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1For a detailed explanation of the calculation of 

the 3-year 8-hour average, see 40 CFR part 50, 

Appendix I. 

2EPA issued its proposal to determine that the 

Baltimore Area was attaining the 2008 ozone 

NAAQS pursuant to 40 CFR 51.918, EPA’s Clean 

Data Policy under the 1997 8-hour ozone 

implementation rule. On April 6, 2015, EPA’s plan 

implementing the 2008 ozone NAAQS became 

effective, thereby replacing 40 CFR 51.918 with 40 

CFR 51.1118, a functionally identical provision for 

purposes of this action. See 40 CFR 51.919. 

3The April 22, 2015 letter from MDE is available 

in the docket for this rulemaking under docket 

number EPA–R03–OAR–2014–0884. 

[FR Doc. 2015–13029 Filed 5–29–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2014–0884; FRL–9928–42– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Determination of Attainment 

of the 2008 8-Hour Ozone National 

Ambient Air Quality Standard for the 

Baltimore, Maryland Moderate 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is making the 

determination that the Baltimore, 

Maryland Moderate Nonattainment Area 

(Baltimore Area) has attained the 2008 

8-hour ozone National Ambient Air 

Quality Standard (NAAQS). This 

determination is based upon complete, 

quality-assured, and certified ambient 

air quality monitoring data that shows 

the Baltimore Area has monitored 

attainment of the 2008 8-hour ozone 

NAAQS for the 2012–2014 monitoring 

period. As a result of this determination, 

the requirement for the Baltimore Area 

to submit an attainment demonstration 

and associated reasonably available 

control measures (RACM), reasonable 

further progress plans (RFP), 

contingency measures, and other State 

Implementation Plan (SIP) revisions 

related to attainment of the standard are 

suspended for as long as the area 

continues to attain the 2008 8-hour 

ozone standard. 

DATES: This final rule is effective on July 

1, 2015. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2014–0884. 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: 

Irene Shandruk, (215) 814–2166, or by 

email at shandruk.irene@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On March 12, 2008, EPA revised both 

the primary and secondary NAAQS for 

ozone to a level of 0.075 parts per 

million (ppm) (annual fourth-highest 

daily maximum 8-hour average 

concentration, averaged over three 

years) to provide increased protection of 

public health and the environment. 73 

FR 16436 (March 27, 2008).1 The 2008 

ozone NAAQS retains the same general 

form and averaging time as the 0.08 

ppm NAAQS set in 1997, but is set at 

a more protective level. On May 21, 

2012 (77 FR 30088), effective July 20, 

2012, EPA designated as nonattainment 

any area that was violating the 2008 8- 

hour ozone NAAQS based on the three 

most recent years (2008–2010) of air 

monitoring data. The Baltimore Area 

(specifically, Anne Arundel County, 

Baltimore City, Baltimore County, 

Carroll County, Harford County, and 

Howard County) was designated as a 

moderate ozone nonattainment area. See 

40 CFR 81.321. Moderate areas are 

required to attain the 2008 8-hour ozone 

NAAQS by no later than six years after 

the effective date of designations, or July 

20, 2018. See 40 CFR 51.903. Air quality 

monitoring data from the 2012–2014 

monitoring period indicate that the 

Baltimore Area is now attaining the 

2008 8-hour ozone NAAQS. On March 

18, 2015 (80 FR 14041), EPA published 

a notice of proposed rulemaking (NPR), 

which proposed to determine that the 

Baltimore Area has attained the 2008 8- 

hour ozone NAAQS. Public comments 

were received on the NPR. Summaries 

of the comments as well as EPA’s 

responses are in section III of this 

rulemaking notice. 

Under the provisions of 40 CFR 

51.1118,2 also known as EPA’s Clean 

Data Policy, a determination by EPA 

that an area is attaining the relevant 

standard (through a rulemaking that 

includes public notice and comment) 

suspends the area’s obligations to 

submit an attainment demonstration, 

RACM, RFP, contingency measures and 

other planning requirements related to 

attainment of the 2008 8-hour ozone 

NAAQS for as long as the area continues 

to attain the standard. This suspension 

remains in effect until such time, if ever, 

that EPA (i) redesignates the area to 

attainment at which time those 

requirements no longer apply, or (ii) 

subsequently determines that the area 

has violated the 2008 8-hour ozone 

NAAQS. Although these requirements 

are suspended, EPA remains obligated 

under section 110(k)(2) to act upon 

these elements at any time if submitted 

to EPA for review and approval. On 

April 22, 2015, the Maryland 

Department of the Environment (MDE) 

sent correspondence to EPA indicating 

its intent to submit an attainment SIP 

for the 2008 8-hour ozone NAAQS.3

This determination of attainment is not 

equivalent to a redesignation under 

section 107(d)(3) of the CAA. The 

designation status of the Baltimore Area 

will remain nonattainment for the 2008 

8-hour ozone NAAQS until such time as 

EPA determines that the Area meets the 

Clean Air Act (CAA) requirements for 

redesignation to attainment, including 

an approved maintenance plan. 

Additionally, the determination of 

attainment is separate from, and does 

not influence or otherwise affect, any 

future designation determination or 

requirements for the Baltimore Area 

based on any new or revised ozone 

NAAQS, and it remains in effect 

regardless of whether EPA designates 

this Area as a nonattainment area for 

purposes of any new or revised ozone 

NAAQS. Finally, this determination 

does not relieve other CAA 

requirements that are not related to 

attainment planning and achievement of 

the NAAQS, such as an emissions 

inventory as required by CAA section 

172(c)(3) or a nonattainment area 

permitting program pursuant to CAA 

sections 172(c)(5) and 173. 

II. EPA’s Evaluation 

EPA has reviewed the complete, 

quality-assured and certified ozone 

ambient air monitoring data for the 

monitoring period for 2012–2014 for the 

Baltimore Area. The design values for 

each monitor for the years 2012–2014 

are less than or equal to 0.075 ppm 

which is the 2008 ozone NAAQS level, 

and all monitors meet the data 

completeness requirements (see Table 


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4Under EPA regulations at 40 CFR part 50, the 

2008 8-hour ozone NAAQS is attained when the 3- 

year average of the annual fourth-highest daily 

maximum 8-hour average ozone concentrations at 

an ozone monitor is less than or equal to 0.075 

ppm. See 40 CFR part 50, Appendix P. This 3-year 

average is referred to as the design value. When the 

design value is less than or equal to 0.075 ppm at 

each monitor within the area, then the area is 

attaining the NAAQS. The data completeness 

requirement is met when the average percent of 

days with valid ambient monitoring data is greater 

than or equal to 90 percent (%), and no single year 

has less than 75% data completeness as determined 

in Appendix P of 40 CFR part 50. The data must 

be collected and quality-assured in accordance with 

40 CFR part 58, and recorded in EPA’s Air Quality 

System. 

1).4 Based on this 2012–2014 data from 

EPA’s Air Quality System (AQS) 

database and consistent with the 

requirements contained in 40 CFR part 

50, EPA has concluded that this Area 

attained the 2008 8-hour ozone NAAQS. 

TABLE 1—2012–2014 BALTIMORE AREA 2008 8-HOUR OZONE DESIGN VALUES

Monitor ID 

Average 

percent data 

completeness 

2012–2014 

Design value 

(ppm) 

24–003–0014 ........................................................................................................................................................... 97 0.074 

24–005–1007 ........................................................................................................................................................... 95 0.072 

24–005–3001 ........................................................................................................................................................... 99 0.072 

24–013–0001 ........................................................................................................................................................... 99 0.069 

24–025–1001 ........................................................................................................................................................... 98 0.075 

24–025–9001 ........................................................................................................................................................... 96 0.073 

24–510–0054 ........................................................................................................................................................... 90 0.064 

The data in Table 1 are available in 

EPA’s AQS database. The AQS report 

with this data is available in the docket 

for this rulemaking under docket 

number EPA–R03–OAR–2014–0884 and 

available online at www.regulations.gov, 

docket number EPA–R03–OAR–2014– 

0884. Other specific requirements of the 

determination and the rationale for 

EPA’s proposed action were explained 

in the NPR and will not be restated here. 

III. Summary of Public Comments and 

EPA Responses 

EPA received the following adverse 

comments on the proposed 

determination of attainment for the 

Baltimore Area for the 2008 8-hour 

ozone NAAQS. A summary of the 

adverse comments and our responses 

follow. 

Comment 1: A commenter stated that 

EPA’s proposed determination of 

attainment for the 2008 8-hour ozone 

standard for the Baltimore Area thwarts 

the CAA’s mandate of expeditious 

attainment of the NAAQS because the 

monitored data are the result of unusual 

weather patterns resulting in low ozone 

concentrations in Baltimore’s air 

quality, which the commenter asserts is 

likely to revert back to monitored 

nonattainment in the near future. The 

commenter further states that this is of 

particular concern in the Baltimore Area 

given that asthma is an endemic 

problem and an environmental justice 

issue in Maryland. According to the 

commenter, issuance of a determination 

of attainment for the Baltimore Area for 

the 8-hour ozone NAAQS would defer 

additional needed air quality planning 

requirements, delay permanent 

attainment, and jeopardize public 

health. The commenter also asserts 

Maryland cannot rely on voluntary 

control measures which are not 

permanent and enforceable. Therefore, 

the commenter stated EPA’s issuance of 

the determination of attainment would 

be arbitrary, capricious and 

counterproductive to the mandate of the 

CAA. 

Response 1: EPA disagrees with the 

commenter that EPA should not finalize 

the determination of attainment 

because, in accordance with EPA 

regulations and longstanding policy for 

such determinations, and in accordance 

with the intent of the CAA, the area is 

factually attaining the NAAQS. As the 

commenter acknowledges, unlike the 

CAA’s redesignation requirement that 

an area’s attainment air quality is due to 

permanent and enforceable measures in 

CAA section 7407(d)(3)(E)(iii), EPA’s 

Clean Data Policy does not require an 

analogous demonstration. See 40 CFR 

51.1118. It is for this reason that EPA’s 

determination of attainment merely 

suspends the requirement to submit 

attainment planning SIPs for only so 

long as the area continues to attain the 

standard. If the area falls back into 

nonattainment, those attainment 

planning SIPs become immediately due 

upon a determination by EPA that the 

area is no longer attaining the NAAQS. 

Moreover, Maryland may still submit 

SIPs in anticipation of this event, and 

EPA will be required to act on those 

SIPs in accordance with CAA section 

7410(k)(2) and (3). The Clean Data 

Policy embodies EPA’s longstanding 

interpretation that certain planning 

requirements in the CAA no longer have 

meaning for areas that are attaining the 

standard because the purpose of these 

provisions is to help a nonattainment 

area reach attainment, a goal which will 

already have been achieved. 

Following enactment of the CAA 

Amendments of 1990, EPA promulgated 

its interpretation of the requirements for 

implementing the NAAQS in the 

general preamble for the 

implementation of Title I of the CAA 

Amendments of 1990 (General 

Preamble). See 57 FR 13498, 13564 

(April 16, 1992). In 1995, based on the 

interpretation of CAA sections 171, 172, 

and 182 in the General Preamble, EPA 

set forth what has become known as its 

‘‘Clean Data Policy’’ for the 1-hour 

ozone NAAQS. See Reasonable Further 

Progress, Attainment Demonstration, 

and Related Requirements for Ozone 

Nonattainment Areas Meeting the 

Ozone National Ambient Air Quality 

Standard, EPA memorandum from John 

S. Seitz, Director, Office of Air Quality 

Planning Standards, May 10, 1995 (Seitz 

Memorandum). The Seitz Memorandum 

provided that requirements to submit 

SIP revisions addressing RFP, an 

attainment demonstration, and other 

related requirements such as 

contingency measures and other specific 

ozone-related requirements in section 

182 would be suspended for as long as 

the nonattainment area continued to 

monitor attainment of the NAAQS. EPA 

incorporated its ‘‘Clean Data Policy’’ 

interpretation in both its 8-Hour Ozone 

Implementation Rule in 40 CFR 51.918, 

its Final Clean Air Fine Particle 

Implementation Rule (1997 PM2.5

Implementation Rule) in 40 CFR 

51.1004(c), the SIP requirements rule for 

the 2008 ozone NAAQS published on 

March 6, 2015 (80 FR 12264), and the 

proposed PM implementation rule 

published on March 23, 2015 (80 FR 

15340). See 72 FR 20585, 20665 (April 


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5While the United States Court of Appeals for the 

District of Columbia Circuit (D.C. Circuit) in a 

January 4, 2013 decision remanded the 1997 PM2.5

Implementation Rule to EPA, the D.C. Circuit did 

not address the merits of that regulation regarding 

our Clean Data Policy in 40 CFR 51.1004(c), nor cast 

any doubt on EPA’s existing interpretation of the 

statutory provisions for the Clean Data Policy. See 

Natural Resources Defense Council v. EPA, 706 

F.3d 428 (D.C. Cir. 2013). 

6 ‘‘EPA’s Final Rule to implement the 8-Hour 

Ozone National Ambient Air Quality StandardPhase 2 (Phase 2 Final Rule).’’ See 70 FR 71612, 

71645–46 (November 29, 2005). 

7NOX is a precursor pollutant which reacts in the 

atmosphere to form ozone. 

8According to MDE’s Web site, MDE has 

petitioned the Administrative, Executive, and 

Legislative Review (AELR) Committee of the 

Maryland General Assembly requesting emergency 

status for COMAR 26.11.38. If the AELR Committee 

grants its approval, the emergency measure for NOX

reductions at EGUs may go into effect immediately. 

To become a permanent regulation, the regulation 

must be promulgated following the State required 

administrative procedures, which includes a 30-day 

public comment period. See http:// 

www.mde.state.md.us/programs/regulations/air/ 

Pages/Emergency.aspx. For additional information 

including the proposed regulations, see http:// 

www.mde.state.md.us/programs/regulations/air/ 

Documents/COMAR_26.11.38.pdf and http:// 

www.baltimoresun.com/news/maryland/bs-md-airpollution-rule-20150417-story.html. 

9For a listing of EGUs which deactivated already 

or are planning to deactivate in the states which are 

part of PJM Interconnection, L.L.C., a regional 

transmission organization which coordinates the 

movement of wholesale electricity within states 

including Maryland, see http://www.pjm.com/ 

planning/generation-deactivation/gdsummaries.aspx. 

25, 2007).5 Over the past two decades, 

in regulations, guidance memoranda, 

and numerous individual rulemakings, 

EPA has consistently articulated its 

Clean Data Policy interpretation as 

applying to the attainment-related SIP 

planning provisions of subparts 1, 2 and 

4 of Part D of Title I of the CAA, and 

the spectrum of ambient air quality 

standards, including the 1-hour and 

1997 ozone, coarse particulate matter 

(PM10), fine particulate matter (PM2.5), 

and lead (Pb) NAAQS. See e.g. 79 FR 

77911 (December 29, 2014) 

(determination of attainment of 2008 Pb 

NAAQS); 79 FR 25014 (May 2, 2014) 

(determination of attainment of 2006 

PM2.5 NAAQS); 79 FR 21139 (April 15, 

2014) (determination of attainment of 

2008 ozone NAAQS); 78 FR 20244 

(April 4, 2013) (determination of 

attainment of 1997 ozone NAAQS); and 

77 FR 36163 (June 18, 2012) 

(determination of attainment of 1-hour 

ozone NAAQS). The D.C. Circuit 

explicitly upheld EPA’s Clean Data 

Policy interpretation as embodied in 

the1997 8-Hour Ozone Implementation 

Rule, 40 CFR 51.918.6 NRDC v. EPA, 571 

F. 3d 1245, 1258–61 (D.C. Cir. 2009). 

Other U.S. Circuit Courts of Appeals 

that have considered and reviewed 

EPA’s Clean Data Policy interpretation 

have similarly upheld it and the 

rulemakings applying EPA’s 

interpretation. Sierra Club v. EPA, 99 

F.3d 1551 (10th Cir. 1996); Our 

Children’s Earth Foundation v. EPA, N. 

04–73032 (9th Cir. June 28, 2005) 

(memorandum opinion); and Latino 

Issues Forum v. EPA, Nos. 06–75831 

and 08–71238 (9th Cir. March 2, 2009) 

(memorandum opinion). 

Because EPA finds the Baltimore 

Area’s monitoring data supports a 

determination that the Baltimore Area 

has attained the 2008 ozone NAAQS as 

explained above and in the NPR, EPA 

disagrees with the commenter that EPA 

should not issue at this time a 

determination of attainment which 

suspends SIP planning requirements for 

the Baltimore Area pursuant to our 

Clean Data Policy. EPA acts to protect 

the public health in accordance with the 

CAA and its mandates and the Agency 

is concerned with increased asthma 

incidences as well as with ensuring 

environmental justice for communities. 

EPA’s determination of attainment for 

the Baltimore Area is in accordance 

with our regulations and longstanding 

policy and is based on monitored ozone 

data demonstrating attainment with the 

2008 8-hour ozone NAAQS, which EPA 

set at a level to protect the public 

health. Thus, EPA’s action is in 

accordance with the CAA, its 

implementing regulations, and policy. 

Second, to the extent that the 

commenter is suggesting that EPA may 

not issue a determination of attainment 

where the factors that contributed to 

attainment are not permanent, EPA 

notes that such a requirement is a 

prerequisite to a redesignation of a 

nonattainment area under CAA section 

107(d)(3)(E)(iii), but not for a 

determination of attainment. A 

redesignation changes the legal status of 

an area from nonattainment of the 

NAAQS to attainment of the NAAQS, 

and is not pertinent to determinations of 

attainment that simply suspend 

attainment planning requirements in 

Part D of Title I of the CAA. Thus, EPA 

disagrees with the commenter that our 

determination of attainment, which is 

based on data from ozone monitors in 

the Baltimore Area showing attainment 

with the 2008 ozone NAAQS in 

accordance with 40 CFR part 50, 

Appendix P, is arbitrary or capricious, 

or contrary to the CAA. 

Finally, under the provisions of EPA’s 

ozone implementation rules (40 CFR 

51.918 and 51.919), if EPA issues a 

determination that an area is attaining 

the relevant standard (through a 

rulemaking that includes public notice 

and comment), it will suspend the area’s 

obligations to submit an attainment 

demonstration, RACM, RFP, 

contingency measures and other 

planning requirements related to 

attainment of the 2008 8-hour ozone 

NAAQS for as long as the area continues 

to attain the standard. This suspension 

remains in effect until such time, if ever, 

that EPA (i) redesignates the area to 

attainment at which time those 

requirements no longer apply, or (ii) 

subsequently determines that the area 

has violated the 2008 8-hour ozone 

NAAQS. Although these requirements 

are suspended, EPA is required to act 

upon these elements if submitted to 

EPA for review and approval. In fact, 

Maryland has stated its intent to submit 

an attainment plan for the 2008 8-hour 

ozone NAAQS, which will address SIP 

attainment planning requirements in 

sections 172 and 182 of the CAA, 

including control measures, RACM, RFP 

and contingency measures which will 

assist the Baltimore Area with 

maintenance of the NAAQS. See April 

22, 2015 letter from MDE to EPA 

regarding plans for 2008 ozone NAAQS 

attainment SIP which is included in the 

docket for this rulemaking action. Thus, 

EPA has considered the commenter’s 

concern that this rulemaking will delay 

attainment planning which could assist 

with maintenance with the NAAQS, and 

has determined that MDE is addressing 

these concerns. Furthermore, EPA’s 

NPR which proposed to determine the 

Baltimore Area had attained the 2008 8- 

hour ozone NAAQS has not delayed or 

interfered with MDE’s plans for 

additional control measures to address 

ozone formation and attainment and 

maintenance of ozone NAAQS. For 

example, MDE recently proposed action 

on new nitrogen oxide (NOX) 

regulations for electric generating units 

(EGUs), which may assist the Area with 

maintenance of the 2008 8-hour ozone 

NAAQS.7 See COMAR 26.11.38 

(proposed April 17, 2015).8 In addition, 

EPA expects further NOX reductions 

will occur in Maryland with the 

projected closure of coal-fired power 

generating units at NRG Energy’s 

Dickerson and Chalk Point power plants 

which are projected to deactivate by 

2018.9 In addition, many other coalfired EGUs in Maryland and in states 

neighboring Maryland have already 

deactivated or will soon deactivate in 

2015 and 2016, including R. Paul Smith, 

Potomac River, Chesapeake, Clinch 

River, Glen Lynn, Armstrong, Elrama, 

Hatfields Ferry, Mitchell, Willow Island, 

Albright, Kammer, Kanawha River, 

Phillip Sporn, Rivesville, Walter C. 

Beckjord, Muskingum River, Eastlake, 

Ashtabula, and Big Sandy, which will 

likely result in further NOX and ozone 


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10See http://www.pjm.com/planning/generationdeactivation/gd-summaries.aspx. 11By reference to ‘‘transport,’’ the commenter 

refers to the transport of air pollution and 

pollutants from upwind states to downwind states 

in the atmosphere. 

12EPA also discussed the irrelevance of atypical 

weather in EPA’s approval of the attainment 

demonstration for the Washington DC–MD–VA, 

moderate ozone nonattainment area for the 1997 

ozone NAAQS. 80 FR 19206 (April 10, 2015). In 

response to comments that the weather in 2012 was 

cooler and wetter than average which led to ozone 

levels lower than seen in prior years, EPA agreed 

that weather plays an important role in ozone 

formation but stated that these considerations do 

not require EPA to disapprove the attainment 

demonstration where modeling and actual design 

values from ambient air quality monitors 

demonstrated attainment of the NAAQS. Id. at 

19213–214 (stating EPA’s approval of attainment 

demonstration was in accordance with CAA 

statutory requirements). 

reductions and thereby additionally 

address the commenter’s concerns with 

continued attainment and maintenance 

of the ozone NAAQS in the Baltimore 

Area.10

Comment 2: The commenter asserts 

that EPA should not issue a 

determination of attainment for the 

Baltimore Area because the Area 

experienced atypical weather conditions 

in 2013 and 2014, leading to lower 

monitored ozone levels in the Area, and 

asserts the Area is likely to revert back 

to nonattainment in the near future. The 

commenter states that unusually cool 

summers, increased precipitation, and 

shifting ozone transport patterns which 

occurred in 2013 and 2014 contributed 

to unusually low ozone levels in the 

Baltimore Area, but that the National 

Oceanic Atmospheric Administration 

(NOAA) predicts that such aberrant 

weather trends will not continue 

through summer 2015. The commenter 

asserts the Baltimore Area could revert 

to nonattainment if summers are 

warmer with less precipitation than 

2013 and 2014. The commenter cites to 

statements from Maryland and the 

Ozone Transport Commission regarding 

the shifting weather and transport 

patterns in 2013 and 2014.11

Furthermore, the commenter asserts that 

2013 and 2014 atypical weather 

conditions led to lower energy demand 

due to less use of air conditioners by 

consumers in summer, and thereby led 

to lower coal plant operations, and 

presumably lower NOX emissions 

helping to keep ozone levels low. The 

commenter notes the coal-fired EGUs in 

Maryland have generally operated less 

in recent years but tend to continue to 

operate on warmer summer days, which 

the commenter says are the most 

‘‘sensitive’’ from the ozone and public 

health perspective. Thus, the 

commenter states EPA should decline to 

issue the clean data determination for 

the Baltimore Area because of the 

aberrant weather in 2013 and 2014 and 

because the Area is likely to revert back 

to nonattainment in the near future. 

Response 2: EPA disagrees with the 

commenter that transport of NOX or 

ozone or that weather patterns including 

unusual patterns of transport of 

pollution and cooler, wetter weather 

data than historical averages should 

impact EPA’s determination of 

attainment for the Baltimore Area with 

respect to the 2008 8-hour ozone 

NAAQS. EPA’s determinations of 

attainment with a NAAQS are based 

entirely on monitoring data and on our 

evaluation of that data’s compliance 

with 40 CFR part 50, Appendix P. 

Therefore, weather conditions, transport 

patterns, energy demand, and EGU 

megawatt generation that the 

commenter alleges may impact NOX and 

ozone pollution levels are irrelevant in 

determining whether an area is attaining 

a NAAQS. Under EPA regulations at 40 

CFR part 50, the 2008 8-hour ozone 

NAAQS is attained when the 3-year 

average of the annual fourth-highest 

daily maximum 8-hour average ozone 

concentrations at an ozone monitor is 

less than or equal to 0.075 ppm. See 40 

CFR part 50, Appendix P. This 3-year 

average is the design value. When the 

design value is less than or equal to 

0.075 ppm at each monitor within the 

area, then the area is attaining the 

NAAQS. EPA’s analysis of monitoring 

data in the Baltimore Area (included in 

Section II of this rulemaking action) 

supports the determination that the 

Baltimore Area has attained the 2008 8- 

hour ozone NAAQS. In addition, the 

data completeness requirement for 

evaluating monitoring data for NAAQS 

attainment is met when the average 

percent of days with valid ambient 

monitoring data is greater than or equal 

to 90 percent (%), and no single year 

has less than 75% data completeness as 

defined in Appendix P of 40 CFR part 

50. Monitor data must also be collected 

and quality-assured in accordance with 

40 CFR part 58 and recorded in the 

EPA’s AQS. EPA’s analysis in Section II 

of this rulemaking action of the monitor 

data in the Baltimore Area shows the 

Baltimore Area monitors meet the 

completeness criterion which also 

supports our determination that the 

Baltimore Area has attained the 2008 8- 

hour ozone NAAQS. 

In sum, EPA reviewed the complete, 

quality-assured and certified ozone 

ambient air monitoring data for the 

2012–2014 monitoring period for the 

Baltimore Area. The design values for 

each monitor for the years 2012–2014 

are less than or equal to 0.075 ppm, and 

all monitors meet the data completeness 

requirements (see Table 1 in Section II 

of this rulemaking action). Thus, EPA 

disagrees with the commenter that EPA 

should not issue the determination of 

attainment based on factors such as 

atypical weather, transport, or reduced 

EGU generation. The Baltimore Area has 

attained the 2008 8-hour ozone NAAQS 

in accordance with 40 CFR part 50, 

Appendix P requirements and 40 CFR 

51.918. Thus, EPA’s determination is in 

accordance with CAA requirements and 

is not arbitrary or capricious.12 If the 

Baltimore Area’s monitors show design 

values exceeding the 2008 8-hour ozone 

NAAQS in the future, EPA will take 

appropriate action to remove the 

suspension of attainment plan 

requirements as discussed in this 

rulemaking and in the NPR. 

Furthermore, as noted in response to 

Comment 1, notwithstanding the lawful 

suspension of these requirements in 

accordance with 40 CFR 51.1118, the 

state has indicated that it plans to 

continue working on submissions to 

address the suspended attainment 

planning requirements, which EPA will 

be required to act upon in accordance 

with CAA section 110(k). 

Comment 3: The commenter states 

that Baltimore’s ozone monitors do not 

accurately capture all maximum ozone 

exposures. According to the commenter, 

several ozone monitors in the Baltimore 

Area (including specifically the 

Davidsonville, Padonia, and Aldino 

monitors) have shut off for several days 

during the ozone season in 2011, 2012 

and 2013, and on several occasions, 

shut off on very hot days as ozone 

concentrations increased. The 

commenter asserts these monitors may 

have missed exceedances that would 

have kept the monitor in nonattainment 

for 2012–2014 with the 2008 8-hour 

ozone NAAQS. The commenter states 

the untimely shut-offs of ozone 

monitors call into question the 

‘‘cleanliness’’ of the Area’s data as 

monitors were ‘‘down and failing to 

record ambient ozone levels at critical 

points during ozone season and summer 

heat waves.’’ The commenter states EPA 

should decline to grant the clean data 

determination at this time due to 

‘‘illusory air quality improvements.’’ 

Because the commenter questions the 

monitoring data due to certain shut off 

episodes, the commenter additionally 

claims EPA’s determination of 

attainment for the Baltimore Area is 

arbitrary, capricious and contrary to 

law. 

Response 3: EPA disagrees with the 

commenter that EPA should not finalize 


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Federal Register / Vol. 80, No. 104 / Monday, June 1, 2015 / Rules and Regulations 30945 

13For example, one period of unavailable monitor 

data noted by the commenter around June 29, 2012 

at the Davidsonville monitor occurred due to a 

power failure brought on by a historic storm 

(known as a derecho) which caused extensive 

power outages and property damage in Maryland. 

Despite the summer heat, none of the other 

Baltimore area monitors registered exceedances 

during that period of time as temperature is not 

always directly linked to ozone exceedances. EPA 

finds it reasonable during this derecho that strong 

winds likely swept ozone away from the Area based 

on monitoring data from nearby monitors. 

this determination of attainment for the 

Baltimore Area for the 2008 8-hour 

ozone NAAQS due to concerns raised 

by the commenter with respect to 

certain ozone monitors in the Area, and 

disagrees that EPA’s determination is 

arbitrary, capricious or contrary to law. 

As discussed previously, EPA issues 

determinations of attainment for the 

NAAQS based solely on monitoring data 

input into EPA’s AQS demonstrating 

attainment with a NAAQS in 

accordance with requirements for 

attainment in 40 CFR part 50, Appendix 

P, regardless of weather or transport 

conditions or patterns. For EPA to issue 

a determination of attainment, one 

important criterion is that the 

monitoring data must meet the 

completeness requirements set forth in 

Appendix P of 40 CFR part 50 (amongst 

other requirements.) The data 

completeness requirement is met when 

the average percent of days with valid 

ambient monitoring data is greater than 

or equal to 90%, and no single year has 

less than 75% data completeness. EPA 

has determined that the 2012–2014 

ozone monitoring data in the Baltimore 

Area meet these requirements because 

the average percent of days with valid 

ambient monitoring data is greater than 

or equal to 90% and because no single 

year has less than 75% data 

completeness. Therefore, EPA has 

sufficient data in accordance with 

Appendix P of 40 CFR part 50 for 

issuance of the determination of 

attainment for the Baltimore Area with 

the 2008 8-hour ozone NAAQS. EPA 

disagrees with the commenter that the 

monitors ‘‘shutting off’’ create illusory 

air quality improvements as the 

monitors satisfy EPA’s data 

completeness requirements. 

In addition, EPA disagrees with the 

commenter’s characterization that the 

monitors were ‘‘shutting off,’’ and EPA 

finds it unreasonable to infer ozone 

exceedances may have occurred during 

any periods when monitors may not 

have collected valid data. Ozone 

monitors are sophisticated analytical 

instruments. While they mostly operate 

quite reliably, there may be occasional 

incidences where monitors malfunction 

or produce erroneous or compromised 

data despite best efforts at maintenance 

and good operating practices. EPA 

believes it is unreasonable to expect any 

ozone monitor to operate continuously 

twenty-four hours a day for seven days 

a week over the seven month ozone 

season without experiencing any 

operational issues. EPA believes routine 

issues may be expected to occur 

affecting monitor operation and 

performance including issues such as 

ultraviolet lamps and vacuum pumps 

needing repair, particulate filters 

becoming clogged, and water vapor 

condensing in the sample manifold and 

being drawn into the monitor. 

In addition, monitors must be 

operated in environmentally controlled 

buildings or instrument shelters. If the 

air conditioning fails and the monitors 

overheat, unstable readings may occur. 

If the temperature gets too cold in a 

shelter on a hot and humid day, 

condensation can occur and affect the 

ozone readings. Condensation may also 

impact a monitor because ozone 

exceedance days are often observed on 

warm and humid days. Further, 

monitoring stations frequently house 

additional monitoring equipment 

creating a high electrical demand. Thus, 

monitors are susceptible to electrical 

power disturbances from power failures 

due to stress on the electrical grid or 

from power failures due to 

thunderstorms which also frequently 

occur during hot and humid ozone 

exceedance days. 

To combat such issues, a strict 

schedule of preventative maintenance, 

operational checks, daily zero and span 

challenges, periodic audits and a 

minimum of bi-weekly precision checks 

are in place by state agencies operating 

monitors such as MDE to insure that any 

monitor problems are addressed in a 

timely manner and that the highest 

possible quality data is being produced. 

Since MDE produces daily ozone 

forecasts, MDE’s monitoring site 

operators are alerted ahead of time 

when they can expect ozone exceedance 

days and extra efforts are taken to insure 

that the monitors are operating properly 

as practically possible. 

Because of these concerns with 

monitor operations, Appendix P of 40 

CFR part 50 accounts for potential 

missing data with the completeness 

criterion discussed previously. All of 

the Baltimore Area ozone monitors meet 

these requirements for the period in 

question. EPA reviewed data from the 

Davidsonville, Padonia, and Aldino 

monitors noted by the commenter as 

having missing data from 2011–2013 

including on hotter days in the ozone 

season. In general, EPA believes that the 

characterization of these monitors as 

being ‘‘shut off’’ is not accurate. Instead, 

EPA found the data from these monitors 

was invalidated for very brief periods or 

was briefly not collected due to 

operational concerns such as 

malfunctioning air conditioning units, 

power failures, and condensation 

concerns in sample lines. EPA’s analysis 

of the Davidsonville, Padonia, and 

Aldino monitors for the time periods 

noted by the commenter is included in 

a Supplemental Technical Support 

Document (Supplemental TSD) which is 

available in the docket for this 

rulemaking action under Docket ID 

Number EPA–R03–OAR–2014–0884. 

EPA also believes it is unlikely that the 

monitors missed high ozone 

exceedances as other monitors were 

operating in or near the Baltimore Area 

during some of these limited occasions 

and were not reporting exceedances. 

EPA finds it is unreasonable for the 

commenter to infer ozone exceedances 

would have occurred during the very 

limited periods of invalidated data or 

uncollected data due to power outages 

because ozone concentrations are not 

solely dependent on temperature, 

because ozone concentrations do not 

behave linearly from day to day at each 

monitor, and because such inference 

ignores the meteorology and the 

behavior of the other ozone monitors in 

Maryland, which did not report 

exceedances on the same days and times 

when these three monitors had limited 

periods of invalidated data.13 For a 

detailed discussion of monitor 

performance and an explanation for the 

brief periods of invalidated data at each 

of the noted monitors, see the 

Supplemental TSD. 

In conclusion, because EPA’s 

determination of attainment for the 

Baltimore Area is in accordance with 

established CAA requirements and is 

supported by EPA analysis in the NPR 

and in Section II of this rulemaking 

action regarding complete, qualityassured, and certified ambient air 

monitoring data that shows the 

Baltimore Area has monitored 

attainment of the 2008 8-hour ozone 

NAAQS for the 2012–2014 monitoring 

period, EPA’s determination is neither 

arbitrary, capricious, nor contrary to the 

CAA. 

IV. Final Action 

EPA has determined that the 

Baltimore Area has attained the 2008 8- 

hour ozone NAAQS. This determination 

is based upon complete, qualityassured, and certified ambient air 

monitoring data that show the Baltimore 

Area has monitored attainment of the 

2008 8-hour ozone NAAQS for the 


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30946 Federal Register / Vol. 80, No. 104 / Monday, June 1, 2015 / Rules and Regulations 

2012–2014 monitoring period. This 

determination suspends the requirement 

for Maryland to submit an attainment 

demonstration for the Baltimore Area, 

RACM, a RFP plan, contingency 

measures, and other planning 

requirements related to attainment of 

the 2008 8-hour ozone NAAQS for so 

long as the Baltimore Area continues to 

attain the 2008 8-hour ozone NAAQS. 

Although these requirements are 

suspended, EPA is still obligated to act 

upon revisions addressing these 

requirements if submitted to EPA for 

review and approval. Finalizing this 

determination does not constitute a 

redesignation of the Baltimore Area to 

attainment for the 2008 8-hour ozone 

NAAQS under CAA section 107(d)(3). 

Therefore, the designation status of the 

Baltimore Area will remain 

nonattainment for the 2008 8-hour 

ozone NAAQS until such time as EPA 

takes final rulemaking action to 

determine that the Baltimore Area meets 

the CAA requirements for redesignation 

to attainment. Finally, this 

determination does not relieve other 

CAA requirements that are not related to 

attainment planning and achievement of 

the NAAQS such as an emissions 

inventory as required by CAA section 

172(c)(3) or a nonattainment area 

permitting program pursuant to CAA 

sections 172(c)(5) and 173. 

V. Statutory and Executive Order 

Reviews 

A. General Requirements 

This action makes a determination of 

attainment based on air quality, and will 

result in the suspension of certain 

Federal requirements, and will not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ 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 se.); 

• 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 se.); 

• 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 an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

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 CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et se., 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 July 31, 2015. 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 determining that the 

Baltimore Area has attained the 2008 8- 

hour ozone NAAQS 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 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: May 19, 2015. 

William C. Early, 

Acting Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart V—Maryland 

■ 2. In § 52.1082, paragraph (i) is added 

to read as follows: 

§ 52.1082 Determinations of attainment. 

* * * * * 

(i) EPA has determined, as of June 1, 

2015, that based on 2012 to 2014 

ambient air quality data, the Baltimore 

nonattainment area has attained the 

2008 8-hour ozone NAAQS. This 

determination, in accordance with 40 

CFR 51.1118, suspends the requirement 

for this area to submit an attainment 

demonstration, associated reasonably 

available control measures, a reasonable 

further progress plan, contingency 

measures, and other planning SIPs 

related to attainment of the standard for 

as long as this area continues to meet 

the 2008 8-hour ozone NAAQS. 

[FR Doc. 2015–13030 Filed 5–29–15; 8:45 am] 

BILLING CODE 6560–50–P 


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