**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Parts 52 and 81**

**\[EPA-R03-OAR-2008-0109; FRL- \]**

**Determination of Attainment for the Ozone National Ambient Air Quality
Standards for Nonattainment Areas in Delaware, District of Columbia,
Maryland, Pennsylvania, and Virginia**

**AGENCY**: Environmental Protection Agency (EPA).

**ACTION:** Proposed rule.

**SUMMARY:** EPA is proposing to determine that two severe 1-hour ozone
nonattainment areas, Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD and
Metropolitan Washington, DC-MD-VA, attained the 1-hour ozone National
Ambient Air Quality Standards (NAAQS) by the applicable attainment date
of November 15, 2005. EPA also proposes to find that these areas are not
subject to the imposition of the penalty fees under section 185 of the
Clean Air Act (CAA). This proposal is based on three years of complete,
quality-assured ambient air quality monitoring data for 2003 through
2005 ozone seasons. This proposed determination of attainment is not a
redesignation to attainment for these severe areas for which air quality
monitoring data indicates attainment of the standard. EPA is proposing
this action to fulfill obligations to make such determinations under the
CAA.

**DATES:** Written comments must be received on or before \[[insert date
30 days from date of publication]{.underline}\].

**ADDRESSES:** Submit your comments, identified by Docket ID Number
**EPA-R03-OAR-2008-0109** by one of the following methods:

A.  [www.regulations.gov]{.underline}. Follow the on-line instructions
    for submitting comments.

B. E-mail: Fernandez.cristina@epa.gov

C. Mail: EPA-R03-OAR-2008-0109, Cristina Fernandez, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

D. Hand Delivery: At the previously-listed EPA Region III address. Such
deliveries are only accepted during the Docket=s normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.

***Instructions:*** Direct your comments to Docket ID No.
**EPA-R03-OAR-2008-0109**. EPA\'s policy is that all comments received
will be included in the public docket without change, and

may be made available online at [www.regulations.gov]{.underline},
including any personal information provided, unless the comment includes
information claimed to be Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute. Do not
submit information that you consider to be CBI or otherwise protected
through [www.regulations.gov]{.underline} or e-mail. The
[www.regulations.gov]{.underline} website is an Aanonymous access@
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through
[www.regulations.gov]{.underline}, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA may
not be able to consider your comment. Electronic files should avoid the
use of special characters, any form of encryption, and be free of any
defects or viruses.

***Docket:*** All documents in the electronic docket are listed in the
[www.regulations.gov]{.underline} index. Although listed in the index,
some information is not publicly available, i.e., 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 in
[www.regulations.gov]{.underline} or in hard copy 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 e-mail at cripps.christopher@epa.gov.

**SUPPLEMENTARY INFORMATION:**

Throughout this document, "we," "us," and "our" refer to EPA.

**I. What Actions Are EPA Proposing?\
**EPA is proposing two actions for both the
Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD 1-hour ozone nonattainment
area (hereafter "the Philadelphia area") and the Metropolitan
Washington, DC-MD-VA 1-hour ozone nonattainment area (hereafter "the
Washington area").

For the Philadelphia area, EPA is proposing to determine that this area
attained the 1-hour ozone NAAQS by its attainment date, November 15,
2005. Because EPA is proposing to find that this area has attained the
1-hour ozone NAAQS by its applicable attainment date, we also propose to
find that this area is not subject to the imposition of the section 185
penalty fees.

For the Washington area, EPA is proposing to determine that this area
attained the 1-hour ozone NAAQS by its attainment date, November 15,
2005. Because EPA is proposing to find that this area has attained the
1-hour ozone NAAQS by its applicable attainment date, we also propose to
find that this area is not subject to the imposition of the section 185
penalty fees.

Under Section 181(b)(2) of the CAA, EPA must determine whether ozone
nonattainment areas have attained the ozone NAAQS by their attainment
date. In the case of the Philadelphia and Washington areas these
determinations are based upon air quality monitoring data for the 2003
through 2005 ozone seasons and must be based on the area's design value
as of the attainment date.[^1]

This proposed determination of attainment is not a redesignation to
attainment action for these severe areas. Nor is it a determination as
to whether either the Philadelphia area or Washington area has continued
to maintain attainment with the NAAQS after November 15, 2005.

**II. What Is the Background for These Proposed Actions?**

**A. What Are the Geographical Boundaries of the Philadelphia and
Washington Areas?**

**[1. What Are the Geographical Boundaries of the Philadelphia area
1-Hour Severe Ozone Nonattainment Area?]{.underline}**

The Philadelphia 1-hour severe ozone nonattainment area consists of:
Cecil County, Maryland; Kent and New Castle Counties in Delaware;
Burlington, Camden, Cumberland, Gloucester, Mercer, and Salem Counties
in New Jersey; and, Bucks, Chester, Delaware, Montgomery, and
Philadelphia Counties in Pennsylvania.

**[2. What Are the Geographical Boundaries of the Washington area 1-hour
severe ozone nonattainment area?]{.underline}**

The Washington 1-hour severe ozone nonattainment area consists of the
District of Columbia (the District), a Northern Virginia portion
(Arlington, Fairfax, Loudoun, Prince William, and Stafford Counties and
the cities of Alexandria, Falls Church, Fairfax, Manassas, and Manassas
Park), and Calvert, Charles, Frederick, Montgomery, and Prince George's
Counties in Maryland.

**B. What is the History of the Ozone Designations and Classifications
and 1-Hour Ozone Requirements for the Philadelphia and Washington 1-Hour
Ozone Nonattainment Areas?**

When the CAA Amendments were enacted in 1990, each area of the country
that was designated nonattainment for the 1-hour ozone NAAQS, including
the Philadelphia and Washington areas, were classified by operation of
law as marginal, moderate, serious, severe, or extreme depending on the
severity of the area\'s air quality problem. [See]{.underline}, CAA
sections 107(d)(1)(C) and 181(a). The Philadelphia 1-hour zone
nonattainment area was classified as "severe-15" with a statutory
attainment date of November 15, 2005. [See]{.underline}, 56 FR 56694,
November 6, 1991. The Washington area was designated nonattainment and
initially classified "serious" for the 1-hour ozone NAAQS pursuant to
section 181(a) of the CAA, but was later reclassified as "severe-15"
with a statutory attainment date of November 15, 2005, due to its
failure to attain by the November 15, 1999 attainment date for serious
areas. [See]{.underline}, 56 FR 56694, November 6, 1991 and 68 FR 3410,
January 24, 2003.

**C. What is the History of the 1-Hour Ozone Requirements under EPA's
Anti-Backsliding Rule?**

In an April 30, 2004 final rule (69 FR 23858), EPA designated and
classified most areas of the country under the 8-hour ozone NAAQS
promulgated in 40 CFR 50.10. On April 30, 2004, EPA also issued a final
rule (69 FR 23951) entitled "Final Rule To Implement the 8-Hour Ozone
National Ambient Air Quality Standard --- Phase 1" (Phase 1 Rule). Among
other matters, this rule revoked the 1-hour ozone NAAQS in the
Philadelphia and Washington areas (as well as most other areas of the
country), effective June 15, 2005. [See]{.underline}, 40 CFR 50.9(b); 69
FR at 23996; and 70 FR 44470, August 3, 2005. This Phase 1 Rule also set
forth how anti-backsliding principles will ensure continued progress
toward attainment of the 8-hour ozone NAAQS by identifying which 1-hour
requirements remain applicable in an area after revocation of the 1-hour
ozone NAAQS. Among the requirements not retained were the section 185
requirements for 1-hour severe or extreme nonattainment areas that fail
to attain the 1-hour ozone NAAQS by the applicable 1-hour attainment
date and the requirement to implement contingency measures for failure
to attain the 1-hour ozone NAAQS by the applicable attainment date.
[See]{.underline}, 69 FR 23951, April 30, 2004, and 70 FR 30592, May 26,
2005.

On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit (the Court) vacated EPA=s Phase 1 Implementation Rule
for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). [South
Coast Air Quality Management Dist. v. EPA]{.underline}, 472 F.3d 882
(D.C. Cir. 2006). Subsequently, in [South Coast Air Quality Management
Dist. v. EPA,]{.underline} 489 F.3d 1295 (D.C. Cir. 2007), in response
to several petitions for rehearing, the Court clarified that the Phase 1
Rule was vacated only with regard to those parts of the rule that had
been successfully challenged. With respect to the challenges to the
anti-backsliding provisions of the rule, the Court vacated three
provisions that would have allowed States to remove from the SIP or to
not adopt three 1-hour obligations once the 1-hour ozone NAAQS was
revoked: (1) nonattainment area new source review (NSR) requirements
based on an area=s 1-hour nonattainment classification; (2) section 185
requirement for 1-hour severe or extreme nonattainment areas that fail
to attain the 1-hour ozone NAAQS by the 1-hour attainment date; and (3)
measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of
the CAA, on the contingency of an area not making reasonable further
progress toward attainment of the 1-hour NAAQS or for failure to attain
that NAAQS. The Court clarified that 1-hour conformity determinations
are not required for anti-backsliding purposes.

The provisions in 40 CFR 51.905(a)-(c) remain in effect and areas must
continue to meet those anti-backsliding requirements. However, the three
provisions noted previously, which are specified in 51.905(e), were
vacated by the Court. As a result, States must continue to meet the
obligations for 1-hour NSR; 1-hour contingency measures; and, for severe
and extreme areas, the obligations related to the section 185
requirement. Currently, EPA is developing two proposed rules to address
the Court's vacatur and remand with respect to these three requirements.
We will address in this proposed rule how the 1-hour obligations that
currently continue to apply under EPA's anti-backsliding rule (as
interpreted by the Court) apply where EPA has made a determination that
the area attained the 1-hour ozone NAAQS by its attainment date.

**D. What are the Section 185 Requirements Pertinent to this Proposed
Action?**

Section 185(a) of the CAA states that for a severe or extreme ozone
nonattainment a State must collect fees on certain stationary sources of
air pollution if the area "has failed to attain the national primary
ambient air quality standard for ozone by the applicable attainment
date."

**E. What Are the Data Rounding Conventions for the 1-H****our Ozone
NAAQS?**

Although the 1-hour ozone NAAQS as promulgated in 40 CFR 50.9 includes
no discussion of specific data handling conventions, 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, which is 0.12 parts
per million (ppm). 40 CFR 50.9(a) states that: "The level of the
national 1-hour primary and secondary ambient air quality standards for
ozone ... is 0.12 parts per million. ... The standard is attained when
the expected number of days per calendar year with maximum hourly
average concentrations Pennsylvania 0.12 parts per million ... is equal
to or

less than 1, as determined by appendix H to this part."

We have clearly communicated the data handling conventions for the
1-hour ozone NAAQS in guidance documents. As early as 1979, EPA issued
guidance that the level of our NAAQS dictates the number of significant
figures to be used in determining whether the standard was exceeded. The
stated level of the standard is taken as defining the number of
significant figures to be used in comparisons with the standard. For
example, a standard level of 0.12 ppm means that measurements are to be
rounded to two decimal places (0.005 rounds up), and, therefore, 0.125
ppm is the smallest concentration value in excess of the level of the
standard. [See]{.underline}, "Guideline for the Interpretation of Ozone
Air Quality Standards," EPA-450/4-79-003, OAQPS No. 1.2-108, January
1979. EPA has consistently applied the rounding convention in this 1979
guideline. For example, [see]{.underline}, 68 FR 19106 at 19111, April
17, 2003; 68 FR 62041 at 62043, October 31, 2003; and, 69 FR 21717 at
21719, April 22, 2004.

**F. How Do We Make Attainment Determinations?**

Section 181(b)(2)(A) requires the Administrator to determine after the
attainment date whether ozone nonattainment areas have attained the
NAAQS. This provision states: "Within 6 months following the applicable
attainment date (including any extension thereof) for an ozone
nonattainment area, the Administrator shall determine, based on the
area's design value (as of the attainment date), whether the area
attained the standard by the date." Although section 181(b)(2)(A) states
that the determination of attainment status be based on the area\'s
"design value," EPA interprets this provision generally to refer to
EPA\'s methodology for determining attainment status. That is, EPA
determines attainment status under the 1-hour ozone NAAQS on the basis
of the annual average number of expected exceedances of the NAAQS over
the 3-year period up to, and including, the attainment date.
[See]{.underline}, 60 FR 3349, January 17, 1995. [See,
also]{.underline}, "General Preamble for the Implementation of Title I
of the Clean Air Act Amendments of 1990," 57 FR 13498 at 13506, April
16, 1992 (the "General Preamble").\

We will determine whether an area\'s air quality is meeting the NAAQS
for purposes of sections 181(b)(2) based upon data that has been
collected and quality-assured in accordance with 40 CFR part 58, and
recorded in EPA's Air Quality System (AQS) database, (formerly known as
the Aerometric Information Retrieval System (AIRS)).

The 1-hour ozone NAAQS is 0.12 ppm, not to be exceeded on average more
than 1 day per year averaged over any 3-year period. [See]{.underline},
40 CFR 50.9 and appendix H to 40 CFR part 50. To account for missing
data, the procedures found in appendix H to 40 CFR part 50 are used to
adjust the actual number of monitored exceedances of the standard to
yield the annual number of expected exceedances ("expected exceedance
days") at an air quality monitoring site. Under our policies, we
determine if an area has attained the 1-hour ozone NAAQS by calculating,
at each monitor, the average expected number of days over the standard
per year (i.e., "average number of expected exceedance days") during the
applicable 3-year period. [See]{.underline}, generally the General
Preamble, 57 FR at 13506, April 16, 1992 and Memorandum from D. Kent
Berry, Acting Director, Air Quality Management Division, EPA, to
Regional Air Office Directors; "Procedures for Processing Bump Ups and
Extensions for Marginal Ozone Nonattainment Areas," February 3, 1994.
While the latter is explicitly applicable only to marginal areas, the
general procedures for evaluating attainment in terms of the average
number of expected exceedance days during the applicable 3-year period
in this memorandum apply regardless of the initial classification of an
area because all findings of attainment are made pursuant to the same
CAA requirements in section 181(b)(2).

As noted previously, the applicable attainment date under the 1-hour
ozone NAAQS for both the Philadelphia and Washington areas was November
15, 2005. Under these requirements, for severe ozone nonattainment areas
with a statutory attainment date of November 15, 2005, we have based our
proposed determination of attainment of the 1-hour ozone NAAQS by the
applicable attainment date on the average number of expected exceedance
days per year for the period 2003 though 2005 to determine whether the
area met its applicable attainment date under section 181 of the CAA. We
have reviewed this data to determine the area\'s air quality status in
accordance with 40 CFR 50.9, and EPA policy guidance as discussed in the
preceding paragraphs and in the previous discussion on rounding
conventions elsewhere in the is document.

**III. What is Basis for EPA\'s Proposed** **Determinations of
Attainment under Section 181?**

**A**. **How Did We Determine That the Philadelphia and Washington Areas
Attained the 1-Hour Ozone NAAQS by the Applicable Attainment Date?**

From 2003 through 2005, ambient air quality for ozone was monitored on a
continuous basis at 18 monitoring sites within the Philadelphia area and
at 17 monitoring sites in the Washington area. As noted previously, the
applicable attainment date for both the Philadelphia and Washington
severe 1-hour ozone nonattainment areas was November 15, 2005. We are
evaluating attainment based on the data from 2003 through 2005.

**[1. Summary of the Philadelphia Area's Ozone Data for 2003 to
2005]{.underline}**

During the entire 2003 to 2005 period, 18 ozone monitoring stations in
the Philadelphia area were in operation. One other monitor discontinued
operations in 2003.[^2] Table 1.A summarizes the ozone data collected at
the 18 ozone monitoring stations during the 2003 to 2005 period and
included in AQS for the Philadelphia area. This data has been quality
assured and is recorded in AQS. The Philadelphia area States use the AQS
as the permanent database to maintain its data and quality assure the
data transfers and content for accuracy. We have used the established
rounding conventions set forth in our guidance documents and
regulations.

  --------------- ---------------------- ----------- ------------ ---------- ---------- ---------------
  **Table 1.A \--                                                                       
  Average Number                                                                        
  of Ozone                                                                              
  Expected                                                                              
  Exceedance Days                                                                       
  per Year by                                                                           
  Monitors in the                                                                       
  Philadelphia                                                                          
  area 2003 to                                                                          
  2005**                                                                                

  **Monitor                                          **Number of                        **Average
  Information**                                      Expected                           Number of
                                                     Exceedance                         Expected
                                                     Days**                             Exceedance Days
                                                                                        Per Year**

  **State**       **Monitor**            **AQS ID    **2003**     **2004**   **2005**   **2003-05**
                                         No.**                                          

  DE              Killens Pond Rd, Kent  100010002   1.0          0.0        0.0        0.3
                  County                                                                

  DE              Lums Pond State Park,  100031007   1.0          0.0        2.0        1.0
                  New Castle County                                                     

  DE              Brandywine Creek State 100031010   0.0          0.0        0.0        0.0
                  Park, New Castle                                                      
                  County                                                                

  DE              Bellevue State Park,   100031013   0.0          0.0        0.0        0.0
                  New Castle County                                                     

  MD              Fairhill, Cecil County 240150003   0.0          0.0        2.0        0.7

  NJ              Copewood E. Davis Sts, 340070003   0.0          0.0        0.0        0.0
                  Camden                                                                

  NJ              Ancora State Hospital, 340071001   2.0          0.0        0.0        0.7
                  Camden County                                                         

  NJ              Lincoln Ave.&Highway   340110007   1.0          0.0        1.0        0.7
                  55, Vineland,                                                         
                  Cumberland County                                                     

  NJ              Shady Lane Rest Home,  340150002   2.0          0.0        0.0        0.7
                  Clarksboro, Gloucester                                                
                  County                                                                

  NJ              Rider College, Mercer  340210005   0.0          0.0        0.0        0.0
                  County                                                                

  PA              Rockview Lane,         420170012   0.0          0.0        1.0        0.3
                  Bristol, Bucks County                                                 

  PA              New Garden Airport -   420290100   0.0          0.0        1.0        0.3
                  Toughkenamon, Chester                                                 
                  County                                                                

  PA              Front St & Norris St,  420450002   0.0          0.0        1.1        0.4
                  Chester, Delaware                                                     
                  County                                                                

  PA              State Armory,          420910013   0.0          0.0        0.0        0.0
                  Norristown, Montgomery                                                
                  County                                                                

  PA              1501 E Lycoming Ave    421010004   0.0          0.0        0.0        0.0
                  AMS Lab, Philadelphia                                                 

  PA              Roxy Water Pump Sta,   421010014   0.0          0.0        0.0        0.0
                  Philadelphia                                                          

  PA              Grant-Ashton Roads, NE 421010024   0.0          0.0        2.0        0.7
                  Airport, Philadelphia                                                 

  PA              Amtrak, 5917 Elmwood   421010136   0.0          0.0        0.0        0.0
                  Avenue, Philadelphia                                                  
  --------------- ---------------------- ----------- ------------ ---------- ---------- ---------------

Source: EPA AQS Database.

As shown in Table 1.A, the average number of expected exceedance days
per year is less than or equal to 1.0 at all of the sites. Therefore, we
propose to find that the Philadelphia area attained the 1-hour ozone
NAAQS by November 15, 2005, which was the applicable attainment date
under the 1-hour ozone NAAQS for this nonattainment area.

**[2. Summary of the Washington Area's Ozone Data for 2003 to
2005]{.underline}**

During the entire 2003 to 2005 period, there were 17 ozone monitoring
stations in the Washington area were in operation. One other monitor had
discontinued operations in 2003.[^3] Table 1.B summarizes the ozone data
collected at the ozone monitoring stations during the 2003 to 2005
period and included in AQS for the Washington area. This data has been
quality assured and is recorded in AQS. The Washington area States use
the AQS as the permanent database to maintain its data and quality
assure the data transfers and content for accuracy. We have used the
established rounding conventions set forth in our guidance documents and
regulations.

  --------------- ---------------------- ----------- ------------ ---------- ---------- ---------------
  **Table 1.B \--                                                                       
  Average Number                                                                        
  of Ozone                                                                              
  Expected                                                                              
  Exceedance Days                                                                       
  per Year by                                                                           
  Monitors in the                                                                       
  Washington Area                                                                       
  2003 to 2005**                                                                        

  **Monitor                                          **Number of                        **Average
  Information**                                      Expected                           Number of
                                                     Exceedance                         Expected
                                                     Days**                             Exceedance Days
                                                                                        Per Year**

  **State**       **Monitor**            **AQS ID    **2003**     **2004**   **2005**   **2003-05**
                                         No.**                                          

  DC              Tacoma School,         110010025   0.0          0.0        0.0        0.0
                  Washington                                                            

  DC              River Terrace, 34^th^  110010041   0.0          0.0        0.0        0.0
                  and Dix Streets, NE,                                                  
                  Washington                                                            

  DC              McMillan Reservoir,    110010043   0.0          0.0        0.0        0.0
                  2500 1^st^ Street, NW,                                                
                  Washington                                                            

  MD              Calvert County         240090011   Note 1       Note 1     0.0        Note 1

  MD              Southern Maryland,     240170010   1.0          0.0        0.0        0.3
                  Charles County                                                        

  MD              Frederick County       240210037   0.0          0.0        0.0        0.0

  MD              Rockville, Montgomery  240313001   1.1          0.0        0.0        0.4
                  County                                                                

  MD              Howard University\'s   240330030   Note 1       Note 1     0.0        Note 1
                  Beltsville Laboratory,                                                
                  Beltsville, Prince                                                    
                  George\'s County                                                      

  MD              P.G. County Equestrian 240338003   2.0          0.0        0.0        0.7
                  Cntr,, Prince                                                         
                  George\'s County                                                      

  VA              18th And Hayes St,     510130020   1.0          0.0        0.0        0.3
                  Arlington County                                                      

  VA              Cub Run Lee Rd,        510590005   0.0          0.0        0.0        0.0
                  Chantilly, Fairfax                                                    
                  County                                                                

  VA              Mount Vernon, Fairfax  510590018   2.0          1.0        0.0        1.0
                  County                                                                

  VA              Lee Park, Franconia,   510590030   1.0          1.0        0.0        0.7
                  Fairfax County                                                        

  VA              6507 Columbia Pike,    510591005   1.0          0.0        0.0        0.3
                  Annandale, Fairfax                                                    
                  County                                                                

  VA              Mc Lean, Fairfax       510595001   0.0          1.0        0.0        0.3
                  County                                                                

  VA              Ashburn, Loudoun       511071005   0.0          1.0        0.0        0.3
                  County                                                                

  VA              Long Park, Prince      511530009   0.0          0.0        0.0        0.0
                  William County                                                        

  VA              Widewater, Stafford    511790001   0.0          0.0        0.0        0.0
                  County                                                                

  VA              Alexandria City        515100009   0.0          1.0        0.0        0.3
  --------------- ---------------------- ----------- ------------ ---------- ---------- ---------------

Source: EPA AQS Database.

Notes: 1. These two additional monitoring sites commenced operations in
2005. Because neither of these two monitoring sites recorded an
exceedance of the 1-hour ozone NAAQS in 2005, EPA concludes that these
monitors were attaining the 1-hour ozone NAAQS in 2005.

As shown in Table 1.B, the average number of expected exceedance days
per year is less than or equal to 1.0 at all of the sites. Therefore, we
propose to find that the Washington area attained the 1-hour ozone NAAQS
by November 15, 2005, which was the applicable attainment date under the
1-hour ozone NAAQS for this nonattainment area.

**IV. What Would Be The Consequences Of This Proposed Action?**

Because the area has attained the 1-hour ozone NAAQS by the applicable
attainment date, the area is not subject to the requirement to implement
contingency measures for failure to attain the 1-hour ozone NAAQS by its
attainment date. Since the area has met its attainment deadline, even if
the area subsequently lapses into nonattainment, it would not be
required to implement the contingency measures for failure to attain the
1-hour ozone NAAQS by its attainment date.

If a severe or extreme 1-hour ozone nonattainment area attains by its
1-hour ozone attainment date, it would not be required to implement the
section 185 penalty fees program. Section 185(a) of the CAA states that
a severe or extreme ozone nonattainment must implement a program to
impose fees on certain stationary sources of air pollution if the area
"has failed to attain the national primary ambient air quality standard
for ozone by the applicable attainment date." Consequently, if such an
area has attained the standard as of its applicable attainment date,
even if it subsequently lapses into nonattainment, the area would not be
required to implement the section 185 penalty fees program. Because EPA
is proposing to find that the area has attained the 1-hour ozone NAAQS
by its applicable attainment date, we also propose to find that the area
is not subject to the imposition of the section 185 penalty fees.

**V. Proposed Actions**

**A. Philadelphia Area**

Based upon EPA\'s review of the air quality data for the 3-year period
2003 to 2005, EPA is proposing to determine that the Philadelphia severe
1-hour ozone nonattainment area attained the 1-hour ozone NAAQS by the
applicable attainment date of November 15, 2005. EPA also proposes to
find that this area is not subject to the imposition of the section 185
penalty fees.

**B. Washington Area**

Based upon EPA\'s review of the air quality data for the 3-year period
2003 to 2005, EPA is proposing to determine that the Washington severe
1-hour ozone nonattainment area attained the 1-hour ozone NAAQS by the
applicable attainment date of November 15, 2005. EPA also proposes to
find that this area is not subject to the imposition of the section 185
penalty fees.

**VI. Statutory and Executive Order Reviews**

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a \"significant regulatory action\" and therefore
is not subject to review by the Office of

Management and Budget. For this reason, this action is also not subject
to Executive Order 13211, \"Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use\" (66 Fed. Reg.
28355 (May 22, 2001)). This proposed action merely proposes to find that
an area has attained a previously-established NAAQS based on an
objective review of measured air quality data and imposes no additional
requirements. Accordingly, the Administrator certifies that this
proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 [et seq]{.underline}.). Because this rule does not
impose any additional enforceable duties, it does not contain any
unfunded mandate or significantly or uniquely affect small governments,
as described in the Unfunded Mandates Reform Act of 1995 (Public Law
104‑4). This proposed rule also does not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
nor will it have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999), because it merely proposes to determine that each of two
areas has attained a Federal standard, and does not alter the
relationship or the distribution of power and responsibilities
established in the CAA. This proposed rule also is not subject to
Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not
economically significant.

This rule does not involve establishment of technical standards, and
thus, the requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
As required by section 3 of Executive Order 12988 (61 FR 4729, February
7, 1996), in issuing this proposed rule, EPA has taken the necessary
steps to eliminate drafting errors and ambiguity, minimize potential
litigation, and provide a clear legal standard for affected conduct. EPA
has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of the rule in accordance with the
AAttorney General=s Supplemental Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings@

issued under the executive order. These proposed rules to determine that
the Philadelphia and Washington severe zone nonattainment areas attained
the 1-hour ozone NAAQS and are not required to impose section 185
penalty fees does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 [et
seq]{.underline}.).

**List of Subjects:**

**40 CFR Part 52**

Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.

**40 CFR Part 81**

Air pollution control, National Parks, Wilderness Areas.

**Authority:** 42 U.S.C. 7401 [et seq]{.underline}.

[\_\_April 15, 2008]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_
[\_\_\_\_\_\_\_\_\_\_\_\_/s/\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

Dated: William T. Wisniewski, Acting

Regional Administrator,

Region III.

[^1]: EPA remains obligated under section 181(b)(2) to determine whether
    an area attained the 1-hour ozone NAAQS

    by its attainment date. However, after the revocation of the 1-hour
    ozone NAAQS, EPA is no longer obligated to reclassify an area to a
    higher classification for the 1-hour NAAQS based upon a
    determination that the area failed to attain the 1-hour NAAQS by the
    area\'s attainment date for the 1-hour NAAQS. (40 CFR
    51.905(e)(2)(i)(B). Thus

    even if we make a finding that an area has failed to attain the
    1-hour ozone NAAQS by its attainment date, the area would not be
    reclassified to a higher classification.

[^2]: This was the monitor located at West Chester University in West
    Chester, Chester County, Pennsylvania (AQS ID# 420290050). The
    monitor had averaged of 0.3 exceedances per year over this 3-year
    period from 2001 to 2003. Therefore, EPA concludes that this monitor
    was attaining the 1-hour ozone NAAQS at the time monitoring ceased
    at this site.

[^3]: This was the monitor located at the Goddard Space Flight Center in
    Greenbelt, Prince George\'s County, Maryland (AQS Id# 240330002).
    This monitor had averaged of 0.7 exceedances per year over this
    3-year period from 2001 to 2003. Therefore, EPA concludes that this
    monitor was attaining the 1-hour ozone NAAQS at the time monitoring
    ceased at this site.