
[Federal Register Volume 77, Number 95 (Wednesday, May 16, 2012)]
[Rules and Regulations]
[Pages 28782-28785]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11651]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0714; FRL-9670-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware, New Jersey, and Pennsylvania; Determinations of Attainment of 
the 1997 Annual Fine Particulate Standard for the Philadelphia-
Wilmington Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is making two determinations regarding the Philadelphia-
Wilmington, PA-NJ-DE fine particulate (PM2.5) nonattainment 
area (the Philadelphia Area). First, EPA is making a determination that 
the Philadelphia Area has attained the 1997 annual PM2.5 
national ambient air quality standard (NAAQS) by its attainment date of 
April 5, 2010. This determination is based upon quality assured and 
certified ambient air monitoring data that show the area monitored 
attainment of the 1997 annual PM2.5 NAAQS for the 2007-2009 
monitoring period. Second, EPA is making a clean data determination, 
finding that the Philadelphia Area has attained the 1997 
PM2.5 NAAQS, based on quality assured and certified ambient 
air monitoring data for the 2007-2009 and 2008-2010 monitoring periods. 
In accordance with EPA's applicable PM2.5 implementation 
rule, this determination suspends the requirement for the Philadelphia 
Area to submit an attainment demonstration, reasonably available 
control measures/reasonably available control technology (RACM/RACT), a 
reasonable further progress (RFP) plan, and contingency measures 
related to attainment of the 1997 annual PM2.5 NAAQS for so 
long as the area continues to attain the 1997 annual PM2.5 
NAAQS. These actions are being taken under the Clean Air Act (CAA).

DATES: This rule is effective on June 15, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2011-0714. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning EPA's 
action related to Delaware or Pennsylvania, please contact Maria A. 
Pino, (215) 814-2181, or by email at pino.maria@epa.gov. If you have 
questions concerning EPA's action related to New Jersey, please contact 
Henry Feingersh, (212) 637-3382, or by email at 
feingersh.henry@epa.gov.

SUPPLEMENTARY INFORMATION: The following outline is provided to aid in 
locating information in this action.

I. Background
II. Summary of Actions
III. Summary of Public Comments and EPA Responses
IV. Final Actions
V. Statutory and Executive Order Reviews

I. Background

    On January 23, 2012, EPA published a direct final rulemaking (77 FR 
3147) and companion notice of proposed rulemaking (NPR) (77 FR 3223) 
for the States of Delaware and New Jersey and the Commonwealth of 
Pennsylvania (the States). In the January 23, 2012 rulemaking action, 
EPA proposed to determine that the Philadelphia Area attained the 1997 
PM2.5 NAAQS by its attainment date, April 5, 2010. EPA also 
proposed to make a clean data determination, finding that the 
Philadelphia Area has attained the 1997 PM2.5 NAAQS.
    Because EPA received adverse comment, EPA withdrew the direct final 
rule on March 13, 2012 (77 FR14697), and the direct final rule was 
converted to a proposed rule.

II. Summary of Actions

    These actions do not constitute a redesignation to attainment under 
section 107(d)(3) of the CAA. The designation status of the 
Philadelphia Area will remain nonattainment for the 1997 annual 
PM2.5 NAAQS until such

[[Page 28783]]

time as EPA determines that the Philadelphia area meets the CAA 
requirements for redesignation to attainment, including an approved 
maintenance plan.

A. Determination of Attainment by the Attainment Date

    EPA is making a determination that the Philadelphia Area has 
attained the 1997 annual PM2.5 NAAQS by its applicable 
attainment date of April 5, 2010. This determination is based upon 
quality assured and certified ambient air monitoring data for the 2007-
2009 monitoring period that shows the area has monitored attainment of 
the 1997 PM2.5 NAAQS during this monitoring period. 
Therefore, EPA has met its requirement pursuant to CAA section 179(c) 
to determine, based on the area's air quality as of the attainment 
date, whether the area attained the standard by that date. The effect 
of a final determination of attainment by the area's attainment date 
will be to discharge EPA's obligation under CAA section 179(c).

B. Clean Data Determination

    EPA is making a determination that the Philadelphia Area is 
attaining the 1997 annual PM2.5 NAAQS. This determination is 
based upon quality assured and certified ambient air monitoring data 
that show the area has monitored attainment of the 1997 
PM2.5 NAAQS for the 2007-2009 and 2008-2010 monitoring 
periods. This determination of attainment suspends the CAA requirements 
for the Philadelphia Area to submit an attainment demonstration and the 
associated RFP plan, contingency measures, RACM/RACT analysis, and any 
other planning requirements related to attainment of the 1997 annual 
PM2.5 NAAQS. These requirements remain suspended for so long 
as the area continues to attain the 1997 annual PM2.5 NAAQS.
    The clean data determination suspends the requirement for the 
Philadelphia Area to submit an attainment demonstration, RACM/RACT, RFP 
plan, contingency measures, and any other planning requirements related 
to attainment of the 1997 annual PM2.5 NAAQS. This 
suspension remains in effect until such time, if any, that EPA (i) 
redesignates the area to attainment at which time those requirements no 
longer apply, or (ii) subsequently determines that the area has 
violated the 1997 annual PM2.5 NAAQS. This determination is 
separate from, and does not influence or otherwise affect, any future 
designation determination or requirements for the Philadelphia Area 
based on any new or revised PM2.5 NAAQS. It remains in 
effect regardless of whether EPA designates the Philadelphia Area as a 
nonattainment area for purposes of any new or revised PM2.5 
NAAQS. Although these requirements are suspended, EPA is not precluded 
from acting upon these elements. The States of Delaware and New Jersey, 
and the Commonwealth of Pennsylvania have submitted state 
implementation plan (SIP) revisions for their portions of the 
Philadelphia Area to EPA for review and approval.

C. Ambient Air Quality Monitoring Data

    Consistent with the requirements contained in 40 CFR part 50, EPA 
has reviewed the PM2.5 ambient air monitoring data for the 
monitoring periods 2007-2009 and 2008-2010 for the Philadelphia Area, 
as recorded in the EPA Air Quality System database. On the basis of 
that review, EPA has concluded that the Philadelphia Area attained the 
1997 annual PM2.5 NAAQS based on data for the 2007-2009 and 
2008-2010 monitoring periods. In the Technical Support Document (TSD) 
prepared for this action, EPA evaluates the air quality data for the 
Philadelphia Area. For details, please refer to EPA's TSD, which can be 
viewed at http://www.regulations.gov.

III. Summary of Public Comments and EPA Responses

    On January 24, 2012, EPA received adverse comments on the direct 
final rule from Mr. Robert Ukeiley. A summary of the comments submitted 
and EPA's response is provided below.
    Comment: The commenter alleges that the determination of attainment 
here (``clean data determination'') violates CAA section 110(l) because 
EPA has not completed its review of the PM2.5 NAAQS. The 
commenter asserts that the clean data determination should not be 
finalized until after EPA promulgates a new PM2.5 NAAQS.
    Response: EPA's rulemaking action here addresses only the 1997 
annual PM2.5 NAAQS, and has no bearing on any other NAAQS, 
including any future revised NAAQS. Therefore, this comment is not 
relevant to this rulemaking action.
    Comment: The commenter states that this clean data determination 
violates CAA section 110(l) because all other NAAQS would benefit from 
the Philadelphia Area fully implementing the 1997 annual 
PM2.5 NAAQS, including implementation of RACT. The commenter 
alleged that EPA failed to conduct an analysis of the impacts of the 
clean data determination, and this will interfere with other NAAQS 
attainment.
    Response: CAA section 110(l) applies explicitly and only to a 
``revision to an implementation plan.'' As set forth in the response to 
comment above, EPA's rulemaking here is restricted to EPA's 
determination, based on ambient air quality, that the Philadelphia Area 
is attaining the 1997 annual PM2.5 standard. It is not a SIP 
revision, and thus section 110(l) is by its own terms is not applicable 
to this rulemaking. It is not this determination of attainment, but 
rather EPA's PM2.5 implementation rule, 40 CFR 51.1004(c), 
that specifies the consequence of the determination as suspension of 
the area's obligations to submit an attainment demonstration, a RFP 
plan, contingency measures and other planning requirements related to 
attainment as SIP revisions for as long as the area continues to 
attain. In any case, the requirements that are suspended by the 
regulation are related solely to attainment for the 1997 annual 
PM2.5 standard. EPA is determining, and the commenter does 
not contest, that the area is attaining the 1997 annual 
PM2.5 standard, and that the suspension of attainment 
planning SIP submissions lasts only as long as the area is meeting that 
standard. No other requirements are suspended and no control measures 
in the SIP are being relaxed. This action has no effect on control 
measures, or air quality, in the area. In sum, no evaluation under 
section 110(l) is required by law, and even if such an evaluation were 
required, EPA would conclude that this determination of attainment 
would not interfere with attainment, reasonable further progress 
towards attainment, or any other applicable requirement of the CAA. EPA 
notes that this same individual submitted similar comments on 
determinations of attainment (``clean data determinations'') for the 
1997 8-hour ozone NAAQS for the Pittsburgh-Beaver Valley nonattainment 
area in Pennsylvania (Pittsburgh Area) and the Charlotte-Gastonia-Rock 
Hill nonattainment area in North Carolina and South Carolina (Charlotte 
Area), and for the 1997 annual PM2.5 NAAQS for the Kentucky 
Portion of the Cincinnati-Hamilton nonattainment area (Cincinnati-
Hamilton Area). EPA responded to those comments in final rulemaking 
actions for the Pittsburgh, Charlotte, and Cincinnati-Hamilton Areas, 
at 76 FR 31237, 76 FR 70656, and 76 FR 77903, respectively.

IV. Final Actions

    EPA is making two determinations regarding the Philadelphia Area. 
First, EPA is making a clean data

[[Page 28784]]

determination, finding that the Philadelphia Area has attained the 1997 
annual PM2.5 NAAQS. This clean data determination is based 
upon quality assured, and certified ambient air monitoring data that 
show the area has monitored attainment of the 1997 annual 
PM2.5 NAAQS for the 2007-2009 and 2008-2010 monitoring 
periods. This clean data determination suspends the requirements for 
the Philadelphia Area to submit an attainment demonstration and 
associated RACM/RACT, RFP plan, contingency measures, and any other 
planning requirements related to attainment of the 1997 annual 
PM2.5 NAAQS, as provided in 40 CFR 51.1004(c), so long as 
the area continues to attain the 1997 annual PM2.5 NAAQS. 
Second, pursuant to section 179(c) of the CAA, EPA is making a 
determination that the Philadelphia Area has attained the 1997 annual 
PM2.5 NAAQS by its attainment date, April 5, 2010. This 
determination is based upon quality assured, and certified ambient air 
monitoring data for the 2007-2009 monitoring period.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et 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 July 16, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This determination that the Philadelphia Area has attained the 
1997 annual PM2.5 NAAQS may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: March 28, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
    Dated: April 24, 2012.
Judith A. Enck,
Regional Administrator, Region II.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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 the existing paragraph is designated as paragraph 
(a), and paragraph (b) is added to read as follows:


Sec.  52.425  Determinations of attainment.

* * * * *
    (b) Based upon EPA's review of the air quality data for the 3-year 
period 2007 to 2009, EPA determined that the Philadelphia-Wilmington, 
PA-NJ-DE fine particle (PM2.5) nonattainment area attained 
the 1997 annual PM2.5 National Ambient Air Quality Standard 
(NAAQS) by the applicable attainment date of April 5, 2010. Therefore, 
EPA has met the requirement pursuant to CAA section 179(c) 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, PA-NJ-DE PM2.5 nonattainment area 
is not subject to the consequences of failing to attain pursuant to 
section 179(d).

0
3. Section 52.427 is added to read as follows:


Sec.  52.427  Control strategy: Particulate matter.

    Determination of attainment. EPA has determined, as of May 16, 
2012, that based on 2007 to 2009 and 2008 to 2010 ambient air quality 
data, the Philadelphia-Wilmington, PA-NJ-DE nonattainment area has 
attained the 1997 annual PM2.5 NAAQS. This determination, in 
accordance with 40

[[Page 28785]]

CFR 51.1004(c), suspends the requirements for this area to submit an 
attainment demonstration, associated reasonably available control 
measures, a reasonable further progress plan, contingency measures, and 
other planning SIPs related to attainment of the standard for as long 
as this area continues to meet the 1997 annual PM2.5 NAAQS.

Subpart FF--New Jersey

0
4. In Sec.  52.1576 the existing paragraph is designated as paragraph 
(a), and paragraph (b) is added to read as follows:


Sec.  52.1576  Determinations of attainment.

* * * * *
    (b) Based upon EPA's review of the air quality data for the 3-year 
period 2007 to 2009, EPA determined that the Philadelphia-Wilmington, 
PA-NJ-DE fine particle (PM2.5) nonattainment area attained 
the 1997 annual PM2.5 National Ambient Air Quality Standard 
(NAAQS) by the applicable attainment date of April 5, 2010. Therefore, 
EPA has met the requirement pursuant to CAA section 179(c) 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, PA-NJ-DE PM2.5 nonattainment area 
is not subject to the consequences of failing to attain pursuant to 
section 179(d).

0
5. Section 52.1602 is amended by adding new paragraph (d) to read as 
follows:


Sec.  52.1602  Control strategy and regulations: PM2.5.

* * * * *
    (d) Determination of Attainment. EPA has determined, as of May 16, 
2012, that the Philadelphia-Wilmington, PA-NJ-DE fine particle 
(PM2.5) nonattainment area has attained the 1997 
PM2.5 National Ambient Air Quality Standard. This 
determination, in accordance with 40 CFR 51.1004(c), suspends the 
requirements for this area to submit an attainment demonstration, 
associated reasonably available control measures, a reasonable further 
progress plan, contingency measures, and other planning SIPs related to 
attainment of the standard for as long as the area continues to attain 
the 1997 PM2.5 NAAQS.

Subpart NN--Pennsylvania

0
6. Section 52.2056 is amended by adding paragraph (g) to read as 
follows:


Sec.  52.2056  Determinations of attainment.

* * * * *
    (g) Based upon EPA's review of the air quality data for the 3-year 
period 2007 to 2009, EPA determined that the Philadelphia-Wilmington, 
PA-NJ-DE fine particle (PM2.5) nonattainment area attained 
the 1997 annual PM2.5 National Ambient Air Quality Standard 
(NAAQS) by the applicable attainment date of April 5, 2010. Therefore, 
EPA has met the requirement pursuant to CAA section 179(c) 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, PA-NJ-DE PM2.5 nonattainment area 
is not subject to the consequences of failing to attain pursuant to 
section 179(d).

0
7. Section 52.2059 is amended by adding paragraph (f) to read as 
follows:


Sec.  52.2059  Control strategy: Particulate matter.

* * * * *
    (f) Determination of Attainment. EPA has determined, as of May 16, 
2012, that based on 2007 to 2009 and 2008 to 2010 ambient air quality 
data, the Philadelphia-Wilmington, PA-NJ-DE nonattainment area has 
attained the 1997 annual PM2.5 NAAQS. This determination, in 
accordance with 40 CFR 51.1004(c), suspends the requirements for this 
area to submit an attainment demonstration, associated reasonably 
available control measures, a reasonable further progress plan, 
contingency measures, and other planning SIPs related to attainment of 
the standard for as long as this area continues to meet the 1997 annual 
PM2.5 NAAQS.

[FR Doc. 2012-11651 Filed 5-15-12; 8:45 am]
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