when EPA proposes to 
redesignate an area from nonattainment of a NAAQS to attainment. In our 
February 1, 2012 NPR, EPA did not propose to redesignate the Baltimore 
area to attainment of the 1-hour ozone NAAQS. Moreover, after 
revocation of the 1-hour ozone NAAQS in 2005, EPA no longer 
redesignates areas to attainment of the 1-hour ozone NAAQS. Nor as the 
commenter claimed, did EPA propose to ``reclassify'' the Baltimore 
area.\8\ Instead, the February 1, 2012 NPR proposed only to determine 
that the Baltimore area has attained the 1-hour ozone NAAQS based upon 
quality-assured and certified data for each consecutive 3-year period 
from 2006 to 2008 and through 2008 to 2010. EPA also proposed to 
determine that the area continues to attain during the most recent 3-
year period for which data are available, 2009-2011, based upon data 
available for 2011. As EPA notes elsewhere in its responses to 
comments, these 2011 data have now been certified and quality-assured, 
and thus establish that the area continues in attainment for the 1-hour 
ozone standard. In accordance with the statute and EPA's regulations, 
EPA's determination of attainment is based solely upon monitored air 
quality data which establish that the area's air quality has attained 
the revoked 1-hour ozone NAAQS. EPA's determination therefore meets 
regulatory requirements for the clearly defined purpose for which it is 
made. The commenter's concerns and contentions, therefore, are 
inaccurate, and do not in any way detract from the sound basis for 
EPA's final determination that Baltimore has attained the 1-hour ozone 
standard.
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    \8\ After revocation of the 1-hour ozone standard, EPA no longer 
reclassifies areas under that standard. Moreover, even prior to 
revocation, the statute did not provide for reclassification of 
severe areas upon a failure to attain the standard by the applicable 
attainment date. See section 181(b)(2).
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    Comment 2: The commenter urges the importance of showing that the 
improvement in air quality is not due to the economic downturn is 
important because the air quality data indicate that the Baltimore area 
is at the upper limit of what can be considered attainment (3.1 
expected exceedances over 2009 to 2011) under the 1-hour ozone NAAQS. 
The commenter suggests that the air quality improvement and continued 
attainment may be due to economic factors and not to pollution controls 
and argues that the Baltimore area may quickly slip back into 
nonattainment as the economy recovers, and that any ``redesignation of 
the area to attainment will not be valid.''
    Response 2: EPA disagrees with the comment. As set forth in EPA's 
response to Comment 1, as is appropriate, EPA here is making only a 
determination of attainment for the 1-hour ozone standard based on 
monitored air quality. EPA is not redesignating the area to attainment 
for that standard--nor could the Agency do so, in view of the fact that 
the 1-hour ozone standard has been revoked since 2005. EPA's clearly 
defined determination of attainment here is consistent with the 
regulations that apply, and is based upon three years of complete, 
quality-assured monitoring data. For each NAAQS, EPA establishes 
through regulation procedures for the requisite level (in this case 
0.12 ppm \9\), form (averaging periods, etc.) and, minimum data quality 
and handling conventions necessary to distinguish compliance from 
noncompliance. Although the 1-hour ozone NAAQS as promulgated in 40 CFR 
50.9 includes no discussion of specific rounding conventions regarding 
rounding measured ambient air quality data or the expected number of 
exceedances for a year or over a consecutive three year period, our 
publicly articulated position and the approach long since universally 
adopted by the air quality management community is that the 
interpretation of the 1-hour ozone standard requires rounding ambient 
air quality data consistent with the stated level of the standard. 
Section 1.0 of Appendix H to 40 CFR part 50 explains how to determine 
when the expected number of days per calendar year with maximum hourly 
average concentrations above 0.12 ppm is equal to or less than 1. 
Section 1.0 of Appendix H refers to ``Guideline for Interpretation of 
Ozone Air Quality Standards'' \10\ for an ``expanded discussion of 
these procedures and associated examples.'' In section 2.1--
Interpretation of Expected Number, this ``Guideline for Interpretation 
of Ozone Air Quality Standards'' says as long as ``this arithmetic 
average remains `less than or equal to 1' the area is in compliance. As 
far as rounding conventions are concerned, it suffices to carry one 
decimal place when computing the average.'' In the 1990 amendments to 
the CAA, Congress expressly recognized the continuing validity of EPA 
guidance. See generally, H Comm. Rep. 101-490 pp. 197, 232 (1990) 
(House Energy and Commerce Committee Report). Under EPA regulations, a 
sum of 3.1 expected exceedances over a consecutive 3-year period 
complies with the standard because the average is 3.1 divided by 3 or 
1.0333 * * * that when rounded to carry one decimal place is 1.0 which 
does not exceed 1. The fractional value of the amount of expected 
exceedances arises due to missed monitoring days and derives from 
calculations pursuant to Appendix H to 40 CFR part 50. The form of the 
standard itself in terms of average number of ``expected exceedances'' 
is grounded in statistical considerations because the term ``expected 
exceedances'' is a statistical term. See section 2.0 of ``Guideline for 
Interpretation of Ozone Air Quality Standards.'' This fractional part 
of ``expected exceedances'' for a year or for a consecutive 3-year 
period arises from the calculation required using the procedures of 
Appendix H to 40 CFR part 50 to account for the number of days for 
which no valid data difference between the required number of required 
monitoring days in the year and the actual number of days with valid 
data with an allowance for the number of days a state may assume to

[[Page 34813]]

be less than the standard level. These calculations were provided in 
Appendix A to ``Technical Support Document--Determination of Failure to 
Attain by 2005 and Determination of Attainment by 2008 for the 1-Hour 
Ozone National Ambient Air Quality Standards in the Baltimore 
Nonattainment Area in Maryland.\11\'' Thus, the form of the 1-hour 
ozone NAAQS restricts the level of uncertainty, in the form of missed 
monitoring data as expressed, in the case of the 2011 data for one 
monitor, as 3.1 expected exceedances over a three-year period.
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    \9\ The abbreviation ``ppm'' stands for parts per million.
    \10\ ``Guideline for the Interpretation of Ozone Air Quality 
Standards,'' EPA-450/4-79-003, OAQPS No. 1.2-108, January 1979, 
docket item number EPA-R03-OAR-2011-0680-0003 in the docket for this 
action.
    \11\ Docket item number EPA-R03-OAR-2011-0680-0008 in the docket 
for this action.
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    This fractional number is not an indication that the area is not 
attaining the standard, but rather takes into consideration and 
accounts for missing data. Moreover, EPA determines whether the area is 
in attainment through the procedures and definitions supplied in the 
regulations and under long standing interpretations. EPA does not 
distinguish degrees of attainment. Once an area's monitored 
concentrations show that it is below the level of concentrations 
defined as ``attainment'' of the standard, EPA considers the area to be 
in attainment of that standard.
    Comment 3: The comments assert that EPA cannot determine that the 
Baltimore area is attaining the 1-hour ozone NAAQS for the period 2009 
to 2011 unless and until EPA has determined the 2011 data meet the data 
quality standards of 40 CFR 50.9 and Appendix H for use in compliance 
determinations. The commenter stated that the data for 2011 reflect 209 
out of 214 required monitoring days, with ``three days assumed less 
than the standard,'' and contends that EPA must show that the missing 
days are not contributing to nonattainment for 2009-2011, according to 
the applicable calculation methods.
    Response 3: EPA agrees that a determination of attainment of the 
revoked 1-hour ozone standard should be consistent with relevant 
regulatory requirements. EPA has determined that the 2011 data meet the 
quality assurance and certification requirements for use to determine 
compliance with the 1-hour ozone NAAQS through 2011. In making a 
determination of attainment, EPA relies on the most recent three years 
of complete, quality-assured data, and also reviews subsequent data 
that become available and that suggest consistency with continued 
attainment. On February 1, 2012 (77 FR 4940), EPA proposed a 
determination that the Baltimore area has attained the 1-hour ozone 
NAAQS, and included data showing that the area had attained the 
standard since 2008. Although at that point the 2011 data had not yet 
been certified by the State of Maryland, the data for prior years had 
been previously certified and showed continuous attainment, and 
available data for 2011 were consistent with continued attainment. On 
April 12, 2012, the Maryland Department of the Environment certified 
the 2011 air quality monitoring data for ozone as complete and quality-
assured. EPA has reviewed the certified 2011 1-hour ozone monitoring 
data and determined that the certified 2011 data matches and is the 
same as that used to support the February 1, 2012 NPR. Because data for 
2011 have now have been certified as complete and quality-assured, this 
final rule determining that the Baltimore area is attaining the 1-hour 
ozone NAAQS is based upon the most recent three years of complete, 
quality-assured, certified air quality monitoring data for 2009 to 
2011. As discussed in the previous response, the form of the 1-hour 
ozone NAAQS and Appendix H to 40 CFR part 50 (which contains the 
interpretation and procedures to calculate the number of expected 
exceedances for a year) account for any days for which valid data are 
missing. For this reason, EPA can determine the Baltimore area is 
attaining the 1-hour ozone NAAQS now that the 2011 data have been 
certified.
    Comment 4: The comments asserted that the 2008 1-hour ozone data 
for the Edgewood monitor is missing as evinced by an Ozone Monitor 
Report 2008 obtained from EPA's Web page https://www.epa.gov/airdata/ad_rep_mon.html. Thus, the comments assert EPA needs to provide these 
data and verify that there actually were no values at the Edgewood 
monitor in 2008 above the 125 ppb level, and EPA needs to explain why 
the 2008 1-hour data for Edgewood, which is the critical monitoring 
data for determining attainment, is missing from its Web page. The 
comments expressed concern that the 8-hour averages are also very high 
which suggests that there may have been 1-hour levels above 125 ppb.
    Response 4: In response to this comment, EPA re-checked the 2008 1-
hour ozone monitoring data for the Edgewood monitor (AQS ID number 24-
025-1001). Although the 2008 data were complete and available through 
the portal EPA uses to access AQS, EPA learned that the data for 2008 
had not been completely available through the public portal access. The 
2008 1-hour ozone air quality data were and are recorded in EPA's Air 
Quality Data (AQS) system, which is EPA's official repository for air 
quality data to be used for determinations of compliance with a NAAQS. 
In preparation for the February 1, 2012 NPR, on March 3, 2011, EPA 
viewed and retrieved the data in AQS for the 2008 (as well as the 2004 
through 2007, and 2009 through 2010 years) ozone air quality data, and 
used this data in the compliance calculations for the proposed 
rule.\12\ These calculations were provided in the Technical Support 
Document (TSD)--``Determination of Failure to Attain by 2005 and 
Determination of Attainment by 2008 for the 1-Hour Ozone National 
Ambient Air Quality Standards in the Baltimore Nonattainment Area in 
Maryland,'' dated January 26, 2012'' for the proposed rule. See docket 
item EPA-R03-OAR-2011-0680-0008.\13\ After receiving the Sierra Club's 
comment on this issue, EPA re-checked and downloaded a ``Monitor values 
Report'' dated April 16, 2012, for the same 2008 data for the Edgewood 
monitoring site via the public access portal of ``Air Data Mart.'' \14\ 
From an examination of this April 16, 2012 ``Monitor Values Report,'' 
EPA learned that all the data for the ozone monitors in Harford County 
could not be accessed through that portal and that in fact the 2008 
data were in AQS. The April 16, 2012 ``Monitor Values Report'' 
indicated that there were 4850 ``observations'' (data points) in AQS 
for the Edgewood monitoring site which equals the same number of 
observations as for the 202 valid days of monitoring data for the 
Edgewood monitor in 2008 used in the compliance calculations prepared 
for the February 1, 2012 NPR.15 16 Upon investigation EPA 
determined that there was a minor fault in the Air Data Mart public 
access portal system and has corrected the problem. EPA has verified 
that the complete 2008 data can now be accessed via the ``Air Data 
Mart.'' On May 1, 2012, EPA retrieved a copy from the ``Air Data Mart'' 
and placed a copy of the output which displays the 2008

[[Page 34814]]

data in the docket for this action.\17\ EPA has verified that the 2008 
data for the Edgewood monitor now available through the ``Air Data 
Mart'' portal do not affect its determination of attainment for the 
area during any period that included 2008 data because the data 
available on May 1, 2012 via the ``Air Data Mart'' portal is the same 
as that EPA obtained on March 3, 2011 for use in the compliance 
calculations prepared for the February 1, 2012 NPR. These data values 
were thus considered by EPA and do not affect EPA's determinations for 
any attainment period that included the 2008 data. Moreover, EPA has 
also determined here that the area is attaining the standard for the 
most recent three years of complete, quality-assured data, 2009-2011. 
EPA's determination for this most recent period does not include or 
require reliance upon any data for 2008.
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    \12\ There are several levels of access to AQS such as the 
public access portal ``https://www.epa.gov/airdata/ad_rep_mon.html'' and various restricted access portals used by States and 
EPA to enter or correct data and to print reports. EPA used a 
restricted access portal to obtain the 2008 data presented in the 
January 26, 2012, TSD.
    \13\ Refer to the ``Quicklook Criteria Parameters,'' Report 
Request ID 843146, Report Code AMP450, dated March 3, 2011, found in 
Attachment to Appendix A to the TSD dated January 26, 2011.
    \14\ https://www.epa.gov/airdata/ad_rep_mon.html.
    \15\ The required ozone monitoring season in Maryland is 214 
days (from April 1st to October 30th). See Table D-3 to Appendix D 
of 40 CFR Part 58.
    \16\ Refer to the ``Monitor Values Report'' from U.S. EPA Air 
Data https://www.epa.gov/airdata, generated April 16, 2012. A copy of 
this report has been placed in the docket for this action.
    \17\ Refer to the ``Monitor Values Report'' from U.S. EPA Air 
Data https://www.epa.gov/airdata, generated May 1, 2012.
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    EPA recognizes that, for the 1997 ozone NAAQS, the 8-hour ozone 
values in the Baltimore area exceed that NAAQS, and EPA has taken 
action accordingly:
    1. On February 1, 2012, EPA determined that the Baltimore 1997 8-
hour moderate ozone nonattainment area had failed to attain the 1997 8-
hour NAAQS by its applicable attainment date, and the Baltimore area 
was reclassified as a serious ozone nonattainment area.\18\ See 77 FR 
4901, February 1, 2012.
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    \18\ The boundaries of the ``Baltimore'' nonattainment areas are 
the same under both the 1-hour and 1997 8-hour (40 CFF 50.10) NAAQS.
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    2. On April 30, 2012, the EPA Administrator signed a final rule 
that designated areas as nonattainment or attainment for 2008 ozone 
NAAQS, which is codified at 40 CFR 50.15. The Baltimore, MD area was 
included as a nonattainment area. See 77 FR 30088 at 30127, May 21, 
2012.

B. Comments Concerning Effect of Determination of Baltimore Area's 
Failure to Attain the 1-Hour Ozone NAAQS

    Comment 1: The comments express support for EPA's statement that 
the Baltimore area's failure to attain by its statutory 1-hour 
attainment date of November 15, 2005 bears on obligations with respect 
to two 1-hour ozone anti-backsliding requirements whose implementation 
would be triggered by a finding of failure to attain: contingency 
measures for failure to attain and section 185 major stationary source 
fee programs. However, the commenter disagrees with the proposed rule's 
discussion of the effect of the determination on these 1-hour ozone 
anti-backsliding requirements. Specifically, the commenter criticizes 
EPA's statements below:
    1. ``If this determination [of current 1-hour attainment of ozone 
NAAQS] is finalized, then even if EPA finalizes its proposed 
determination that the area failed to attain the 1-hour ozone standard 
by the 2005 deadline, it will not result in any 1-hour ozone 
contingency measure obligations for the area.'' See 77 FR 4940 at 4943.
    2. ``A final determination of failure to attain by the area's 1-
hour attainment date would trigger the 1-hour anti-backsliding 
obligation to implement the penalty fee program under section[s] 
182(d)(3)[,] 182(f) and 185, unless that obligation is terminated.'' 
See 77 FR 4940 at 4943.
    The comments assert that under the South Coast decision EPA is 
obligated to enforce contingency and fee measures in areas that fail to 
attain the 1-hour ozone NAAQS by their attainment dates and is not 
authorized to release the area from its contingency obligations or to 
terminate the obligation to pay the section 185 and other fees
    With respect to the section 185 fee requirement, the commenter 
states that the Baltimore area failed to attain by November 15, 2005, 
and that the Baltimore area did not receive an extension of its 
attainment date (section 181 (a)(5) of the CAA). The commenter contends 
that therefore the area is subject to 185 fees on its major sources of 
VOCs and NOx for the time period 2005-2008.
    Response 1: First, we wish to emphasize, as EPA stated in its 
proposal, that the purpose of this rulemaking notice is to make 
specific air quality determinations regarding whether the Baltimore 
area attained the revoked 1-hour ozone standard. While EPA's proposal 
stated that these determinations bear on 1-hour anti-backsliding 
requirements for contingency measures and CAA section 185 penalty fees, 
this notice does not attempt to address or resolve all the 
implementation issues regarding those requirements. Thus, Sierra Club's 
position that EPA's specific rulemakings on air quality determinations 
must also include resolutions of all anti-backsliding implementation 
issues that may flow from them is incorrect. While EPA recognizes that 
the anti-backsliding requirements for 1-hour ozone contingency measures 
and section 185 fees are linked to the determination of failure to meet 
the attainment deadline for that standard, EPA's rulemakings here 
regarding those determinations do not, and are not required to, dispose 
of all implementation issues for those requirements or for others, such 
as those raised in Sierra Club's comments regarding milestones and 
additional planning.
    Nevertheless, EPA sets forth below its views on points raised by 
the commenter. First, with respect to contingency measures, EPA 
believes that, as EPA explains in its response below in the context of 
the requirement for section 185 penalty fees, it is EPA's final 
determination that the area failed to attain by its attainment date 
that triggers the requirement to implement these. Since EPA is also 
finalizing here its determination that the area is currently attaining 
the 1-hour ozone standard, the obligation to submit or implement any 
measures is suspended. This would be the case, moreover, even if the 
obligation for contingency measures had been triggered at an earlier 
date because the purpose of nonattainment contingency measures for 
failure to attain is to provide for progress towards attainment. Once 
attainment has been reached, this purpose is satisfied. EPA's Clean 
Data Policy and the many Courts which have upheld it, including 
National Resources Defense Council v. EPA, 571 F.3d 1249 (D.C. Cir. 
2009), support this rationale.\19\ Contrary to commenter's complaint, 
EPA is not here unlawfully refusing to effectuate the anti-backsliding 
requirement for contingency measures. Nor is EPA unlawfully releasing 
the area from its anti-backsliding obligation with respect to 
contingency measures. To the contrary, EPA is following the long-
established legal path to determining that the contingency measure 
requirement has been satisfied by a determination, after notice-and-
comment rulemaking, of attainment of the 1-hour ozone standard. In 
making the determination that the area failed to attain the 1-hour 
ozone standard by its applicable attainment date, and concurrently 
making the determination that the area has been attaining the 1-hour 
ozone standard since 2008, and that it continues to attain that 
standard, EPA is enforcing the anti-backsliding requirement. The 
Baltimore area is not backsliding on the 1-hour ozone standard; as EPA 
has determined, the Baltimore area has attained that standard, and 
continues to attain it.
---------------------------------------------------------------------------

    \19\ See also Sierra Club v. EPA, 99 F. 3d 1551 (10th Cir.1996); 
Sierra Club v. EPA, 375 F.3d 537(7th Cir. 2004); and Our Children's 
Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28, 2005) 
(memorandum opinion). See the additional cases listed in footnote 7 
of the February 1, 2012 NPR (77 FR 4940 at 4943).

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

[[Page 34815]]

    EPA also points out that in these circumstances EPA is not required 
to show the causes or amounts of the reductions that have brought the 
area into attainment over the last years. EPA's discussion of the 
contributions that the 1997 ozone controls have made to 1-hour ozone 
attainment was aimed at showing that 1-hour attainment has occurred in 
the context of ongoing reductions for a more stringent ozone standard. 
This showing is not necessary to and is not relied upon in EPA's 
determination that the obligation to submit 1-hour ozone contingency 
measures has been satisfied.
    In its comments, Sierra Club argues that EPA's determination that 
the Baltimore area failed to attain by its 1-hour ozone attainment 
deadline also requires EPA to decide here that it must retroactively 
collect penalties under section 185 for the period before EPA made its 
determination.\20\ We disagree. Neither EPA's determination, nor the 
South Coast case, compels EPA to reach this conclusion or even to 
decide that issue here. EPA intends to address issues regarding 1-hour 
anti-backsliding requirements in future rulemakings on implementation 
of the section 185 requirements for the Baltimore area. Nevertheless, 
we wish to express our preliminary views on Sierra Club's comments 
below. EPA's preliminary views, as set forth below, are not necessary 
to and are independent of its air quality determinations regarding 
nonattainment and attainment that are contained in this notice of final 
rulemaking.
---------------------------------------------------------------------------

    \20\ As explained above and elsewhere in our response to 
comments, EPA disagrees with Sierra Club's contentions regarding 
retroactive collection of fees. As a technical point, however, we 
note that under section 185, the earliest year for which fees could 
ever have been required to be paid is the calendar year following 
the attainment date, November 15, 2005. Thus, it is clear that under 
no circumstances would fees be due for 2005.
---------------------------------------------------------------------------

    Sierra Club's comments quote at length from South Coast, 472 F.3d 
at 902-903. While EPA acknowledges that this decision established that 
section 185 fee requirements were to be included as anti-backsliding 
measures, the Court in that case did not direct any specific means of 
enforcement of these requirements, nor the method for determining 
whether an area failed to attain by its attainment date. That decision 
established only that the section 185 and contingency measure 
requirements were ``applicable.'' It did not establish or even address 
how those requirements were to be implemented.\21\
---------------------------------------------------------------------------

    \21\ Moreover, as EPA explained above, those issues are 
ancillary to the determination of failure to attain the 1-hour ozone 
standard that EPA is finalizing in this rulemaking.
---------------------------------------------------------------------------

    The D.C. Circuit, however, has previously upheld EPA's longstanding 
practice of making determinations of an area's failure to meet 
attainment deadlines solely through notice and comment rulemaking. See 
Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002). In that case, 
which similarly arose from a determination of failure of a 1-hour ozone 
nonattainment area to meet its attainment deadline, the D.C. Circuit 
rejected a litigant's \22\ demand to make the consequences of that 
determination retroactive to the time period before EPA made the 
determination. See Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 
2002).\23\ In that case, Sierra Club similarly argued that EPA's 
overdue determination that the St. Louis 1-hour ozone nonattainment 
area failed to attain by its attainment deadline should apply 
retroactively, and that the Court should require retroactive 
reclassification of the area. The Court rejected Sierra Club's 
contention that an EPA rulemaking was not required to determine a 
failure to attain.
---------------------------------------------------------------------------

    \22\ In that case, also Sierra Club.
    \23\ Sierra Club v. Whitman was discussed and distinguished in a 
recent D.C. Circuit decision that addressed retroactivity in a quite 
different context, where, unlike here, EPA sought to give its 
regulations retroactive effect. National Petrochemical and Refiners 
Ass'n v. EPA. 630 F.3d 145, 163 (D.C. Cir. 2010), rehearing denied 
643 F.3d 958 (D.C. Cir. 2011), cert denied 132 S. Ct. 571 (2011).
---------------------------------------------------------------------------

    ``No matter what the Sierra Club thinks the Clean Air Act or the 
APA required of EPA, the fact remains that `EPA's established practice 
for making a final decision concerning nonattainment and 
reclassification is to conduct a rulemaking under the APA, not to issue 
a letter, a list, or some other informal document.' * * * [citations 
omitted.]'' The Court concluded: ``In other words, if there has not 
been a rulemaking there has not been an attainment determination.'' 285 
F.3d at 66.
    The Court also refused to accept Sierra Club's assertion that the 
Court should compel EPA to give retroactive effect to its 
determination, resulting in reclassification as of the area's 
attainment date. The Court stated: ``Although EPA failed to make the 
nonattainment determination within the statutory time frame, Sierra 
Club's proposed solution only makes the situation worse. Retroactive 
relief would likely impose large costs on the states, which would face 
fines and suits for not implementing air pollution prevention plans 
[earlier], even though they were not on notice at the time.'' 285 F.3d 
at 68.
    While it is true that the Clean Air Act provides that both 
reclassification and penalty fees are consequences of failure to attain 
the ozone standard, the D.C. Circuit in Sierra Club recognized that 
these weighty consequences are not triggered until EPA makes a 
determination, after notice and comment rulemaking, of failure to 
attain. In that case, the Court also rejected the view that adverse 
consequences from the determination should be imposed retroactively, 
especially if it would, as here, subject the states to additional 
burdens caused by retroactive requirements that they were not given 
notice of prior to conclusion of the rulemaking process.
    Several features of our rulemaking for Baltimore provide additional 
grounds for application of a similar position to that taken by the 
court in the St. Louis Sierra Club case. In the case of St. Louis, when 
the question of retroactive application arose, the area remained in 
nonattainment of the 1-hour ozone standard, which was also still the 
only standard in effect at the time of the Court's decision. Here, 
unlike St. Louis, EPA has determined that the Baltimore area is 
currently attaining the 1-hour ozone standard, and thus there is 
significantly less reason to consider imposing retroactive penalties 
that are intended to bring about the attainment that has already 
occurred.
    Sierra Club here argues, unpersuasively, that the South Coast 
opinion supports retroactive imposition of penalties, quoting the 
Court's statement that, unless section 185 requirements were 
applicable, '' a state could go unpenalized without ever attaining even 
the original NAAQS. * * *'' 472 F.3d at 903. Here, however, this 
possibility does not exist. EPA's final determination in this 
rulemaking establishes that the Baltimore area has in fact attained the 
1-hour ozone standard.
    Sierra Club quotes the Court's statement in South Coast that 
``Congress set the penalty deadline well into the future, giving states 
and industry ample notice and sufficient incentives to avoid the 
penalties.'' 372 F.3d at 903. Notice of the existence of penalty 
provisions, however, is not the same as notice that these provisions 
have been triggered. As the D.C. Circuit recognized in Sierra Club v. 
Whitman, only when EPA issues a final notice determining that an area 
has failed to attain by the attainment date can that failure be 
definitively established. The case of Baltimore presents a particularly 
compelling context in which to apply this principle. The Baltimore area 
has been attaining the 1-hour ozone standard since 2008. No 
incentives--and certainly no penalties--are required for the area to

[[Page 34816]]

reach attainment,\24\ a goal that the area has met and preserved. Under 
these circumstances, and based on the D.C. Circuit's and EPA's long 
held position on the issue of retroactive consequences of 
determinations of failure to attain, EPA cannot see a reason to impose 
penalties on sources in Baltimore. As explained above, EPA is 
determining that the area is currently, and has for some time been, 
attaining the 1-hour ozone standard. Thus no anti-backsliding purpose 
is served by retroactive imposition of fees for a failure to meet a 
deadline for a revoked standard, under circumstances that existed years 
ago, which have since been eclipsed by continuous attainment. EPA 
believes that forcing the states and sources to address old penalties 
now would also divert attention and resources from efforts to achieve 
current, forward-looking environmental goals, including the stricter 
2008 ozone standard. In these circumstances, giving retroactive effect 
to EPA's determination of failure to attain the standard here would be 
unreasonable, and it would, as the Court held in Sierra Club v. 
Whitman, ``only mak[e] the situation worse.''
---------------------------------------------------------------------------

    \24\ Sierra Club appears to recognize this, since it does not 
request EPA to impose penalties for the time period after the area 
attained the standard (2010 to the present).
---------------------------------------------------------------------------

    Comment 2: The commenter asserts under South Coast (at 903-904) 
that, ``anti-backsliding'' considerations require that 1-hour 
contingency measures must remain in place even after transitioning away 
from the 1-hour ozone standard. The commenter asserts that because EPA 
has not yet approved contingency measures for failure to attain for the 
Baltimore area, EPA must take remedial action either under 42 U.S.C. 
7410(k)(5) to issue a call for a plan revision for the required 
contingency measures or under 42 U.S.C. 7410(k)(6) to correct its final 
action on the SIP for the Baltimore area by disapproving the submission 
\25\ for lack of the contingency measures. The comments assert that EPA 
must issue a Federal Implementation Plan (FIP) that includes the 
required contingency measures.
---------------------------------------------------------------------------

    \25\ The comments used the phrase ``disapprove the submit.''
---------------------------------------------------------------------------

    Response 2: Even if there existed any outstanding SIP submission 
requirement for contingency measures for failing to meet the deadline 
to attain the revoked 1-hour ozone standard, EPA's final determination 
here that the area has attained the 1-hour ozone standard suspends that 
requirement. Pursuant to EPA's Clean Data Policy, EPA's determination 
that the area has attained the 1-hour ozone standard means that 
attainment has been reached, and thus the purpose of the contingency 
measures is fulfilled.
    Comment 3: The commenters claim that any contingency measures now 
needed must be from ``current emissions'' and that crediting reductions 
from measures in the reasonable further progress (RFP) for 2008 under 
the 1997 ozone NAAQS is not supported by any statutory authority. In 
addition, the commenters claim that use of the RFP reductions in the 
RFP plan for 2008 is arbitrary for two reasons:
    The commenters claim that the 2008 RFP plan does not provide enough 
reductions of VOC emissions and that EPA cannot rely on substituting 
NOx reductions because there is no direct NOx to VOC trade-off. The 
comments assert that the 1-hour contingency requirement is 13.77 tons 
per day (tpd) of VOC reductions whereas the RFP plan required 2.05 tpd 
of VOC reductions to leave a shortfall of 11.72 tpd of VOC reductions. 
The comments claim the contingency plan cannot rely on the ``1997'' 
ozone NAAQS \26\ requiring more NOX reductions than the 1-
hour contingency requirement ``because there is no such thing as a 
direct NOx to VOCs trade off'' and that ozone formation is more 
complicated than that. The comments further contend because EPA has not 
demonstrated that the RFP reductions have been achieved EPA cannot 
credit them towards the contingency requirement.
---------------------------------------------------------------------------

    \26\ See 40 CFR 50.10.
---------------------------------------------------------------------------

    Response 3: EPA disagrees with this comment. EPA believes that 
EPA's determination that the Baltimore area attained the 1-hour ozone 
NAAQS in 2008 and has continued to attain this NAAQS suspends the 
requirement for submission of 1-hour ozone contingency measures. EPA's 
final determination of attainment for the 1-hour ozone standard removes 
the need at this time to further address any comments or objections 
related to the contingency measure requirement. EPA's determination 
that the area has been attaining the 1-hour ozone standard since 2008, 
and continues to attain the standard, provides independent and 
sufficient grounds for concluding that the 1-hour contingency measure 
anti-backsliding requirement is satisfied. No additional reductions 
from contingency measures--or any other measures--are needed to bring 
about attainment of the 1-hour ozone standard or reasonable progress 
toward that attainment, which has already been achieved.
    Thus it is not necessary for the purpose of finalizing this notice 
to address the commenter's critique of EPA's discussion, in its 
proposed rulemaking, of emissions reductions that may have contributed 
to attainment. In the February 1, 2012 NPR, EPA included a discussion 
of emissions reductions that had occurred in Baltimore in the period 
after the area's 1-hour ozone attainment deadline. EPA's discussion 
described certain emissions reductions that served the same function as 
contingency measures would have done, whether or not the measures that 
brought about those reductions had formally been approved as 
contingency measures. The commenter addresses EPA's discussion and 
criticizes its analysis of post-2005 reductions. While EPA disagrees 
with the commenter's views of these reductions, and believes that they 
reflect a misunderstanding of the CAA requirements, EPA finds it 
unnecessary to respond specifically to them in this rulemaking. The 
purpose of contingency measures is to bring about attainment, and EPA's 
determination that the area has attained the 1-hour ozone standard 
shows that this purpose has been achieved. In these circumstances, it 
is not necessary to reach agreement on calculations regarding the 
emissions reductions that brought the area into attainment. Attainment 
of the 1-hour ozone standard has been reached, and thus no contingency 
measures are required to reach attainment. This is all the more true 
for an area subject to ongoing implementation of additional control 
measures for the 1997 8-hour ozone standard. The decision of the DC 
Circuit in South Coast did not address or invalidate the Clean Data 
Policy, which was upheld by that Circuit in Natural Resources Defense 
Council v. EPA.
    Comment 4: The commenter claims that the contingency measures 
should have come into place in 2005 when the area was violating, and, 
therefore, EPA cannot use the Clean Data Policy to suspend the 
requirement because, the commenter argues: (1) The FIP clock should 
have long since passed and a clean data determination cannot excuse EPA 
from its FIP obligation; (2) to use the Clean Data Policy would 
effectively remove the contingency measure requirement and create a 
backslide by removing a requirement that should have been in place 
before the clean data determination. The commenter claims that the 
Court in South Coast precludes EPA from removing requirements that

[[Page 34817]]

were required before this clean data determination.\27\
---------------------------------------------------------------------------

    \27\ The comments contend that the Baltimore area is still 
experiencing ``exceedances'' of the 1-hour ozone NAAQS. An 
exceedance of the standard does not constitute a violation of that 
standard. EPA responses elsewhere in this document show that the 1-
hour ozone NAAQS defines an area as attaining the standard if it has 
fewer than or equal to 3.1 expected exceedances over any consecutive 
3-year period. As EPA has shown, for the past four years, since 
2008, the Baltimore area has not monitored a violation of the 1-hour 
ozone NAAQS.
---------------------------------------------------------------------------

    Response 4: As set forth in EPA's response to comments above, prior 
to this final rulemaking EPA had not determined that the area failed to 
attain by its attainment deadline, and thus, contrary to the 
commenter's contention, no contingency measures for failure to attain 
had been triggered. See Sierra Club v. Whitman, cited above in EPA's 
Response to Comment. Moreover, as explained elsewhere in this notice 
and in EPA's proposed rulemaking, EPA is also making here a final 
determination that the area has attained the 1-hour ozone standard. 
This determination establishes that the purpose of the contingency 
measures has been fulfilled. This is the case even if it is determined 
that the area previously failed to attain by the applicable deadline. A 
determination that the area has attained and continues to attain the 
standard, whenever it is issued, logically means that no contingency 
measures need be adopted to reach attainment. Thus there is no legal or 
common sense justification for a retroactive imposition of ozone 
contingency measures intended to achieve attainment of the revoked 1-
hour ozone standard, a goal that has already been reached.
    EPA's prior rulemakings demonstrate that its interpretation under 
the Clean Data Policy applies after revocation of the 1-hour ozone 
standard, and after the South Coast decision (See 74 FR 13166 (March 
26, 2009) and 75 FR 6570 (February 10, 2010). Moreover, since there was 
and is no state obligation to adopt one- hour contingency measures, 
there is no FIP obligation. Because no SIP deficiency exists with 
respect to 1-hour ozone contingency measures, no FIP requirement based 
upon it exists either. Contrary to commenter's claim, EPA's 
interpretation under the Clean Data Policy does not act to remove an 
anti-backsliding requirement; rather, as the Courts have held, even 
when the 1-hour ozone standard was in effect, it is an interpretation 
that the requirement is satisfied by attainment. Sierra Club v. EPA 
(10th Cir. 1996). Contingency measures have no meaning while an area is 
attainment.

C. Comments Concerning Revised State Implementation Plan for 1-Hour 
Ozone

    Comment 1: The commenter asserts that section 182 of the CAA 
requires EPA to require Maryland to submit a ``revised SIP'' for ozone 
for the Baltimore area. To support this proposition, the commenter 
cites the opening paragraph of section 182(d).\28\ The commenter states 
that the plans required by sections 182(c) and (d) of the CAA include 
but are not limited to ``enhanced monitoring, attainment and reasonable 
further progress \29\ demonstrations, NOx control, and contingency 
provisions, as well as the enforcement of fees under ``section 
182(d)(3)'' (that is the section 185 fees).
---------------------------------------------------------------------------

    \28\ This paragraph states: ``Each State in which all or part of 
a Severe Area is located shall, with respect to the Severe Area, 
make the submissions described under subsection (c) [i.e., section 
182(c)] of this section (relating to Serious Areas), and shall also 
submit the revisions to the applicable implementation plan 
(including the plan items) described under this subsection [section 
182(d)].'' (with clarifying citations added)
    \29\ ``RFP'' hereafter.
---------------------------------------------------------------------------

    Response 1: EPA disagrees that Maryland must submit additional SIP 
revisions for attainment and reasonable further progress 
demonstrations, NOx control, and contingency provisions as a 
consequence of EPA's determination that the Baltimore area failed to 
attain the revoked 1-hour ozone standard by November 15, 2005. EPA does 
not agree with commenter's view regarding requirements for a severe 
nonattainment area that fails to meet its attainment deadline to revise 
its SIP to provide for additional RFP demonstrations and contingency 
measures under CAA section 182. Nor does EPA believe that section 
181(b)(4) of the CAA imposes any requirements for the revoked 1-hour 
ozone standard, because no further 1-hour ozone planning requirements 
under that provision or any other, applicable to an area such as 
Baltimore, were preserved in anti-backsliding.
    After a standard has been revoked, there is no requirement to 
revise an initial attainment demonstration for a severe area after the 
area fails to attain by the statutorily applicable attainment date.\30\ 
We disagree with the commenter's claim that EPA's determination here 
triggers the Baltimore area's obligations to adopt and submit a broad 
variety of additional SIP revisions for the revoked 1-hour ozone 
standard. A plan revision under section 181(b)(4) of the CAA is not an 
applicable anti-backsliding requirement under EPA's anti-backsliding 
regulations. As EPA has explained in other rulemakings, only those 
anti-backsliding requirements that were specifically retained by the 
anti-backsliding rule, 40 CFR 51.905, and by the decision in South 
Coast are applicable, and others cited by the commenter are not 
included. See 76 FR 82133 at 82139-140 (December 30, 2011). As EPA 
stated in its proposal, the only anti-backsliding measures that pertain 
to this determination of failure to meet the 1-hour deadline are 1-hour 
contingency measures for failure to attain and section 185 penalty 
fees.
---------------------------------------------------------------------------

    \30\ As noted in the February 1, 2012 NPR, EPA has fully 
approved into the Maryland SIP a 1-hour ozone attainment 
demonstration, reasonably available control measures and reasonable 
further progress (RFP) plans, and RFP contingency measures for the 
Baltimore area. See 77 FR 4940 at 4942-4943, February 1, 2012.
---------------------------------------------------------------------------

    Moreover, as set forth above, under EPA's Clean Data Policy, EPA's 
determination that the area is currently attaining the 1-hour ozone 
standard obviates the need for submission of any planning requirements 
related to attainment of the standard. Section 181(b)(4) of the CAA, 
cited by the commenter, was not preserved as an anti-backsliding 
requirement for the 1-hour ozone standard. In the February 1, 2012 NPR, 
EPA stated that its determination ``relates [solely] to effectuating 
the anti-backsliding requirements that are specifically retained.'' See 
77 FR 4940 at 4942, February 1, 2012.
    Comment 2: The comments state that if EPA maintains that the 
Baltimore area has attained the 1-hour ozone standard, EPA must require 
a new SIP under ``42 U.S.C. Sec.  7505s(a)'' \31\ which would provide 
for ``the maintenance of the national primary ambient air quality 
standard for such area in the area concerned for at least 10 years 
after the redesignation.''
---------------------------------------------------------------------------

    \31\ Based upon context, EPA concludes the citation to Sec.  
7505s(a) in the comment letter is a scrivener's error and should be 
to 42 U.S.C. section 7505a(a) (section 175A(a)).
---------------------------------------------------------------------------

    Response 2: EPA disagrees with the comment for several reasons. 
Section 175A of the CAA requires that a state submit a ``maintenance 
plan \32\'' for the area for which redesignation to attainment is 
sought.
---------------------------------------------------------------------------

    \32\ A maintenance plan is a SIP revision to provide for 
maintenance of the NAAQS in question for a period of ten years after 
the area is redesignated to attainment. See, 42 U.S.C. 7505a(a).
---------------------------------------------------------------------------

    Section 175A of the CAA applies in conjunction with a state's 
request to redesignate an area from nonattainment to attainment 
pursuant to section 107(d)(3) of the CAA. The maintenance plan referred 
to takes effect after EPA approves the area's redesignation to 
attainment. Until a state submits such a request for redesignation of a 
nonattainment area, section 175A by its

[[Page 34818]]

own terms does not require submission of any SIP revision.
    Section 175A(a) of the CAA provides that each state which submits a 
request for redesignation of an area to attainment ``shall also 
submit'' a maintenance plan under section 175A of the CAA. In context 
``shall also submit'' means that the state must submit a maintenance 
plan under section 175A only when it requests redesignation under 
section 107(d)(3)(E) of the CAA. Thus section 175A compels submission 
of a maintenance plan if and only if the state submits a request for 
redesignation of a nonattainment area to attainment. Sections 
107(d)(3)(E) and 175A of the CAA do not require submission of a request 
to redesignate an area to attainment, nor do they require submission of 
a maintenance plan in the absence of a redesignation request. As set 
forth in EPA's responses above, EPA no longer redesignates areas for 
the revoked 1-hour ozone standard.
    EPA no longer redesignates areas to attainment of the 1-hour ozone 
NAAQS because EPA revoked that NAAQS on June 15, 2005, as a result of 
implementation of the more protective 1997 ozone NAAQS. EPA notes that 
the Baltimore area is designated as serious nonattainment for the 1997 
ozone NAAQS and has been designated classified as moderate 
nonattainment for the 2008 ozone NAAQS.\33\ For all the reasons set 
forth above, no requirement for a 1-hour ozone maintenance plan under 
section 175A of the CAA is applicable to the Baltimore area.
---------------------------------------------------------------------------

    \33\ Subsequent to June 15, 2005, EPA has issued a revised ozone 
NAAQS (the 2008 ozone NAAQS codified at 40 CFR 50.15) for which the 
level of the standard, 0.075 ppm--lower than the 0.08 ppm of the 
1997 ozone NAAQS. A May 21, 2012 (77 FR 30088 at 30127) final rule 
designated and classified the Baltimore area as moderate 
nonattainment under the 2008 ozone NAAQS.
---------------------------------------------------------------------------

IV. Final Actions

    EPA is making two separate and independent determinations related 
to the Baltimore 1-hour ozone nonattainment area. These determinations 
are based upon complete, quality-assured and certified ozone monitoring 
data.

A. Determination of Failure To Attain the 1-Hour Ozone NAAQS by the 
Applicable Attainment Date

    With respect to the 1-hour ozone standard, and pursuant to EPA's 
authority to ensure implementation of 1-hour ozone anti-backsliding 
requirements and under CAA section 301, EPA is determining that data 
for 2003-2005 show that the Baltimore area previously failed to attain 
the 1-hour ozone standard by its applicable November 15, 2005 
attainment deadline.

B. Determination of Current Attainment of the 1-Hour Ozone NAAQS

    EPA is determining that the Baltimore area is currently attaining 
the 1-hour ozone standard. EPA's determination is based on the most 
recent three years of complete, quality-assured and certified data for 
2009-2011. In addition complete, quality assured and certified data 
show that the Baltimore area has attained since the 2006-2008 
monitoring period and for every three-year period since that time. 
Pursuant to EPA's interpretation, as set forth in its Clean Data Policy 
and the cases and regulations that embody it, EPA has determined that 
the Baltimore area is no longer obligated to submit and implement the 
1-hour ozone contingency measure requirement of CAA section 172(c)(9).

V. Statutory and Executive Order Reviews

A. General Requirements

    This action makes determinations of attainment and nonattainment 
based on monitored air quality data and does not impose additional 
requirements beyond those imposed by statute or regulation. For that 
reason, this action:
     Is not ``significant regulatory actions'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not significant regulatory actions subject to Executive 
Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the 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, these final actions regarding attainment of 
the 1-hour ozone NAAQS in the Baltimore area do not have Tribal 
implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because the SIP is not approved to apply in Indian 
country located in the state, and EPA notes that it will not impose 
substantial direct costs on Tribal governments or preempt Tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 13, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action regarding determinations concerning attainment of 
the 1-hour ozone NAAQS in the Baltimore area 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

[[Page 34819]]

reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

    Dated: May 30, 2012.
W.C. Early,
Acting Regional Administrator, Region III.

    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 52.1076 is amended by adding paragraph (y) to read as 
follows.


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

* * * * *
    (y) Determination--EPA has determined that, as of July 12, 2012, 
the Baltimore 1-hour ozone nonattainment area has attained the 1-hour 
ozone standard and that this determination obviates the requirement for 
Maryland to submit for the Baltimore area the 1-hour ozone contingency 
measure requirements of section 172(c)(9) of the Clean Air Act.

0
3. Section 52.1082 is amended by adding paragraphs (f) and (g) to read 
as follows.


Sec.  52.1082  Determinations of attainment.

* * * * *
    (f) Based upon EPA's review of the air quality data for the 3-year 
period 2003 to 2005, EPA determined, as of July 12, 2012, that the 
Baltimore 1-hour ozone nonattainment area did not attain the 1-hour 
ozone standard as of its applicable 1-hour ozone attainment date of 
November 15, 2005.
    (g) Based on 2009-2011 complete, quality-assured ozone monitoring 
data at all monitoring sites in the Baltimore 1-hour ozone 
nonattainment area, EPA determined, as of July 12, 2012, that the 
Baltimore 1-hour ozone nonattainment area has attained the 1-hour ozone 
standard.

[FR Doc. 2012-14141 Filed 6-11-12; 8:45 am]
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