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[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Rules and Regulations]
[Pages 13289-13292]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5631]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R03-OAR-2010-0431; FRL-9278-8]

Approval of One-Year Extension for Attaining the 1997 8-Hour 
Ozone Standard in the Baltimore Moderate Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving the extension of the attainment date from 
June 15, 2010 to June 15, 2011 for the Baltimore nonattainment area, 
which is classified as moderate for the 1997 8-hour ozone National 
Ambient Air Quality Standard (NAAQS). This extension is based on the 
air quality data for the 4th highest daily 8-hour monitored value 
during the 2009 ozone season. Accordingly, EPA is revising the table 
concerning the 8-hour ozone attainment dates in the State of Maryland. 
EPA is approving the extension of the attainment date for the Baltimore 
moderate ozone nonattainment area in accordance with the requirements 
of the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on April 11, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-0431. All documents in the docket are listed in 
the http://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 http://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. Copies of the State submittal are available at 
Maryland Department of the Environment, 1800 Washington Boulevard, 
Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT: Gregory Becoat, (215) 814-2036, or by 
e-mail at becoat.gregory@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 23, 2010 (75 FR 43114), EPA published a notice of proposed 
rulemaking (NPR) for the State of Maryland. The NPR proposed approval 
of the attainment date extension from June 15, 2010 to June 15, 2011 
for the Baltimore nonattainment area. The Maryland Department of the 
Environment (MDE) formally requested the extension on March 12, 2010.

II. Summary

    Section 172(a)(2)(C) of subpart 1 of the CAA provides for EPA to 
extend the attainment date for an area by one year if the State has 
complied with all the requirements and commitments pertaining to the 
area in the applicable implementation plan and no more than a minimal 
number of exceedances of the NAAQS has occurred in the attainment

[[Page 13290]]

year. Section 181(a)(5) of subpart 2 contains a similar provision for 
the ozone NAAQS. It also requires that an area seeking an extension 
must have met all applicable requirements and commitments pertaining to 
the area in the applicable State Implementation Plan. However, instead 
of providing for an extension where there has been a ``minimal'' number 
of exceedances, it allows an extension only if there is no more than 
one exceedance of the NAAQS in the year proceeding the extension year. 
The language in Section 181(a)(5) reflects the form of the 1-hour ozone 
NAAQS and not the 1997 form of the 8-hour ozone NAAQS. To address this, 
EPA interpreted this provision for purposes of implementing the 1997 8-
hour ozone standard, as set forth at 40 CFR 51.907. Under 40 CFR 
51.907, an area will meet the requirement addressing ``exceedances'' of 
the standard if:
    (a) For the first one-year extension, the area's 4th highest daily 
8-hour average in the attainment year is 0.084 parts per million (ppm) 
or less.
    (b) For the second one-year extension, the area's 4th highest daily 
8-hour value, averaged over both the original attainment year and the 
first extension year, is 0.084 ppm or less.
    (c) For purposes of paragraphs (a) and (b) of this section, the 
area's 4th highest daily 8-hour average shall be from the monitor with 
the 4th highest daily 8-hour average of all the monitors that represent 
that area.
    The State of Maryland submitted the monitoring data for the 
Baltimore moderate 8-hour ozone nonattainment area. EPA's review of the 
actual ozone air quality data in the Air Quality System shows that the 
4th highest daily average 8-hour ozone concentration for the 2009 
attainment year ozone season, for all monitors in the Baltimore 
moderate ozone nonattainment area measured at 0.084 ppm or less, as 
required by 40 CFR 51.907(a). EPA has determined that the requirements 
for a one-year extension of the attainment date have been fulfilled as 
follows:
    (1) The State of Maryland has complied with all requirements and 
commitments pertaining to the area in the applicable ozone 
implementation plan; and
    (2) The Baltimore nonattainment area's 4th highest daily 8-hour 
monitored value during the 2009 ozone season is 0.084 ppm or less.
    On July 23, 2010, EPA received adverse comments from the Gwynns 
Falls Watershed Association and on August 23, 2010, EPA received 
adverse comments from the Environmental Integrity Project and the 
Baltimore Harbor Waterkeep on the NPR. A summary of the comments 
submitted and EPA's response is provided in Section III of this 
document.

III. Summary of Public Comments and EPA Responses

    Comment: The two adverse comments received were substantially 
similar in regards to the proposed one-year extension for attaining the 
1997 8-hour ozone standard in the Baltimore nonattainment area. The 
commenters are concerned that the extension of the attainment date 
extension from June 15, 2010 to June 15, 2011 for the Baltimore 
nonattainment area will only lead to further health issues. The 
commenters also are concerned about the precision of the 
instrumentation used to collect the fourth highest daily 8-hour average 
of 0.083 parts per million (ppm) and the standard error of the 
measurement for the Harford County site in 2009.
    Response: In response to the commenters first concern, the CAA and 
our regulations address the health issues by ensuring that ambient 
levels for the attainment year are at or below the level of the NAAQS. 
The requirement that primary standards include an adequate margin of 
safety is a requisite to protect the public health and intended to 
provide a reasonable degree of protection against hazards that research 
has not yet identified. In response to the commenters second concern 
about the precision of the instrumentation and the standard error of 
the measurement, Appendix A to part 58 of Title 40 of the Code of 
Federal Regulations (Appendix A) provides the quality assurance 
requirements for air monitoring. The appendix specifies the minimum 
quality system requirements applicable to air monitoring data for ozone 
submitted to EPA. Additional guidance for the requirements in Appendix 
A can be found in the ``Quality Assurance Handbook for Air Pollution 
Measurement Systems,'' volume II, part I. Appendix A requires States to 
perform precision checks on all monitors to assess data quality and 
consistency with the established acceptance criteria. Section 3.2.1 of 
Appendix A requires States to perform a one-point quality control (QC) 
check at least once every 2 weeks to measure ozone. Section 4.1.2 of 
Appendix A provides the method for calculating the precision of the 
data measurements. The precision estimate is used to assess the one-
point QC checks for all monitors. The ozone precision acceptance 
criterion is met for the 90 percent Confidence Level of coefficient of 
variation when the calculated value is less than or equal to 7 percent. 
The commenters correctly note that the Harford County site measured at 
0.083 ppm in 2009. EPA's review of the data showed that MDE performed 
the required amount of one-point QC checks in 2009 for the Harford 
County ozone monitor. Results of these one-point QC checks were all 
less than 7 percent, consistent with the established acceptance 
criteria. The 2009 one-point QC check results for the Harford County 
ozone monitor were used to calculate the 90 percent Confidence Level of 
coefficient of variation. Using the precision calculation detailed in 
Section 4.1.2, the results showed that the Harford County ozone monitor 
was below the less than or equal to 7 percent precision ozone 
acceptance criteria for a 90 percent Confidence Limit of coefficient of 
variation. Therefore, the area satisfied the measurement quality 
requirements according to Appendix A for data compliance.

IV. Final Action

    EPA is approving the attainment date extension from June 15, 2010 
to June 15, 2011 for the Baltimore nonattainment area, which is 
classified as moderate for the 1997 8-hour ozone NAAQS.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001). This action merely 
approves State law as meeting Federal requirements and imposes no 
additional requirements beyond those imposed by State law. Accordingly, 
the Administrator certifies that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule 
approves pre-existing requirements under State law and does not impose 
any additional enforceable duty beyond that required by State law, it 
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). This rule also does not have a substantial 
direct effect on one or more Indian Tribes, on the relationship between 
the Federal Government and Indian Tribes, or on the distribution of 
power and responsibilities between the

[[Page 13291]]

Federal Government and Indian Tribes, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000), nor will it have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely determines that each of two areas has attained a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    This rule does not involve establishment of technical standards, 
and thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
As required by section 3 of Executive Order 12988 (61 FR 4729, February 
7, 1996), in issuing this rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct.
    EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings issued under 
the executive order.
    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The rulemaking does not affect the level of protection 
provided to human health or the environment because extending the 
attainment date does not alter the emission reduction measures that are 
required to be implemented in the Baltimore Area, which is classified 
as moderate nonattainment for the 1997 8-hour ozone standard. See, 69 
FR at 23909 (April 30, 2004). Additionally, if the Baltimore Area were 
not granted an extension of its attainment date, EPA's recourse would 
be to initiate a reclassification of the Baltimore Area from its 
current classification of moderate nonattainment to serious 
nonattainment, pursuant to section 181(b)(2) of the CAA. Because the 
Baltimore area was formerly a severe nonattainment area under the 
revoked 1-hour ozone standard (see, 56 FR at 56773, November 6, 1991), 
it is required to continue to implement severe area requirements 
pursuant to EPA's interpretation of ``anti-backsliding'' provision of 
section 172(e) of the CAA. See 69 FR at 23973, April 30, 2004, South 
Coast Air Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 
2006), modified and rehearing den., 489 F.3d 1245 (DC Cir. 2007). The 
severe area requirements are more stringent than both the moderate and 
serious area requirements set forth in Title I, part D, subpart 2 of 
the CAA. Therefore, even if EPA were to not grant the attainment date 
extension and instead move to reclassify the area to serious 
nonattainment, no additional emission reduction measures would be 
required to be implemented in the Baltimore area through a 181(b)(2) 
reclassification. The extension of the attainment deadline for the 1997 
8-hour ozone NAAQS does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 10, 2011. 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 1-year attainment date extension for the 1997 8-hour ozone 
NAAQS for the Baltimore Area may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: March 1, 2011.
W.C. Early,
Acting, Regional Administrator, Region III.

    40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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

0
2. In Sec.  81.321, the table entitled ``Maryland--Ozone (8-Hour 
Standard)'' is amended by revising the entry for Baltimore, MD (Anne 
Arundel County, City of Baltimore, Baltimore County, Carroll County, 
Harford County, and Howard County) and adding footnote 4 to read as 
follows:

Sec.  81.321  Maryland.

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[[Page 13292]]

                                                                     Maryland--Ozone
                                                                    [8-Hour standard]
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        Designated area                                Designation \a\                                          Category/classification
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                                            Date \1\                        Type                        Date \1\                        Type
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Baltimore, MD:
    Anne Arundel County........  .............................  Nonattainment...............  ............................  Subpart 2/Moderate.\ 4\
    City of Baltimore..........  .............................  Nonattainment...............  ............................  Subpart 2/Moderate.\ 4\
    Baltimore County...........  .............................  Nonattainment...............  ............................  Subpart 2/Moderate.\ 4\
    Carroll County.............  .............................  Nonattainment...............  ............................  Subpart 2/Moderate.\ 4\
    Harford County.............  .............................  Nonattainment...............  ............................  Subpart 2/Moderate.\ 4\
    Howard County..............  .............................  Nonattainment...............  ............................  Subpart 2/Moderate.\ 4\
 
                                                                      * * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
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\4\ Attainment date extended to June 15, 2011.

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[FR Doc. 2011-5631 Filed 3-10-11; 8:45 am]
BILLING CODE 6560-50-P
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