34810 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations 

1Hereafter the term ‘‘1-hour ozone NAAQS’’ may 

be expressed either as ‘‘1-hour ozone NAAQS’’ or 

as ‘‘1-hour ozone standard.’’ 

2See ‘‘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. 

EPA-APPROVED REGULATIONS, TECHNICAL MEMORANDA, AND STATUTES IN THE MARYLAND SIP 

Code of Maryland administrative regulations (COMAR) citation 

Title/subject State effective 

date EPA approval date Additional explanation/ citation at 40 CFR 52.1100 

*******

26.11.02 Permits, Approvals, and Registration 

*******

26.11.02.10 ............................. Sources Exempt from Permits 

to Construct and Approvals.

8/11/11 6/12/12 ...................................

[Insert page number where 

the document begins].

Revised .10X 

* * * * * * * 

* * * * * 

[FR Doc. 2012–14103 Filed 6–11–12; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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, qualityassured 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

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 antibacksliding requirements and section 

301 of the Clean Air Act (CAA), EPA is 

determining that complete, qualityassured 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). 

In order to determine the area’s air 

quality status for purposes of this 

action, EPA reviewed ozone monitoring 


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3These 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. 

4Subsequently, 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. 

5Hereafter this decision will be called ‘‘South 

Coast.’’ 

6EPA’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. 

7NOX is an abbreviation for ‘‘nitrogen oxides;’’ 

VOC is an abbreviation for ‘‘volatile organic 

compounds.’’ 

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. 

On July 18, 1997, (62 FR 38856), EPA 

promulgated a new, more protective 

standard for ozone based on eight-hour 

average concentrations (the ‘‘1997 eighthour 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 eighthour ozone NAAQS and classified the 

area as moderate.4

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 antibacksliding requirements based on their 

1-hour ozone classification. Initially, 

EPA’s Phase 1 rule to address the 

transition from the 1-hour to the eighthour 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

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 VOC7 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. 

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 


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8After 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). 

9The 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. 

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 qualityassured 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. 

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 


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11 Docket item number EPA–R03–OAR–2011– 

0680–0008 in the docket for this action. 

12There are several levels of access to AQS such 

as the public access portal ‘‘http://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. 

13Refer 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. 

14http://www.epa.gov/airdata/ad_rep_mon.html. 

15The 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. 

16Refer to the ‘‘Monitor Values Report’’ from U.S. 

EPA Air Data http://www.epa.gov/airdata, 

generated April 16, 2012. A copy of this report has 

been placed in the docket for this action. 

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. 

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 

http://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 


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17Refer to the ‘‘Monitor Values Report’’ from U.S. 

EPA Air Data http://www.epa.gov/airdata, 

generated May 1, 2012. 

18The boundaries of the ‘‘Baltimore’’ 

nonattainment areas are the same under both the 1- 

hour and 1997 8-hour (40 CFF 50.10) NAAQS. 

19See 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). 

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. 

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. 

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 antibacksliding 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 antibacksliding 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 antibacksliding 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 antibacksliding 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 longestablished legal path to determining 

that the contingency measure 

requirement has been satisfied by a 

determination, after notice-andcomment 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. 


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20As 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. 

21Moreover, 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. 

22 In that case, also Sierra Club. 

23Sierra 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). 

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. 

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

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. 

‘‘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 


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24Sierra 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). 25The comments used the phrase ‘‘disapprove the 

submit.’’ 26See 40 CFR 50.10. 

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 antibacksliding 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.’’ 

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. 

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. 

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 antibacksliding 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 


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27The 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. 

28This 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. 

30As 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. 

31Based upon context, EPA concludes the 

citation to § 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)). 

32A 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). 

were required before this clean data 

determination.27

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). 

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 antibacksliding requirements that were 

specifically retained by the antibacksliding 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. 

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. § 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.’’ 

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. 

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 


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34818 Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations 

33Subsequent 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. 

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. 

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 threeyear 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 


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Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Rules and Regulations 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] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart V—Maryland 

■ 2. Section 52.1076 is amended by 

adding paragraph (y) to read as follows. 

§ 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. 

■ 3. Section 52.1082 is amended by 

adding paragraphs (f) and (g) to read as 

follows. 

§ 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] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2010–0523; FRL–9683–7] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Illinois; Redesignation of 

the Illinois Portion of the St. Louis, 

MO–IL Area to Attainment for the 1997 

8-hour Ozone Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a request 

from the State of Illinois to redesignate 

the Illinois portion of the St. Louis, 

MO–IL area to attainment of the 1997 8- 

hour ozone National Ambient Air 

Quality Standard (NAAQS or standard). 

The St. Louis area includes Jersey, 

Madison, Monroe, and St. Clair 

Counties in Illinois and St. Louis City 

and Franklin, Jefferson, St. Charles, and 

St. Louis Counties in Missouri. The 

Illinois Environmental Protection 

Agency (IEPA) submitted this request on 

May 26, 2010, and supplemented its 

request on September 16, 2011. EPA 

proposed to approve this submission on 

December 22, 2011, and provided a 30- 

day review and comment period. On 

January 20, 2012, EPA extended the 

public comment period for an 

additional 30 days. The comment period 

closed on February 22, 2012. EPA 

received comments submitted on behalf 

of Sierra Club. In addition to approving 

the redesignation request EPA is taking 

several other related actions. EPA is 

approving, as a revision to the Illinois 

State Implementation Plan (SIP), the 

State’s plan for maintaining the 1997 8- 

hour ozone standard through 2025 in 

the area. EPA is approving the 2002 

emissions inventory, submitted by IEPA 

on June 21, 2006, and supplemented on 

September 16, 2011, as meeting the 

comprehensive emissions inventory 

requirement of the Clean Air Act (CAA) 

for the Illinois portion of the St. Louis 

area. Finally, EPA finds adequate and is 

approving the State’s 2008 and 2025 

Motor Vehicle Emission Budgets 

(MVEBs) for the Illinois portion of the 

St. Louis area. 

DATES: Effective Date: This rule is 

effective on June 12, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2010–0523. All 

documents in the docket are listed on 

the www.regulations.gov Website. 

Although listed in the index, 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 at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone 

Kathleen D’Agostino, Environmental 

Engineer, at (312) 886–1767 before 

visiting the Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen D’Agostino, Environmental 

Engineer, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 886–1767, 

dagostino.kathleen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

I. What is the background for this rule? 

II. What comments did we receive on the 

proposed rule? 

III. What actions is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. What is the background for this rule? 

On July 18, 1997 (62 FR 38856), EPA 

promulgated an 8-hour ozone standard 

of 0.08 parts per million (ppm). EPA 

published a final rule designating and 

classifying areas under the 1997 8-hour 

ozone NAAQS on April 30, 2004 (69 FR 

23857). In that rulemaking, the St. Louis 

area was designated as nonattainment 

for the 1997 8-hour ozone standard and 

classified as a moderate nonattainment 

area under subpart 2 of the CAA. 

On May 26, 2010, IEPA requested 

redesignation of the Illinois portion of 

the St. Louis area to attainment of the 

1997 8-hour ozone standard based on 

ozone data for the period of 2007–2009. 

On September 16, 2011, IEPA 

supplemented the original ozone 

redesignation request, revising the 

mobile source emission estimates using 

EPA’s on-road mobile source emissions 

model, MOVES, and extending the 

demonstration of maintenance of the 

ozone standard through 2025, with new 

MVEBs, but without relying on emission 

reductions resulting from 


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