[Federal Register Volume 82, Number 211 (Thursday, November 2, 2017)]
[Rules and Regulations]
[Pages 50814-50820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23226]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0638; FRL-9969-93-Region 3]


Determination of Attainment by the Attainment Date for the 2008 
Ozone Standard; Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is making a final 
determination that the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-
DE marginal ozone nonattainment area (the Philadelphia Area) has 
attained the 2008 ozone national ambient air quality standard (NAAQS) 
by the July 20, 2016 attainment date. This final determination is based 
on complete, certified, and quality assured ambient air quality 
monitoring data for the Philadelphia Area for the 2013-2015 monitoring 
period. The effect of this determination of attainment (DOA) is that 
the Philadelphia Area will not be bumped up or reclassified as a 
moderate nonattainment area. The determination of attainment is not 
equivalent to a redesignation, and the States in the Philadelphia Area 
must still meet the statutory requirements for redesignation in order 
to be redesignated to attainment. This determination is also not a 
clean data determination. This action is being taken under the Clean 
Air Act (CAA).

DATES: This final rule is effective on December 4, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
EPA-R03-OAR-2016-0638. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., 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 through 
http://www.regulations.gov, or please contact the person identified in 
the For Further Information Contact section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Gregory Becoat, (215) 814-2036, or by 
email at <a href="/cdn-cgi/l/email-protection#620007010d03164c051007050d101b220712034c050d14"><span class="__cf_email__" data-cfemail="620007010d03164c051007050d101b220712034c050d14">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    On April 18, 2017 (82 FR 18268), EPA published a notice of proposed 
rulemaking (NPR) for the Philadelphia Area. The Philadelphia Area 
consists of Bucks, Chester, Delaware, Montgomery and Philadelphia 
Counties in Pennsylvania; Atlantic, Burlington, Camden, Cape May, 
Cumberland, Gloucester, Mercer, Ocean and Salem Counties in New Jersey; 
Cecil County, Maryland; and New Castle County in Delaware. See 40 CFR 
81.331, 81.339, 81.321, and 81.308. In the NPR, EPA proposed to 
determine, in accordance with its statutory obligations under section 
181(b)(2)(A) of the CAA and the relevant regulatory provisions (40 CFR

[[Page 50815]]

51.1103), that the Philadelphia Area attained the 2008 ozone NAAQS by 
the applicable extended attainment date of July 20, 2016.\1\
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    \1\ In a final rulemaking action published on May 4, 2016, EPA 
determined that the Philadelphia Area did not attain the 2008 ozone 
NAAQS by its July 20, 2015 attainment date, based on ambient air 
quality monitoring data for the 2012-2014 monitoring period. EPA 
determined that the Philadelphia Area qualified for a 1-year 
extension of its attainment date, as provided in section 181(a)(5) 
of the CAA and interpreted by regulation at 40 CFR 51.1107, and 
granted that extension. EPA established a new attainment date of 
July 20, 2016, with attainment to be based on ambient air quality 
monitoring data for the 2013-2015 monitoring period. See 81 FR 
26697. (May 4, 2016). EPA's decision to extend the attainment date 
has been challenged by the State of Delaware in Delaware v. EPA, No. 
16-1230 (D.C. Cir.). That case is currently pending before the Court 
and has not been decided.
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II. EPA's Evaluation

    Section 181(b)(2)(A) of the CAA requires that EPA determine whether 
an area has attained the NAAQS by its attainment date based on complete 
and certified air quality data from the three full calendar years 
preceding an area's attainment date. The 2008 ozone NAAQS is 0.075 
parts per million (ppm). Consistent with the requirements contained in 
40 CFR part 50, Appendix P, which set forth how to compute whether 
monitoring sites and nonattainment areas are attaining the ozone NAAQS, 
EPA reviewed the ozone ambient air quality monitoring data for the 
monitoring period from 2013 through 2015 for the Philadelphia Area, as 
recorded in the air quality system (AQS) database. State and local 
agencies responsible for ozone air monitoring networks supplied and 
quality assured the data. EPA determined that the monitoring sites with 
valid data had design values equal to or less than 0.075 ppm based on 
the 2013-2015 monitoring period. Therefore, based on 2013-2015 
certified air quality data, EPA concludes that the Philadelphia Area 
has attained the 2008 ozone NAAQS.
    Other specific requirements of this determination of attainment by 
the attainment date and the rationale for EPA's final action are 
explained in the NPR and will not be restated here. EPA received 
comments that are addressed in Section III of this rulemaking action.

III. Public Comments and EPA's Responses

    EPA received adverse comments from the Center for Biological 
Diversity (Center), Sierra Club, and Delaware Department of Natural 
Resources and Environmental Control (Delaware). The comments are 
excerpted and/or summarized and addressed in this section:
    Comment 1: EPA's regression approach is inconsistent with EPA's 
Appendix P regulations, and EPA's reliance on the regression analysis 
is unlawful and arbitrary. For one of the two monitors (Brandywine), 
EPA relies on a regression analysis to predict the missing ozone 
concentration measurements and, as a result, purportedly achieves the 
requisite data completeness at that monitor. See U.S. EPA Region 3, 
Delaware Brandywine/Martin Luther King Monitors Data Substitution 
Analysis TSD 2013-2015 Ozone (Dec. 2016) (TSD), at p. 7. Appendix P is 
quite clear, however, that ``[w]hen computing whether the minimum data 
completeness requirements have been met, meteorological or ambient data 
may be sufficient to demonstrate that meteorological conditions on 
missing days were not conducive to concentrations above the level of 
the standard.'' 40 CFR part 50, Appendix P section 2.3(b) (emphasis 
added). EPA's regression analysis does not purport to make any 
demonstrations regarding meteorological conditions, nor can it, as the 
analysis is based purely on ozone monitor readings.
    Response 1: Commenters read 40 CFR part 50, Appendix P, section 
2.3(b) too narrowly, and ignore the last sentence of that section, 
which states that ``Missing days assumed less then [sic] the level of 
the standard are counted for the purpose of meeting the data 
completeness requirement.'' EPA interprets this regulation to allow for 
reasonable, rational assumptions using available data, whether 
meteorological or ambient, to determine whether, on days where an ozone 
monitor is missing data, it is unlikely that the actual ozone levels 
would exceed the NAAQS. For this determination, EPA used three 
different methods to determine whether data from days that the relevant 
ozone monitors were missing data were rationally assumed to be less 
than the level of the NAAQS, and therefore could be counted toward the 
data completeness requirement. These methods are: (1) Analysis of 
temperature; (2) regression analysis; and (3) data substitution. First, 
EPA conducted an analysis that compared temperature (a meteorological 
condition) at the Wilmington Delaware National Airport (ILG) to 
measured ozone readings from 2010 through 2015 at the 18 ozone monitors 
in the Philadelphia Area (See Table 4 of the technical support document 
(TSD) at page 4). The highest daily 8-hour ozone readings from those 18 
Philadelphia Area ozone monitors on all days (not just missing days) 
was compared to the maximum daily temperatures at the Wilmington 
Airport on the corresponding days. The results of this analysis, 
presented in Figure 1 on page 6 of the TSD, shows that from 2010 
through 2015, none of the 18 monitors recorded an 8-hour ozone level 
above 0.075 ppm when the temperature at Wilmington Airport was at or 
below 77 degrees Fahrenheit ([deg]F). This analysis identified 18 days 
in 2013, 30 days in 2014, and 27 days in 2015 with missing ozone 
readings that could reasonably be assumed to be below the 0.075 ppm 
threshold at the Martin Luther King (MLK) monitor (AQS ID 10-003-2004) 
in Delaware. The temperature-based analysis alone added enough complete 
days to the MLK monitor to meet the data completeness threshold. For 
the Brandywine monitor (AQS ID 10-003-1010), the temperature-based 
analysis identified 22 days during 2013, 9 days during 2014, and 8 days 
during 2015 that could reasonably be assumed to be below a 0.075 ppm 
ozone reading. However, the temperature analysis did not add enough 
complete days to the Brandywine monitor to meet the Appendix P data 
completeness level because there was an insufficient number of days 
below 77[emsp14][deg]F at the Wilmington Airport in which the 
Brandywine monitor was missing data. Therefore, EPA performed a 
regression analysis in order to fill in the remaining data gap as well 
as to validate the data results (for both monitors) obtained from the 
analysis of temperature method.
    This regression analysis relied on ambient data--measured ozone 
levels at a nearby certified ozone monitor--to predict ozone levels at 
monitors with missing data. This type of analysis is only appropriate 
where readings from a nearby certified ozone monitor closely correlate 
with readings from the monitors with missing data. In this case, EPA 
examined the two other air quality monitors located in the same county 
as the Brandywine and MLK monitors, compared recorded ozone readings of 
all four monitors on days and found that the Bellefonte2 monitor (AQS 
ID 10-003-1013), which is located five miles from both Brandywine and 
MLK, correlated most closely with those monitors. As explained in more 
detail in the TSD, the Bellefonte2 monitor is strongly correlated with 
both the Brandywine and MLK monitors (TSD at pp. 8-10). Using this 
information, EPA determined a separate linear regression equation for 
each of the Brandywine and MLK monitors. These two equations allowed 
calculation of predicted ozone

[[Page 50816]]

readings for the Brandywine or MLK monitor on days when those monitors 
were missing data by using actual ozone readings from the Bellefonte2 
monitor (TSD at p.11) in the equation. The values calculated using the 
linear regression equations for the MLK and Brandywine monitors are 
shaded green in Table 6 of the TSD on pages 11-16. EPA took a 
conservative approach and added, as complete days, only those days at 
the Brandywine monitor where the predicted ozone value was less than 
0.060 ppm. That is, EPA only employed the regression analysis method to 
add days toward the data completeness requirement for the Brandywine 
monitor where EPA's predicted ozone value was well below the level of 
the NAAQS. The days added as ``complete'' days to the Brandywine 
monitor via this method (linear regression equation showing less than 
0.060 ppm ozone) are represented by the numeral ``2'' in Table 9 of the 
TSD. The regression analysis added 8 complete days in 2013 and 16 
complete days in 2014 to the Brandywine monitor (TSD, p.16) and also 
validated and confirmed EPA's conclusions from its temperature method 
analysis at this monitor. Since the analysis of temperature method 
provided sufficient complete data for the MLK monitor, EPA performed a 
similar regression analysis for the MLK monitor only for the purpose of 
confirming and validating its conclusions drawn from the temperature 
analysis. Both the temperature analysis and regression methods produced 
the same results at the MLK monitor.
    EPA also used a third method--a data substitution analysis--as a 
further check on the validity of the first two methods on the 
Brandywine and MLK monitors. When any of the four monitors in New 
Castle County, Delaware, was missing a valid day of data during the 
2013-2015 ozone seasons, EPA looked at ambient data in the form of 
actual recorded ozone values at the other New Castle County monitors 
and substituted the highest recorded ozone value for the missing 
value(s) at the other monitor(s). After adding these substituted data 
values, a 2013-2015 ``test design value'' was calculated for all four 
monitors. None of the four monitors' calculated test design values, 
including Brandywine and MLK, exceeded the ozone standard of 75 ppb. 
See Table 8, TSD at p. 17.
    Comment 2: The monitor data relied upon by EPA do not actually 
demonstrate that exceedances of the NAAQS will not occur at 
temperatures below 78 degrees. (Sierra Club, p. 2). For both of the 
monitors (Brandywine and MLK), EPA relies heavily on a simplistic 
comparison of monitored ozone values at monitors within the 
Philadelphia Nonattainment Area and daily high temperature data from 
the Wilmington Delaware National Airport to purportedly show that 
meteorological conditions on days with high temperatures of 
77[emsp14][deg]F or below are not conducive to ozone formation. TSD at 
p. 3. But EPA's conclusion regarding the 77[emsp14][deg]F temperature 
threshold is not supported by data upon which EPA relies and is 
inconsistent with prior statements by the agency regarding the 
parameters that influence ozone formation. With regard to the data, 
EPA's sample of monitor-days is far too small a data set from which to 
conclude that 77[emsp14][deg]F represents a magical limit below which 
ozone concentrations are assured to be below the NAAQS. Indeed, Figure 
1 of the TSD shows that at 78[emsp14][deg]F--just one degree above the 
level at which EPA expresses confidence that no NAAQS violations will 
occur--the maximum monitored ozone level in the Philadelphia 
Nonattainment Area was close to 85 parts per billion, well above the 75 
part per billion (ppb) NAAQS. Moreover, Figure 1 also shows that at 
68[emsp14][deg]F--nine degrees below the temperature threshold 
identified by EPA--maximum monitored ozone levels in the Philadelphia 
Nonattainment Area were within one part per billion of the NAAQS.
    Response 2: It is not necessary to demonstrate that exceedances of 
the NAAQS would never occur at temperatures below 78[emsp14][deg]F, nor 
was the purpose of the analysis of temperature method to do so. The 
methods used to determine data completeness are consistent with 40 CFR 
part 50, Appendix P, Section 2.3(b) and are grounded in science. As an 
example, EPA approved a similar demonstration from Delaware in 2010 for 
the same Brandywine ozone monitoring site which relied on a similar 
ozone and temperature comparison. This demonstration was referenced in 
a clean data determination, which is a different type of rulemaking 
action that also relies on air quality data, for the Philadelphia-
Wilmington-Atlantic City, PA-NJ-DE-MD nonattainment area for the 1997 
ozone NAAQS which was finalized in 2012 (77 FR 17341-17343). The 
Delaware demonstration relied on ambient ozone and temperature data for 
years 1997-2009, and reached a similar conclusion that ozone levels did 
not exceed 0.075 ppm in the Philadelphia area on any days where the 
daily maximum temperature was less than 77[emsp14][deg]F. While not 
necessary for the data completeness determination for this Philadelphia 
determination of attainment, this example is provided to demonstrate 
that data completeness procedures conducted by Delaware in the past 
have arrived at the same conclusion with regard to the use of 
temperature data thresholds. Thus, EPA does not agree that the 
77[emsp14][deg]F temperature threshold below which no ozone exceedances 
have occurred in the Philadelphia Area is not supported by the 
evidence. The fact that sometimes very high levels of ozone occur at 78 
degrees or that sometimes high levels of ozone (yet still below 0.075 
ppm) occur at much lower temperatures does not invalidate the 
77[emsp14][deg]F threshold in this instance. Also, one measured ozone 
value above 0.075 ppm does not equal a NAAQS exceedance because of the 
definition of design value, which is a statistically-based measure of 
the 4th high over a 3-year period. Regarding the sample size, EPA notes 
that Delaware's analysis of temperature versus ozone concentrations for 
the period of 1997 to 2009, when combined with EPA's analysis of 
temperature versus ozone concentrations for the period of 2010 through 
2015, provides nineteen years of data supporting the temperature 
analysis conclusion. The following sources further discuss the 
importance of the relationship between temperature and ozone formation 
as established by both EPA and the scientific literature for decades:
    (1) Camalier, L., Cox, W., and Dolwick, P. (2007). The effects of 
meteorology in urban areas and their use in assessing ozone trends. 
Atmospheric Environment, Volume 41, Issue 33, pages 7127-7137; (2) Cox, 
W. and Chu, S (1996). Assessment of interannual ozone variation in 
urban areas from a climatological perspective. Atmospheric Environment, 
Volume 30, Issue 14, pages 2615-2615; (3) U.S. EPA (2016). Trends in 
Ozone Concentrations Adjusted for Weather Conditions. https://www.epa.gov/air-trends/trends-ozone-adjusted-weather-conditions; and; 
(4) Walcek, C. and Yuan, H. (1995). Calculated influence of 
temperature-related factors on ozone formation rates in the Lower 
Troposphere. Journal of Applied Meteorology, Volume 34, pages 1056-
1069.
    Comment 3: EPA's proposed attainment determination is not 
protective of public health because monitoring data from the 2016 ozone 
season no longer supports a finding that the Philadelphia Area is 
meeting the 2008 ozone NAAQS.
    Response 3: To determine whether an area attained by the 2008 ozone 
NAAQS attainment date of July 20, 2016, EPA is

[[Page 50817]]

required to rely on the three previous full years of data, which is 
2013-2015. CAA section 181(b)(2)(A); 40 CFR part 50, Appendix P, 
section 2.3(b). Any data occurring in calendar year 2016 cannot be used 
in this determination because July 20, 2016 is in the middle of the 
2016 ozone season and would produce only incomplete non-quality 
assured, and uncertified data, as of the July 2016 attainment date. The 
statutory provision governing the type of determination of attainment 
EPA is finalizing today is very clear: ``the Administrator shall 
determine, based on the area's design value (as of the attainment 
date), whether the area attained the standard by that date.'' CAA 
section 181(b)(2)(A) (emphasis added). When making determinations of 
attainment by the attainment deadline, EPA has consistently applied 
this unambiguous language as restricting its analysis to the years of 
data that constitute the basis for an area's design value as of the 
specific attainment deadline. EPA's regulations at 40 CFR part 50, 
Appendix P further clarify that the design value be derived from 
``three consecutive, complete calendar years of air quality monitoring 
data.'' 40 CFR part 50, Appendix P, section 2.3(b) (emphasis added). 
The commenter's request that EPA use non-quality assured, uncertified, 
incomplete calendar year 2016 data for this section 181(b)(2) 
determination is not permitted under the statute and regulations.
    Comment 4: EPA illegally extended the attainment date deadline.
    Response 4: As noted in the proposed rule (82 FR 18269, fn 2), the 
issue of whether EPA ``illegally'' extended the attainment date 
deadline from July 20, 2015 to July 20, 2016 is the subject of a 
petition for review filed by the State of Delaware on July 5, 2016 in 
the U.S. Court of Appeals for the District of Columbia Circuit. The 
petition has been fully briefed, and oral argument was held on October 
5, 2017. State of Delaware Department of Natural Resources & 
Environmental Control v. U.S. Environmental Protection Agency, No. 16-
1230. The final rule extending the Philadelphia Area's attainment date 
is therefore legally effective at this time and outside the scope of 
this rulemaking.
    Comment 5: The CAA requires that a finding of attainment be made 
only when all measures needed for attainment have been implemented, and 
the current air quality meets the standard.
    Response 5: Commenters are incorrect regarding the CAA's 
requirements for a section 181(b)(2) determination of attainment by the 
attainment date. Nowhere in that provision does the CAA require that 
such a finding can only be made ``when all measures needed for 
attainment have been implemented'' and ``current air quality meets the 
standard.'' Demonstrations of attainment of the 2008 ozone NAAQS by the 
attainment date require using the three calendar years of certified air 
quality data preceding the attainment date, which is 2013-2015.
    Comment 6: Section 181(b)(2) does not restrict EPA to considering 
only fully certified, quality assured and complete data from 2013-2015, 
and the resulting 3-year design values calculated from those data. EPA 
should consider the preliminary 2016 data, and has considered data 
other than the three years of data prior to the attainment date in past 
rulemakings, including:
    (1) The January 25, 2012 proposed determination of attainment and 
clean data determination for the 1997 ozone NAAQS for the New York-New 
Jersey-Connecticut Nonattainment Area (NY-NJ-CT NAA) at 77 FR 3720; and
    (2) The July 18, 2012 final determination of attainment and clean 
data determination for the NY-NJ-CT NAA at 77 FR 36163; and
    (3) The May 15, 2014 proposal to rescind the clean data 
determination for the NY-NJ-CT NAA at 79 FR 27830.

The commenter asserts that these actions ``. . . prove[ ] that EPA has 
considered uncertified data in proposals involving findings of 
attainment/clean data determinations.''
    Response 6: All of the EPA actions cited by the Commenter support 
EPA's use of only the three years of complete, quality-assured and 
certified ozone monitoring data preceding the attainment date when 
making this section 181(b)(2) determination of attainment by the 
attainment date. EPA often makes 181(b)(2) determinations of attainment 
by the attainment date in the same actions as clean data 
determinations, but these are two distinct actions with different 
statutory and regulatory requirements and consequences. Therefore, it 
is reasonable for EPA to consider air quality monitoring data 
differently for these two types of actions. EPA's regulations governing 
clean data determinations for the various pollutants, including ozone, 
interpret the CAA as suspending attainment planning requirements for 
only as long as the area continues to attain the standard. See, e.g., 
40 CFR 51.1118. Thus, for a CDD, EPA requires an attaining design value 
based on three full years of data, and also may consider any additional 
preliminary data as well. Because the regulatory consequences of a 
clean data determination depend on continued attaining air quality, 
review of data until the final rulemaking as well as post-rulemaking 
review of data is appropriate. By contrast, section 181(b)(2) has the 
specific statutory consequence of deciding whether or not an area is 
reclassified to a higher classification. Under the CAA, if an area 
attains the NAAQS by its statutory attainment date, it cannot be 
``bumped up'' or reclassified, even if it later violates the standard 
after that date. The Act therefore instructs the EPA to make a 
determination of an area's air quality attainment status as of a date 
certain--the area's attainment deadline.
    The January 25, 2012 proposal cited by Commenter contains both a 
determination of attainment by the attainment date and a clean data 
determination. The 2012 proposal specifically states that ``EPA 
proposes to determine, in accordance with section 181(b)(2), that the 
NY-NJ-CT area attained the 1997 eight-hour ozone standard by the 
applicable deadline for that standard, June 15, 2010. This proposed 
determination is based on complete, quality-assured and certified data 
for 2007-2009.'' 77 FR 3720, 3722. In the next paragraph, the proposal 
states ``[i]n addition, EPA is separately and independently proposing 
to determine that the NY-NJ-CT area is currently attaining the 1997 
eight-hour ozone standard, based on complete, quality-assured and 
certified data for 2008-2010 and preliminary data for 2011 that 
indicate continued attainment.'' Id. This second paragraph describes 
EPA's clean data determination (CDD), and therefore may consider all 
data up to the point of the rulemaking, including preliminary data. In 
this action, EPA is only making a section 181(b)(2) determination of 
attainment by the attainment date for the Philadelphia Area. If EPA 
were making a clean data determination for the Philadelphia Area, the 
preliminary 2016 data could be considered as a supplement.
    Similarly, the June 18, 2012 \2\ final action for the NY-NJ-CT NAA 
uses only complete, quality-assured and certified 2007-2009 data for 
the determination of attainment by the June 15, 2010 attainment date, 
while using complete, quality-assured and certified 2008-2010 data and 
preliminary 2011 ozone data in making its clean data determination. See 
77 FR 36163 (June 18, 2012). EPA's 2014 action proposing to rescind the 
2012

[[Page 50818]]

clean data determination for the NY-NJ-CT NAA followed the same 
practice of considering all recent data. See 79 FR 27830, 27832 (May 
15, 2014). Thus, these previous actions cited by the comment do not 
show that EPA uses or considers incomplete, uncertified and preliminary 
data when making a section 181(b)(2) determinations of attainment by 
the attainment date. Today's action is therefore consistent with the 
other actions cited by the Commenter.
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    \2\ The comment incorrectly cites July 18, 2012 as the Federal 
Register date for this final determination. The correct date is June 
18, 2012. See 77 FR 36163.
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    Comment 7: DNREC objects to EPA performing the data substitution 
analysis for the two Delaware monitors without notifying Delaware and 
giving Delaware an opportunity to review prior to publication.
    Response 7: EPA is required to make this determination of 
attainment by the attainment date. This determination of attainment 
cannot be made without complete air quality data for 2013-2015. Because 
DNREC did not submit a data substitution analysis for the two Delaware 
monitors with incomplete data, EPA was required to perform this 
analysis.
    Comment 8: Early 2017 ozone season data show that the Philadelphia 
Area has already experienced two episodes of nonattaining air quality 
based on preliminary maximum ozone concentrations of 79 ppb in Delaware 
and 86 ppb in Philadelphia.
    Response 8: EPA's determination of attainment for the 2008 ozone 
NAAQS for the Philadelphia Area is based on complete, quality assured, 
and certified data for the 2013-2015 ozone seasons in accordance with 
section 181(b)(2) of the Act and 40 CFR parts 50, 51 and 58.
    Comment 9: EPA's notice did not explain the implications of a 
finding of attainment in its proposal, and Delaware believes that a 
finalization of this finding will suspend CAA obligations for the area. 
Therefore, if EPA makes a final determination of attainment based on 
the 2013-2015 data, it must immediately make a finding of nonattainment 
using 2014-2016 data.
    Response 9: EPA's notice did not explain in detail all the 
implications of the section 181(b)(2) determination of attainment by 
the attainment date. One consequence of the determination of attainment 
by the extended attainment date is that the Philadelphia Area will not 
be reclassified as a Moderate nonattainment area. See CAA section 
181(b)(2)(A). However, although the Philadelphia Area will remain a 
Marginal nonattainment area, since it is part of the ozone transport 
region (OTR) it will need to continue to comply with the additional 
requirements applicable to OTR states, including moderate area 
requirements. Furthermore, EPA clearly stated in the Summary section of 
the NPR that this action was not a redesignation of the Philadelphia 
Area to attainment. EPA also reiterates that this action is also not a 
clean data determination under 40 CFR 51.1118. A clean data 
determination, if it were to occur at some future time, would have the 
effect of suspending any attainment planning requirements. Regarding 
the commenter's statement that EPA must immediately make a finding of 
nonattainment (or a nonattainment designation) using the 2014-2016 
ozone data, such a finding would be meaningless in this context. The 
Philadelphia Area continues to be designated nonattainment for the 2008 
ozone NAAQS, and EPA is not, in this notice, issuing a clean data 
determination such that the Agency would need to rescind such 
determination based on more recent air quality data. Given that today's 
action is not changing the Philadelphia Area's marginal nonattainment 
designation, the suggestion that the Agency issue a nonattainment 
designation is inappropriate. If certified air quality data indicates 
issues with continuing attainment of the 2008 ozone NAAQS, the EPA will 
work with the relevant states in the Philadelphia Area and, to the 
extent necessary, use appropriate CAA authorities to address those air 
quality issues.
    Comment 10: EPA should not make a determination of attainment for 
the 2008 ozone NAAQS when data shows that the 2015 ozone NAAQS of 70 
ppm is not currently being met.
    Response 10: EPA's determination of attainment for the 2008 ozone 
NAAQS by the attainment date of July 20, 2016, is statutorily required 
by section 181(b)(2), and requires that EPA use 2013-2015 ozone air 
quality data in determining whether the 2008 NAAQS has been met, as of 
the July 20, 2016 attainment date for the 2008 ozone NAAQS. The 2015 
ozone NAAQS is not germane to the specific question of whether the area 
attained the 2008 ozone NAAQS by the attainment date.
    Comment 11: Delaying the determination of nonattainment for the 
Philadelphia Area will only delay adoption of needed SIP measures to 
bring the area into attainment.
    Response 11: The determination of attainment by the attainment date 
under 181(b)(2) does not suspend any state planning requirements that 
are in place for the 2008 ozone NAAQS. The effect of this action will 
result in the Philadelphia Area remaining as a marginal nonattainment 
area for the 2008 ozone NAAQS, and keeping all currently applicable 
planning requirements in place, including OTR requirements.
    Comment 12: The commenter objects to efforts by Pennsylvania 
Department of Environmental Protection (PADEP) to remove 2016 ozone 
data based on ``exceptional events,'' especially if the exceptional 
event is an increasing number of heat waves caused by global warning.
    Response 12: This comment is not germane to this determination of 
attainment because EPA did not rely on any Pennsylvania ozone 
monitoring data from 2016 in making its determination of attainment. As 
required by the CAA and EPA regulations regarding determinations of 
attainment by the attainment date, EPA used only complete, quality-
assured and certified ozone data from calendar years 2013-2015.
    Comment 13: The Center has further concerns about EPA's approach 
for meeting data completeness requirements, especially given the 
exceedances of the 2008 and 2015 NAAQS as noted above. The proposed 
rule notes that EPA was able to ``add'' missing data from the 
Brandywine and MLK monitors by conducting ``an analysis of the 
meteorological data and a regression analysis'' and performed a 
``substitution analysis as a check on the validity'' of that analysis. 
See, 82 FR 18270 (April 18, 2017). It would be more appropriate to 
require redundancy at monitoring stations prone to malfunctioning as 
opposed to relying on data substitutions in areas suffering from ozone 
levels at or above the NAAQS to assure that the most accurate data is 
collected.
    Response 13: Please see the responses to comments 1 and 2 above 
with regard to the adequacy of the methods used to meet the minimum 
data completeness requirements at the MLK and Brandywine monitors. As 
to requiring redundant monitors, the Philadelphia Metropolitan 
Statistical Area (MSA) is currently meeting monitoring requirements 
specified in 40 CFR part 58 Appendix D. Appendix D does not require 
redundant monitoring for ozone. EPA has made recommendations to 
Delaware Department of Natural Resources and Environmental Control 
(DNREC) to try to reduce the data loss at the Brandywine air monitoring 
site. EPA is required to perform technical systems audits on each 
primary quality assurance organization at a frequency of once every 
three years. DNREC was audited by EPA Region 3 on May 10-12, 2016. One 
of the major findings of this audit was the incompleteness issues at 
the Brandywine site. EPA recommended as corrective action to mitigate 
potential

[[Page 50819]]

data loss due to down power lines that DNREC do preemptive tree 
trimming each year. In addition, EPA recommended having a backup power 
source at the site. DNREC's response to EPA's recommendation was that a 
back-up power source is not feasible. DNREC will consider purchasing a 
battery-operated FEM monitor as a back-up in case of sustained power 
loss at the site, if resources are available.
    Comment 14: EPA also received comments that were not germane to 
this final ruling but referred generally to the support of continuing 
implementation of air quality standards and regulations. The comments 
included support of keeping EPA regulations in place to protect human 
health and the environment.
    Response 14: EPA appreciates the supportive comments, and notes 
that ozone air quality monitoring will continue and existing air 
quality standards and regulations will remain in place. This 
determination of attainment by the attainment date does not reduce or 
revoke any existing ozone monitoring or control requirements.

IV. Final Action

    EPA is making a final determination, in accordance with its 
obligations under section 181(b)(2)(A) of the CAA and 40 CFR 51.1103, 
that the Philadelphia Area attained the 2008 ozone NAAQS by the 
applicable attainment date of July 20, 2016. This determination of 
attainment does not constitute a redesignation to attainment, and is 
also not a clean data determination.

V. Statutory and Executive Order Reviews

A. General Requirements

    This rulemaking action finalizes a determination of attainment for 
the 2008 ozone NAAQS based on air quality and does not impose 
additional requirements. For that reason, this determination of 
attainment:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
    <bullet> Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> 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);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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 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 January 2, 2018. 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 Philadelphia Area attained the 
2008 ozone NAAQS by its July 20, 2016 attainment date 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, Ozone, Reporting and recordkeeping requirements.

    Dated: October 11, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone, Reporting and recordkeeping requirements.

    Dated: October 6, 2017.
Catherine R. McCabe,
Acting Regional Administrator, Region 2.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart I--Delaware

0
2. In Sec.  52.425, paragraph (d) is added to read as follows:


Sec.  52.425  Determinations of attainment.

* * * * *
    (d) Based upon EPA's review of the air quality data for the 3-year 
period 2013 to 2015, Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 
marginal ozone nonattainment area has attained the 2008 8-hour ozone 
national ambient air quality standard (NAAQS) by the applicable 
attainment date of July 20, 2016. Therefore, EPA has met the 
requirement pursuant to CAA section 181(b)(2)(A) to determine, based on 
the area's air quality as of the attainment date, whether the area 
attained the standard. EPA also determined that the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE marginal ozone nonattainment area 
will not be reclassified for failure to attain by its

[[Page 50820]]

applicable attainment date pursuant to section 181(b)(2)(A).

Subpart V--Maryland

0
3. In Sec.  52.1082, paragraph (j) is added to read as follows:


Sec.  52.1082  Determinations of attainment.

* * * * *
    (j) Based upon EPA's review of the air quality data for the 3-year 
period 2013 to 2015, Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 
marginal ozone nonattainment area has attained the 2008 8-hour ozone 
national ambient air quality standard (NAAQS) by the applicable 
attainment date of July 20, 2016. Therefore, EPA has met the 
requirement pursuant to CAA section 181(b)(2)(A) to determine, based on 
the area's air quality as of the attainment date, whether the area 
attained the standard. EPA also determined that the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE marginal ozone nonattainment area 
will not be reclassified for failure to attain by its applicable 
attainment date pursuant to section 181(b)(2)(A).

Subpart FF--New Jersey

0
4. In Sec.  52.1576, paragraph (d) is added to read as follows:


Sec.  52.1576  Determinations of attainment.

* * * * *
    (d) Based upon EPA's review of the air quality data for the 3-year 
period 2013 to 2015, Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 
marginal ozone nonattainment area has attained the 2008 8-hour ozone 
national ambient air quality standard (NAAQS) by the applicable 
attainment date of July 20, 2016. Therefore, EPA has met the 
requirement pursuant to CAA section 181(b)(2)(A) to determine, based on 
the area's air quality as of the attainment date, whether the area 
attained the standard. EPA also determined that the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE marginal ozone nonattainment area 
will not be reclassified for failure to attain by its applicable 
attainment date pursuant to section 181(b)(2)(A).

Subpart NN--Pennsylvania

0
5. In Sec.  52.2056, paragraph (o) is added to read as follows:


Sec.  52.2056  Determinations of attainment.

* * * * *
    (o) Based upon EPA's review of the air quality data for the 3-year 
period 2013 to 2015, Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 
marginal ozone nonattainment area has attained the 2008 8-hour ozone 
national ambient air quality standard (NAAQS) by the applicable 
attainment date of July 20, 2016. Therefore, EPA has met the 
requirement pursuant to CAA section 181(b)(2)(A) to determine, based on 
the area's air quality as of the attainment date, whether the area 
attained the standard. EPA also determined that the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE marginal ozone nonattainment area 
will not be reclassified for failure to attain by its applicable 
attainment date pursuant to section 181(b)(2)(A).

[FR Doc. 2017-23226 Filed 11-1-17; 8:45 am]
 BILLING CODE 6560-50-P


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