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[Federal Register Volume 77, Number 21 (Wednesday, February 1, 2012)]
[Proposed Rules]
[Pages 4940-4947]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2222]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2011-0680; FRL-9625-4 ]

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: Proposed rule.

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SUMMARY: EPA is proposing to determine that the Baltimore severe 1-hour 
ozone nonattainment area failed to attain the 1-hour ozone National 
Ambient Air Quality Standards (NAAQS) by the applicable attainment date 
of November 15, 2005, based on three years of complete, quality-assured 
and certified ambient air quality monitoring data for 2003 through 
2005. In addition, EPA is proposing to determine that the Baltimore 
area is currently attaining the 1-hour ozone NAAQS. This proposed 
determination is based upon the most recent three years, 2008-2010, of 
complete, quality-assured and certified ambient air monitoring data 
showing the area has monitored attainment of the 1-hour ozone NAAQS. 
EPA's review shows that the area has attained the 1-hour ozone NAAQS 
since the 2006-2008 monitoring period and that it continues to attain 
the 1-hour ozone NAAQS. If this latter proposed determination is made 
final, the requirement for the State of Maryland to submit contingency 
measures related to attainment of the 1-hour ozone NAAQS in the 
Baltimore severe 1-hour ozone nonattainment area shall be suspended.

DATES: Written comments must be received on or before March 2, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2011-0680 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2011-0680, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such

[[Page 4941]]

deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2011-0680. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your e-mail 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103.

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

SUPPLEMENTARY INFORMATION: 
    Throughout this document, ``we,'' ``us,'' and ``our'' refer to EPA.
    The information presented in this notice is organized as follows:

I. What action is EPA proposing?
    A. Proposed Determination of Failure To Attain by Applicable 
Attainment Date
    B. Proposed Determination of Current Attainment
II. What is the background for these proposed actions?
    A. What are the geographical boundaries of the Baltimore area?
    B. What is the history of the ozone designations and 
classifications and the 1-hour ozone requirements for the Baltimore 
area?
    C. What is the background of 1-hour ozone anti-backsliding 
requirements in the transition to the 1997 8-hour ozone rule?
III. What is the rationale for and effect of these proposed 
determinations for the Baltimore area?
    A. What is the rationale for the proposed determination of 
failure to attain by applicable attainment date?
    B. What is the status of the Maryland State Implementation Plan 
(SIP) regarding the 1-hour ozone anti-backsliding requirement for 
contingency measures?
C. What would be the effects of these proposed determinations for 
the Baltimore area?
IV. How does EPA compute whether an area complies with the 1-hour 
ozone NAAQS?
    A. What is the level and form of the 1-hour ozone NAAQS?
    B. What are the relevant data handling and rounding conventions 
for the 1-hour ozone NAAQS?
    C. How is the number of expected exceedance days determined and 
how is attainment determined under the form of the 1-hour ozone 
NAAQS?
V. What is EPA's analysis of the data regarding Baltimore's 
attainment of the 1-hour ozone standard?
    A. What is EPA's analysis of whether the Baltimore area attained 
the 1-hour ozone standard by its 2005 attainment deadline?
    B. What is EPA's proposed determination of whether the Baltimore 
area is currently attaining the 1-hour ozone standard?
VI. Proposed Actions
    A. Proposed Determination of 1-Hour Ozone Attainment by the 
Attainment Deadline of November 15, 2005
    B. Proposed Determination That the Baltimore Area Is Currently 
Attaining the 1-Hour Ozone Attainment
VII. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    EPA is proposing two separate and independent determinations for 
the Baltimore 1-hour severe ozone nonattainment area (hereafter ``the 
Baltimore area'').

A. Proposed Determination of Failure To Attain by Applicable Attainment 
Date

    For the Baltimore area, EPA is proposing to determine that the area 
did not attain the 1-hour ozone NAAQS by the applicable attainment 
date, November 15, 2005. This proposed determination is based upon 
complete, quality-assured and certified air quality monitoring data for 
the 2003 through 2005 ozone seasons.

B. Proposed Determination of Current Attainment

    EPA is also proposing to determine that the Baltimore area is 
currently attaining the 1-hour ozone NAAQS, based upon complete, 
quality-assured and certified ambient air monitoring data showing the 
area has monitored attainment of the 1-hour ozone NAAQS for the most 
recent 3-year period 2008-2010. Preliminary data available for 2011 
indicate that the Baltimore area continues to attain the standard. 
EPA's review shows that the area has monitored attainment continuously 
since the 2006-2008 monitoring period. If this proposed determination 
is made final, the requirement for the State of Maryland to submit 
contingency measures related to attainment of the 1-hour ozone NAAQS in 
the Baltimore area shall be suspended.

II. What is the background for these proposed actions?

A. What are the geographical boundaries of the Baltimore area?

    The Baltimore area consists of Anne Arundel, Baltimore, Carroll, 
Harford, and Howard Counties and the City of Baltimore in Maryland.

B. What is the history of the ozone designations and classifications 
and the 1-hour ozone requirements for the Baltimore area?

    Pursuant to provisions of the Clean Air Act (CAA), EPA establishes 
NAAQS for certain widespread pollutants that cause or contribute to air 
pollution that is reasonably anticipated to endanger public health or 
welfare (sections 108 and 109 of the CAA). In 1979, we promulgated the 
1-hour ozone standard of 0.12 parts per million (ppm) (44 FR 8202, 
February 8, 1979). For ease of communication, we may informally report 
ozone concentrations in parts per billion (ppb) where one-thousand ppb 
equals one ppm. Thus, 0.12 ppm becomes 120 ppb or up to 124 ppb when 
rounding is considered. (Rounding is further discussed in section IV. 
B. of this document.)
    EPA first designated the Baltimore area as an ozone nonattainment 
area in 1978. See, 43 FR 8962 at 9001, March

[[Page 4942]]

3, 1978.\1\ Under the 1990 Amendments to the CAA, the CAA designated 
``by operation of law'' as nonattainment each area of the country that 
was already designated nonattainment for the 1-hour ozone NAAQS. The 
Baltimore area was one such pre-amendment ozone nonattainment area so 
designated nonattainment for ozone. The CAA as amended in 1990 further 
classified ``by operation of law'' each ozone nonattainment area 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).
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    \1\ This action designated the Metropolitan Baltimore Intrastate 
Air Quality Control Region (see, 40 CFR 81.28), which has the same 
boundaries as the Baltimore 1-hour ozone nonattainment area, as 
nonattainment for ``photochemical oxidants.'' The term 
``photochemical oxidants'' was replaced by ``ozone'' in a February 
8, 1979 final rule (44 FR 8202 at 8220).
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    The control requirements and date by which attainment is to be 
achieved vary with an area's classification. Marginal areas are subject 
to the fewest mandated control requirements and had the earliest 
attainment date, November 15, 1993, while severe and extreme areas are 
subject to more stringent planning requirements and are provided more 
time to attain the standard. Based upon air quality monitoring data, 
the Baltimore area was classified as ``severe-15'' with a statutory 
attainment date of November 15, 2005. See, 56 FR 56694, November 6, 
1991.

C. What is the background of 1-hour ozone anti-backsliding requirements 
in the transition to the 1997 8-hour ozone rule?

    On July 18, 1997 (62 FR 38856), EPA promulgated a new, more 
protective standard for ozone based on an 8-hour average concentration 
(the ``1997 8-hour ozone NAAQS''). In an April 30, 2004 final rule (69 
FR 23858), EPA designated and classified most areas of the country 
under the 1997 8-hour ozone NAAQS promulgated in 40 CFR 50.10. We 
designated the Baltimore area as nonattainment for the 1997 8-hour 
ozone NAAQS. This 8-hour ozone nonattainment area is composed of the 
same five counties and city as the 1-hour ozone nonattainment area. We 
classified this area as moderate under the 1997 8-hour ozone NAAQS. At 
the time of designation, the same area remained in nonattainment for 
the 1-hour standard.
    On April 30, 2004 (69 FR 23951), EPA issued a final rule entitled 
``Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality 
Standard--Phase 1'' (the ``Phase 1 Implementation Rule''). Among other 
actions, this rule revoked the 1-hour ozone NAAQS in the Baltimore area 
(as well as in most other areas of the country), effective June 15, 
2005. See, 40 CFR 50.9(b); 69 FR 23951 at 23996, April 30, 2004; and 70 
FR 44470, August 3, 2005.
    Although EPA revoked the 1-hour ozone standard, 8-hour ozone 
nonattainment areas remain subject to certain 1-hour anti-backsliding 
requirements based on their 1-hour ozone classification. Initially, in 
our rules to address the transition from the 1-hour to the 8-hour ozone 
standard, EPA did not include contingency measures or the section 185 
fee program among the measures retained as 1-hour ozone anti-
backsliding requirements.\2\ 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 from its anti-
backsliding requirements. See, South Coast Air Quality Management 
District v. EPA (SCAQMD v. EPA), 472 F.3d 882 (DC Cir. 2006) rehearing 
denied 489 F.3d 1245 (clarifying that the vacatur was limited to the 
issues on which the court granted the petitions for review).
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    \2\ Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 1, 69 FR 23951 (April 30, 2004).
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    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 and, for severe and extreme 
areas, major source fee programs. EPA has issued a proposed rule that 
would remove the vacated provisions of 40 CFR 51.905(e), and that 
addresses contingency measures for failure to attain or make reasonable 
further progress toward attainment of the 1-hour 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).

III. What is the rationale for and effect of these proposed 
determinations for the Baltimore area?

A. What is the rationale for the proposed determination of failure to 
attain by applicable attainment date?

    After revocation of the 1-hour ozone standard, EPA must continue to 
provide a mechanism to give effect to the 1-hour anti-backsliding 
requirements. See, SCAQMD v. EPA, 47 F.3d 882, at 903. In keeping with 
this responsibility with respect to 1-hour anti-backsliding contingency 
measures and section 185 fee programs, EPA proposes to determine that 
the Baltimore area failed to attain the 1-hour ozone standard by its 
applicable attainment date. Consistent with 40 CFR 51.905(e)(2) and the 
South Coast court decision, upon revocation of the 1-hour ozone NAAQS 
for an area, EPA is no longer obligated to determine whether an area 
has attained the 1-hour NAAQS by its applicable deadline, except 
insofar as it relates to effectuating the anti-backsliding requirements 
that are specifically retained. EPA's proposed determination here--that 
the area did not attain the 1-hour ozone standard by the November 15, 
2005 deadline (based on data for 2003-2005) is linked solely to two 
required 1-hour ozone anti-backsliding measures: i.e., 1-hour 
contingency measures for failure to attain under section 172(c)(9) and 
fee programs under sections 182(d)(3), 182(f) and 185.
    A final determination of failure to attain by the area's 2005 1-
hour ozone attainment date will not result in reclassification of the 
area under the revoked 1-hour standard. As a severe 1-hour ozone 
nonattainment area, the Baltimore area is not subject to 
reclassification for the 1-hour ozone standard, and in any event EPA is 
no longer required to reclassify any area to a higher classification 
for the 1-hour ozone NAAQS based upon a determination that the area 
failed to attain that NAAQS by its attainment date. See, 40 CFR 
51.905(e)(2)(i)(B).
    EPA's proposed determination that the area failed to attain the 1-
hour ozone standard by its applicable date, if finalized, would bear on 
the area's obligations with respect to two 1-hour ozone anti-
backsliding requirements whose implementation would be triggered by a 
finding of failure to attain by the applicable attainment date: section 
172(c)(9) contingency measures for failure to attain and sections 
182(d)(3) ad 185 major stationary source fee programs.

B. What is the status of the Maryland State Implementation Plan (SIP) 
regarding the 1-hour ozone anti-backsliding requirement for contingency 
measures?

    With respect to the 1-hour ozone anti-backsliding requirement for 
contingency measures, EPA has previously approved the State of 
Maryland's 1-hour ozone attainment demonstration, reasonably available 
control measures and reasonable further progress (RFP) \3\ plans, and 
RFP/ROP contingency

[[Page 4943]]

measures for Baltimore. See, 66 FR 49108, September 26, 2001, 66 FR 
54666, Oct. 30, 2001; 68 FR 61103, October 27, 2003; 69 FR 7133, 
February 13, 2004); 64 FR 70397, December 16, 1999; 68 FR 40861, July 
9, 2003; 65 FR 4638, July 28, 2000; 66 FR 36964, July 16, 2001; and 
September 7, 2001, 66 FR 44760, September 7, 2001.
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    \3\ For the 1-hour ozone NAAQS, RFP was termed ``rate-of-
progress (ROP).''
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    While EPA did not approve contingency measures for failure to 
attain the 1-hour ozone NAAQS in the Baltimore area, EPA has reviewed 
reductions that resulted from measures that were not relied upon in the 
attainment demonstration, and believes that these measures provided 
more reductions than necessary to serve the purpose of contingency 
measures for this area.
    Contingency measures for failure to attain aim to provide for a 3 
percent reduction in emissions. The amount of reductions required is 
computed from the same baseline as is used for computing reductions 
needed for RFP/ROP for the attainment year. In the case of the 
Baltimore area, 3 percent of the ROP baselines for the 2005 attainment 
year equates to 8.23 tons per day (TPD) of volatile organic compounds 
(VOC) or 13.77 TPD of nitrogen oxides (NOX).
    An RFP/ROP plan includes a target level of emissions needed to meet 
the RFP requirement and a demonstration that the projected levels of 
emissions in the area by the RFP deadline date will be equal to or less 
than the target level after accounting for growth. See, 57 FR 13498 at 
13507-13508, April 16, 1992.\4\ As a severe 1-hour ozone nonattainment 
area the ROP plan included target levels of VOC and NOX 
emissions for November 15, 2005, which was the Baltimore area's 
attainment date for the 1-hour ozone NAAQS. As a moderate 1997 8-hour 
ozone nonattainment area, the RFP plan for the Baltimore area included 
target levels of VOC and NOX emissions for December 31, 
2008. EPA has approved the ROP/RFP plans for 2005 and 2008; see, 69 FR 
7133, February 13, 2004 and 75 FR 31709, June 4, 2010, respectively. 
These plans contain projected levels of actual emissions for November 
15, 2005 and for December 31, 2008. The RFP/ROP plan for 2005 and for 
2008 each uses consistent methods for projecting growth in emissions-
related activities after the baseline years and most importantly use 
the same emissions factor model, MOBILE6, for developing emissions 
factors for on-road or highway mobiles sources. Comparison of the 2005 
and 2008 projected levels of actual emissions suggests that the 
Maryland SIP provided for reduction in total emissions of 2.05 TPD of 
VOC and 66.97 TPD of NOX emissions after 2005 but by 
December 31, 2008. As noted above, the contingency measure requirement 
for failure to attain for the Baltimore area under the 1-hour ozone 
NAAQS was 8.23 TPD of VOC or 13.77 TPD of NOX. For further 
details of the ROP/RFP plans for the Baltimore area and the derivation 
of the projected reductions between 2005 and 2008 refer to the 
technical support document prepared for this proposed action.
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    \4\ For specifics relating to the RFP/ROP plans for the 
Baltimore area, for example, see the following notices of proposed 
rulemaking: 75 FR 958, January 7, 2010, and 68 FR 75191, December 
30, 2003
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    Based upon the air quality monitoring data for 2006 and later years 
(discussed in section V.B of this document), EPA can conclude that the 
Maryland SIP provided for sufficient emission reductions after November 
15, 2005 to attain the 1-hour ozone NAAQS, as evidenced by attainment 
of the 1-hour ozone standard by 2008 and continued attainment 
thereafter.

C. What would be the effects of these proposed determinations for the 
Baltimore area?

    As noted above, EPA is also proposing a separate and independent 1-
hour ozone determination that the Baltimore area currently attains the 
1-hour ozone standard, based on complete, quality-assured and certified 
ozone data for 2008-2010, and preliminary data available for 2011.\5\ 
If this determination 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. Under EPA's ``Clean Data 
Policy'' interpretation,\6\ which was articulated first for the 1-hour 
standard and later codified for the 8-hour ozone standard (40 CFR 
51.918), a determination of attainment suspends obligations to make 
submissions for attainment-related requirements (including contingency 
measures) for that standard.\7\ See, for example, determination of 1-
hour ozone attainment for Baton Rouge, 75 FR 6570, February 10, 2010.
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    \5\ As noted elsewhere in this proposed determination, the 
monitoring data show that the Baltimore area has been attaining the 
1-hour ozone standard continuously since 2008.
    \6\ See, ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment 
Areas Meeting the Ozone National Ambient Air Quality Standard,'' 
(Clean Data Policy) dated May 10, 1995.
    \7\ The U.S. Court of Appeals for the District of Columbia 
Circuit upheld the provisions of 40 CFR 51.918, which codified the 
Clean Data Policy. Previously Courts of Appeals for several other 
Circuits upheld the Clean Data Policy under the 1-hour standard. 
See, NRDC v. EPA, 571 F.3d 1245 (DC Cir. 2009); 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 
(9thCir. June 28, 2005) (memorandum opinion).
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    With respect to the 1-hour ozone anti-backsliding requirement for 
penalty fees, section 182(d)(3) requires SIPs to include provisions 
required by section 185. Section 185 requires 1-hour ozone SIPs for 
severe areas to provide that, if the area has failed to attain by the 
attainment date, each major stationary source of ozone precursors 
located in the area must begin paying a fee to the state. Thus a final 
determination of failure to attain by the area's 1-hour attainment date 
would trigger the 1-hour anti-backsliding obligation to implement the 
penalty fee program under section 182(d)(3) 182(f) and 185, unless that 
obligation is terminated.

IV. How does EPA compute whether an area complies with the 1-hour ozone 
NAAQS?

A. What is the level and form of the 1-hour ozone NAAQS?

    The relevant regulation, 40 CFR 50.9(a), states the following 
regarding the 1-hour ozone NAAQS:
    1. The level of the national 1-hour primary and secondary NAAQS for 
ozone is 0.12 parts per million; and
    2. The 1-hour ozone NAAQS ``is attained when the expected number of 
days per calendar year with maximum hourly average concentrations above 
0.12 parts per million is equal to or less than 1, as determined by 
appendix H'' to 40 CFR part 50.
    We consider that a monitor exceeds the 1-hour ozone standard when 
that ambient air quality monitor records a 1-hour average ozone 
concentration above 0.12 ppm at least once in any given calendar day. 
Only the maximum 1-hour ozone concentration at the monitor during any 
calendar day is considered when determining if the 1-hour ozone NAAQS 
was exceeded on that day. That is, even when a monitor records more 
than one hourly concentration above 0.12 ppm during a calendar day, 
that day counts as only a single ``exceedance day.'' See, 40 CFR 50.9 
``National 1-hour primary and secondary ambient air quality standards 
for ozone'' and ``Interpretation of the 1-Hour Primary and Secondary 
National Ambient Air Quality Standards for Ozone'' (40 CFR part 50, 
appendix H).

[[Page 4944]]

B. What are the relevant data handling and rounding conventions for the 
1-hour ozone NAAQS?

    Although the 1-hour ozone NAAQS as promulgated in 40 CFR 50.9 does 
not address specific data handling conventions, EPA's publicly 
articulated position and the approach that the air quality management 
community has long universally adopted, is that the interpretation of 
the 1-hour ozone standard requires rounding ambient air quality data 
consistent with the stated level of the standard, which is 0.12 ppm.
    As early as 1979, EPA's guidance noted that the level as it is 
expressed in the standard defines the number of significant figures to 
be used in comparisons with the standard. For example, a standard level 
of 0.12 ppm means that measurements are to be rounded to two decimal 
places (0.005 rounds up), and, therefore, 0.125 ppm is the smallest 
concentration value in excess of the level of the standard. See, 
``Guideline for the Interpretation of Ozone Air Quality Standards,'' 
EPA-450/4-79-003, OAQPS No. 1.2-108, January 1979. EPA has consistently 
applied the rounding convention in this 1979 guideline. See, 68 FR 
19106 at 19111, April 17, 2003; 68 FR 62041 at 62043, October 31, 2003; 
and 69 FR 21717 at 21719, April 22, 2004. In the 1990 CAA Amendments, 
Congress expressly recognized the continuing validity of EPA guidance 
in the 1990 CAA Amendments. See, generally, H Comm. Rep. 101-490 pp. 
197, 232 (1990) (House Energy and Commerce Committee Report).

C. How is the number of expected exceedance days determined and how is 
attainment determined under the form of the 1-hour ozone NAAQS?

    A nonattainment area attains the 1-hour ozone NAAQS only when all 
monitors in that area attain the 1-hour ozone NAAQS. EPA determines if 
an area has attained the 1-hour ozone NAAQS by calculating, at each 
monitor, the average expected number of days over the standard per year 
(i.e., ``average number of expected exceedance days'') during the 
applicable 3-year period. See, generally the General Preamble, 57 FR 
13498 at 13506, April 16, 1992 and Memorandum from D. Kent Berry, 
Acting Director, Air Quality Management Division, EPA to Regional Air 
Office Directors; ``Procedures for Processing Bump Ups and Extensions 
for Marginal Ozone Nonattainment Areas,'' February 3, 1994.
    A monitor shows attainment when the average number of ``expected'' 
number of ``exceedance days'' per calendar year ``is less than or equal 
to one (1)'' when averaged over a 3-year period. See, 40 CFR part 50 
appendix H and Memorandum from D. Kent Berry, Acting Director, Air 
Quality Management Division, EPA, to Regional Air Office Directors; 
``Procedures for Processing Bump Ups and Extensions for Marginal Ozone 
Nonattainment Areas,'' dated February 3, 1994. The level of the 
standard defines the number of significant figures to be used in 
comparisons with the standard, and, in this case, the number of 
significant figures to be used is one. The smallest value which will 
exceed the value of this standard is a value of 1.1, and, the average 
over a 3-year period is therefore rounded to one significant figure.
    An observed daily maximum value at a monitor is considered to be 
valid if 75 percent of the hours from 9:01 a.m. to 9 p.m. were measured 
or if the highest hourly value measured is greater than the level of 
the standard. Where there are either no data for a day or data for less 
than the 75 percent of the hours between 9 a.m. and 9 p.m., a missing 
daily maximum ozone value may be assumed to be less than the level of 
the standard if the valid daily maxima on both the preceding day and 
the following day do not exceed 75 percent of the level of the 
standard. A day for which the daily maximum ozone value may be assumed 
to be less than 0.0125 ppm is termed ``day assumed less than the 
standard.'' See, appendix H to 40 CFR part 50.
    To account for missing data, the procedures in appendix H to 40 CFR 
part 50 are used to adjust the actual number of observed exceedances of 
the standard in a year to yield the annual number of ``expected 
exceedance days'' at an air quality monitoring site.
    The computation of ``expected exceedance days'' is rounded to one 
significant figure for both the purposes of estimating the annual 
number of expected exceedance days at a monitor and for the annual 
average number of expected exceedance days over a 3-year period.
    For example, for the 3-year average, any value less than 1.05 
rounds down to 1.0, and, any value of 1.05 or greater rounds up to 1.1. 
As stated in a preceding paragraph in this section of this document a 
violation occurs when the average number of expected exceedance days 
over a consecutive 3-year period is greater than or equal to 1.1. 
Therefore, to not violate the 1-hour ozone NAAQS, the maximum aggregate 
sum of expected exceedance days over a consecutive 3-year period 
allowed is 3.1 because 3.1 divided by 3 is 1.03333, which when rounded 
to one significant figure is 1.0 which does not exceed 1. An aggregate 
sum of 3.2 expected exceedance days over a consecutive 3-year period do 
not meet this standard because 3.2 divided by 3 equals 1.0666, which 
when rounded to one significant figure is 1.1 and which is greater than 
1.0. For further details refer to the technical support document 
prepared for this proposed action regarding the conversion of observed 
daily maximum values to expected exceedance days for each monitoring 
site.
    A determination of whether an area's air quality meets the 1-hour 
ozone standard is based upon three years of complete, quality-assured 
and certified air quality monitoring data gathered at established State 
and Local Air Monitoring Stations (SLAMS) in the nonattainment area and 
entered into the EPA's Air Quality System (AQS) database. Data from air 
monitors operated by state/local agencies in compliance with EPA 
monitoring requirements must be submitted to the AQS database. 
Monitoring agencies must annually certify that these data are accurate 
to the best of their knowledge, and, for calendar years 2010 and later, 
such certifications must be submitted by May 1st for the prior year's 
data. See, 40 CFR 58.15. Thus, the certification of the air quality 
monitoring data for calendar year 2011 is due no later than May 1, 
2012. Accordingly, EPA relies primarily on data in its AQS database 
when determining the attainment status of an area. See, 40 CFR 50.9; 40 
CFR part 50, appendix H; 40 CFR part 53; 40 CFR part 58, appendices A, 
C, D, and E. All data are reviewed to determine the area's air quality 
status in accordance with 40 CFR part 50, appendix H.

V. What is EPA's analysis of the data regarding Baltimore's attainment 
of the 1-hour ozone standard?

    As noted previously, the applicable attainment date under the 1-
hour ozone NAAQS for the Baltimore area was November 15, 2005.\8\ We 
base a determination regarding attainment of the 1-hour ozone NAAQS by 
this deadline on the average number of

[[Page 4945]]

expected exceedance days per year for the period 2003-2005.
---------------------------------------------------------------------------

    \8\ Pursuant to section 181(a)(5) of the CAA, the state may 
request, and EPA may grant up to two 1-year attainment date 
extensions, provided that certain criteria are met. One criterion is 
that there be no more than one exceedance of the 1-year ozone 
standard at any monitoring site in the nonattainment area in the 
year in which attainment is required. As shown in Table 1, the 
Edgewood, Harford County monitoring site recorded two (2) 
exceedances in 2005, during the year of the attainment deadline. 
Therefore the Baltimore area was not eligible for an attainment date 
extension under section 181(a)(5) nor did the State request such an 
extension.
---------------------------------------------------------------------------

    From 2003 through 2005, ambient air quality for ozone was monitored 
on a continuous basis at six monitoring sites within the Baltimore 
area. The minimum required monitoring season for the Baltimore area is 
214 days from April 1st to October 31st of every year. See, 40 CFR 
58.11(c) and Table D-3 ``Ozone Monitoring Seasons by State'' in 
appendix D to 40 CFR part 58.

A. What is EPA's analysis of whether the Baltimore area attained the 1-
hour ozone standard by its 2005 attainment deadline?

    During the entire 2003 to 2005 period, six ozone monitoring 
stations in the Baltimore area were in operation. Table 1 summarizes 
the ozone data collected at these six ozone monitoring stations during 
the 2003 to 2005 period and included in AQS for the Baltimore area. 
These data are complete and have been quality-assured and recorded in 
AQS. Maryland uses the AQS as the permanent database to maintain its 
data and quality assure the data transfers and content for accuracy. We 
have used the established rounding conventions set forth in our 
guidance documents and regulations.

  Table 1--Number and Average Number of Ozone Expected Exceedance Days and Design Values per Year by Monitor in
                                         the Baltimore Area 2003 to 2005
----------------------------------------------------------------------------------------------------------------
                     Monitor information                      Annual number of expected  exceedance    Average
-------------------------------------------------------------                  days                   number of
                                                             ---------------------------------------   expected
                                                                                                      exceedance
                                                                                                       days per
                    Monitor (AQS ID No.)                          2003         2004         2005         year
                                                                                                    ------------
                                                                                                       2003-05
----------------------------------------------------------------------------------------------------------------
Davidsonville Recreation Center, 3801 Queen Anne Bridge               2.1          0.0          0.0          0.7
 Road, Anne Arundel County (24-003-0014)....................
Padonia Elementary School, 9834 Greenside Drive,                      0.0          0.0          0.0          0.0
 Cockeysville, Baltimore County (24-005-1007)...............
600 Dorsey Avenue, Essex, Baltimore County (24-005-3001)....          1.0          0.0          1.0          0.7
1300 W. Old Liberty Road, Carroll County (24-013-0001)......          0.0          0.0          0.0          0.0
Edgewood Chemical Biological Center (APG), Waehli Road,               1.0          1.0          2.0          1.3
 Edgewood, Harford County (24-025-1001).....................
3560 Aldino Road, Harford County (24-025-9001)..............          1.0          0.0          1.0          0.7
----------------------------------------------------------------------------------------------------------------
Source: EPA AQS Database, ``Quicklook Criteria Parameters,'' Report Request ID 843146, Report Code AMP450, dated
  March 3, 2011.

    A complete listing of the ozone exceedances for each monitoring 
site, as well as a summary of EPA's calculations can be found in the 
technical support document prepared for this proposed action. As shown 
in Table 1, the average number of expected exceedance days per year 
exceeded 1.0 at the Edgewood, Harford County monitoring site. Only 
monitors with three complete years of data are shown in Table 1. Since 
at least one monitor in the Baltimore area failed to attain the 1-hour 
ozone NAAQS by November 15, 2005, this is sufficient to support the 
conclusion that the area failed to attain the 1-hour ozone standard by 
its applicable attainment date. Therefore, we propose to determine that 
the Baltimore area failed to attain the 1-hour ozone NAAQS by its 
applicable attainment date of November 15, 2005.

 B. What is EPA's proposed determination of whether the Baltimore area 
is currently attaining the 1-hour ozone standard?

    During the entire period from 2006 through 2011, the same seven 
ozone monitoring stations in the Baltimore area were in operation. 
Table 2 lists, for each monitor, its AQS identification number, its 
location, and its ``short name.''

                              Table 2--Monitor Information Baltimore Area 2006-2011
----------------------------------------------------------------------------------------------------------------
        Monitor (AQS ID No.)                             Location                             Short name
----------------------------------------------------------------------------------------------------------------
24-510-0054........................  Furley E.S. Recreational Center, 4633 Furley     Furley.
                                      Avenue, Baltimore City.
24-003-0014........................  Davidsonville Recreation Center, 3801 Queen      Davidsonville.
                                      Anne Bridge Road, Anne Arundel County.
24-005-1007........................  Padonia Elementary School, 9834 Greenside        Padonia.
                                      Drive, Cockeysville, Baltimore County.
24-005-3001........................  600 Dorsey Avenue, Essex, Baltimore County.....  Essex.
24-013-0001........................  1300 W. Old Liberty Road, Carroll County.......  South Carroll.
24-025-1001........................  Edgewood Chemical Biological Center (APG),       Edgewood.
                                      Waehli Road, Edgewood, Harford County.
24-025-9001........................  3560 Aldino Road, Harford County...............  Aldino.
----------------------------------------------------------------------------------------------------------------
Source: EPA AQS Database, ``Quicklook Criteria Parameters,'' Report Request ID 843146, Report Code AMP450, dated
  March 3, 2011 and Report Request ID 937336, Report Code AMP450, dated December 13, 2011.

    Table 3 summarizes the 1-hour ozone data collected at these six 
ozone monitoring stations during the 2006 to 2010 period and included 
in AQS for the Baltimore area. These data are complete and have been 
quality- assured and recorded in AQS. Maryland uses the AQS as the 
permanent database to maintain its data and to quality- assure the data 
transfers and content for accuracy. We have used the established 
rounding conventions set forth in our guidance documents and 
regulations.

[[Page 4946]]

               Table 3--Number and Average Number of Ozone Expected Exceedance Days Per Year by Monitor in the Baltimore Area 2006 to 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   Monitor information                            Annual number of expected  exceedance days              Average number of expected
---------------------------------------------------------------------------------------------------------------------      exceedance days per year
                                                                                                                     -----------------------------------
          Monitor--AQS ID No. & ``Short Name''               2006        2007        2008        2009        2010      2006-2008   2007-2009   2008-2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
24-510-0054--Furley.....................................         0.0         0.0         0.0         0.0         0.0         0.0         0.0         0.0
24-003-0014--Davidsonville..............................         0.0         1.0         0.0         0.0         0.0         0.3         0.3         0.0
24-005-1007--Padonia....................................         0.0         0.0         1.0         0.0         0.0         0.3         0.3         0.0
24-005-3001--Essex......................................         1.0         0.0         0.0         0.0         1.0         0.3         0.0         0.3
24-013-0001--South Carroll..............................         0.0         0.0         0.0         0.0         0.0         0.0         0.0         0.0
24-025-1001--Edgewood...................................         2.0         1.0         0.0         1.0         1.1         1.0         0.7         0.7
24-025-9001--Aldino.....................................         1.0         2.0         0.0         0.0         0.0         1.0         0.7         0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: EPA AQS Database, ``Quicklook Criteria Parameters,'' Report Request ID 843146, Report Code AMP450, dated March 3, 2011.

    Table 4 summarizes the 1-hour ozone data collected at these six 
ozone monitoring stations during the 2009 to 2011 period and included 
in AQS for the Baltimore area. These data for 2009 and 2010 are 
complete and have been quality-assured and recorded in AQS. The data 
for 2011 are those entered in AQS as of December 13, 2011. Data for at 
least 90 percent of the 2011 monitoring season days has been entered 
into AQS but has not yet been certified by Maryland.\9\ The data shows 
that only one monitor recorded an exceedance of the 1-hour ozone 
standard; the Edgewood site measured one exceedance of the 1-hour ozone 
standard during 2011. As of December 13, 2011, the 2011 data entered 
into AQS for the Edgewood site includes 209 days of valid data and also 
includes three days assumed less than the standard. Under the 
procedures discussed in Section IV of this document, the number of 
expected exceedances for the Edgewood site is only 1.0 for 2011.
---------------------------------------------------------------------------

    \9\ The deadline for certifying the 2011 data is May 1, 2012. 
See, 40 CFR 58.15.

 Table 4--Number and Average Number of Ozone Expected Exceedance Days Per Year by Monitor in the Baltimore Area
                                                  2009 to 2011
----------------------------------------------------------------------------------------------------------------
                     Monitor information                      Annual number of expected  exceedance    Average
-------------------------------------------------------------                  days                   number of
                                                             ---------------------------------------   expected
                                                                                                      exceedance
                                                                                                      days  per
            Monitor--AQS ID No. & ``Short Name''                  2009         2010         2011         year
                                                                                                    ------------
                                                                                                      2009-2011
----------------------------------------------------------------------------------------------------------------
24-510-0054--Furley.........................................          0.0          0.0          0.0          0.0
24-003-0014--Davidsonville..................................          0.0          0.0          0.0          0.0
24-005-1007--Padonia........................................          0.0          0.0          0.0          0.0
24-005-3001--Essex..........................................          0.0          1.0          0.0          0.3
24-013-0001--South Carroll..................................          0.0          0.0          1.0          0.0
24-025-1001--Edgewood.......................................          1.0          1.1          1.0          1.0
24-025-9001--Aldino.........................................          0.0          0.0          0.0          0.0
----------------------------------------------------------------------------------------------------------------
Source: EPA AQS Database, ``Quicklook Criteria Parameters,'' Report Request ID 843146, Report Code AMP450, dated
  March 3, 2011, for the 2009 to 2010 data and Report Request ID 937336, Report Code AMP450, dated December 13,
  2011, for the 2011 data.

    As shown in Tables 3 and 4, no monitor in the Baltimore area had a 
value of the average number of expected exceedance days per year 
exceeding 1.0 in the 3-year period 2006-2008. Furthermore, no monitor 
in the Baltimore area has had a value of the average number of expected 
exceedance days per year exceeding 1.0 in any 3-year period after 2006-
2008, that is, during the subsequent 3-year periods 2007-2009 and 2008-
2010. Thus the data show that the Baltimore area attained the 1-hour 
ozone standard in 2008 and has continued to attain this standard 
through 2010 based upon the most recent complete, quality-assured and 
certified data. Preliminary data available for 2011 indicate that the 
area continues in attainment for the 1-hour ozone standard for the 
period 2009 through 2011.
    Therefore, we propose to determine that the Baltimore area is 
currently attaining the 1-hour ozone NAAQS based on the most recent 
three years of complete, quality-assured and certified ozone monitoring 
data, 2008-2010. Preliminary data available for 2011 indicate that the 
area continues in attainment of the 1-hour ozone standard. If we 
finalize this determination the State of Maryland's obligation to 
submit contingency measures for failure to attain the 1-hour ozone 
standard would be suspended.

 VI. Proposed Actions

    In this notice of proposed rulemaking, pursuant to EPA's authority 
to ensure implementation of 1-hour ozone anti-backsliding requirements 
(CAA sections 301 and 181(b)(2)) EPA is proposing two separate, 
independent, and severable determinations.

A. Proposed Determination of 1-Hour Ozone Attainment by the Attainment 
Deadline of November 15, 2005

    Pursuant to EPA's authority to ensure implementation of 1-hour 
ozone anti-backsliding requirements (CAA section 301 and section 
181(b)(2)) and based upon EPA's review of complete, quality-assured and 
certified ozone monitoring

[[Page 4947]]

data for the 3-year period 2003 to 2005, EPA is proposing to determine 
that the Baltimore severe 1-hour ozone nonattainment area failed to 
attain the 1-hour ozone NAAQS by the applicable attainment date of 
November 15, 2005.

B. Proposed Determination That the Baltimore Area Is Currently 
Attaining the 1-Hour Ozone Attainment

    Second, however, EPA is proposing to determine that the Baltimore 
area is currently attaining the 1-hour ozone NAAQS, based upon the most 
recent three years of complete, quality-assured and certified ambient 
air monitoring data (2008-2010). The preliminary data that is available 
for 2011 show that the area continues to attain the standard. Moreover, 
the Baltimore area has monitored attainment of the 1-hour ozone NAAQS 
since the 2006-2008 monitoring period. If this proposed determination 
is made final, the obligation for the State of Maryland to submit 
contingency measures related to attainment of the 1-hour ozone NAAQS in 
the Baltimore severe 1-hour ozone nonattainment area would be 
suspended. These proposed determinations regarding the 1-hour ozone 
standard, if finalized, would bear on the Baltimore area's obligations 
with respect to the 1-hour ozone anti-backsliding requirements for 
section 172(c)(9) contingency measures for failure to attain that 
standard, and sections 182(d)(3) and 185 major stationary source fee 
programs.

VII. Statutory and Executive Order Reviews

    This action proposes to make 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, these proposed actions:
     Are not ``significant regulatory actions'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are 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.);
     Do not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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
     Do 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 proposed 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.

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Air pollution control, National parks, Wilderness Areas.

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

    Dated: January 24, 2012.
W.C. Early,
Acting, Regional Administrator, Region III.
[FR Doc. 2012-2222 Filed 1-31-12; 8:45 am]
BILLING CODE 6560-50-P
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