
[Federal Register Volume 80, Number 104 (Monday, June 1, 2015)]
[Rules and Regulations]
[Pages 30941-30946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13030]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0884; FRL-9928-42-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Determination of Attainment of the 2008 8-Hour Ozone National 
Ambient Air Quality Standard for the Baltimore, Maryland Moderate 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is making the 
determination that the Baltimore, Maryland Moderate Nonattainment Area 
(Baltimore Area) has attained the 2008 8-hour ozone National Ambient 
Air Quality Standard (NAAQS). This determination is based upon 
complete, quality-assured, and certified ambient air quality monitoring 
data that shows the Baltimore Area has monitored attainment of the 2008 
8-hour ozone NAAQS for the 2012-2014 monitoring period. As a result of 
this determination, the requirement for the Baltimore Area to submit an 
attainment demonstration and associated reasonably available control 
measures (RACM), reasonable further progress plans (RFP), contingency 
measures, and other State Implementation Plan (SIP) revisions related 
to attainment of the standard are suspended for as long as the area 
continues to attain the 2008 8-hour ozone standard.

DATES: This final rule is effective on July 1, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0884. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Irene Shandruk, (215) 814-2166, or by 
email at shandruk.irene@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On March 12, 2008, EPA revised both the primary and secondary NAAQS 
for ozone to a level of 0.075 parts per million (ppm) (annual fourth-
highest daily maximum 8-hour average concentration, averaged over three 
years) to provide increased protection of public health and the 
environment. 73 FR 16436 (March 27, 2008).\1\ The 2008 ozone NAAQS 
retains the same general form and averaging time as the 0.08 ppm NAAQS 
set in 1997, but is set at a more protective level. On May 21, 2012 (77 
FR 30088), effective July 20, 2012, EPA designated as nonattainment any 
area that was violating the 2008 8-hour ozone NAAQS based on the three 
most recent years (2008-2010) of air monitoring data. The Baltimore 
Area (specifically, Anne Arundel County, Baltimore City, Baltimore 
County, Carroll County, Harford County, and Howard County) was 
designated as a moderate ozone nonattainment area. See 40 CFR 81.321. 
Moderate areas are required to attain the 2008 8-hour ozone NAAQS by no 
later than six years after the effective date of designations, or July 
20, 2018. See 40 CFR 51.903. Air quality monitoring data from the 2012-
2014 monitoring period indicate that the Baltimore Area is now 
attaining the 2008 8-hour ozone NAAQS. On March 18, 2015 (80 FR 14041), 
EPA published a notice of proposed rulemaking (NPR), which proposed to 
determine that the Baltimore Area has attained the 2008 8-hour ozone 
NAAQS. Public comments were received on the NPR. Summaries of the 
comments as well as EPA's responses are in section III of this 
rulemaking notice.
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    \1\ For a detailed explanation of the calculation of the 3-year 
8-hour average, see 40 CFR part 50, Appendix I.
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    Under the provisions of 40 CFR 51.1118,\2\ also known as EPA's 
Clean Data Policy, a determination by EPA that an area is attaining the 
relevant standard (through a rulemaking that includes public notice and 
comment) suspends the area's obligations to submit an attainment 
demonstration, RACM, RFP, contingency measures and other planning 
requirements related to attainment of the 2008 8-hour ozone NAAQS for 
as long as the area continues to attain the standard. This suspension 
remains in effect until such time, if ever, that EPA (i) redesignates 
the area to attainment at which time those requirements no longer 
apply, or (ii) subsequently determines that the area has violated the 
2008 8-hour ozone NAAQS. Although these requirements are suspended, EPA 
remains obligated under section 110(k)(2) to act upon these elements at 
any time if submitted to EPA for review and approval. On April 22, 
2015, the Maryland Department of the Environment (MDE) sent 
correspondence to EPA indicating its intent to submit an attainment SIP 
for the 2008 8-hour ozone NAAQS.\3\ This determination of attainment is 
not equivalent to a redesignation under section 107(d)(3) of the CAA. 
The designation status of the Baltimore Area will remain nonattainment 
for the 2008 8-hour ozone NAAQS until such time as EPA determines that 
the Area meets the Clean Air Act (CAA) requirements for redesignation 
to attainment, including an approved maintenance plan. Additionally, 
the determination of attainment is separate from, and does not 
influence or otherwise affect, any future designation determination or 
requirements for the Baltimore Area based on any new or revised ozone 
NAAQS, and it remains in effect regardless of whether EPA designates 
this Area as a nonattainment area for purposes of any new or revised 
ozone NAAQS. Finally, this determination does not relieve other CAA 
requirements that are not related to attainment planning and 
achievement of the NAAQS, such as an emissions inventory as required by 
CAA section 172(c)(3) or a nonattainment area permitting program 
pursuant to CAA sections 172(c)(5) and 173.
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    \2\ EPA issued its proposal to determine that the Baltimore Area 
was attaining the 2008 ozone NAAQS pursuant to 40 CFR 51.918, EPA's 
Clean Data Policy under the 1997 8-hour ozone implementation rule. 
On April 6, 2015, EPA's plan implementing the 2008 ozone NAAQS 
became effective, thereby replacing 40 CFR 51.918 with 40 CFR 
51.1118, a functionally identical provision for purposes of this 
action. See 40 CFR 51.919.
    \3\ The April 22, 2015 letter from MDE is available in the 
docket for this rulemaking under docket number EPA-R03-OAR-2014-
0884.
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II. EPA's Evaluation

    EPA has reviewed the complete, quality-assured and certified ozone 
ambient air monitoring data for the monitoring period for 2012-2014 for 
the Baltimore Area. The design values for each monitor for the years 
2012-2014 are less than or equal to 0.075 ppm which is the 2008 ozone 
NAAQS level, and all monitors meet the data completeness requirements 
(see Table

[[Page 30942]]

1).\4\ Based on this 2012-2014 data from EPA's Air Quality System (AQS) 
database and consistent with the requirements contained in 40 CFR part 
50, EPA has concluded that this Area attained the 2008 8-hour ozone 
NAAQS.
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    \4\ Under EPA regulations at 40 CFR part 50, the 2008 8-hour 
ozone NAAQS is attained when the 3-year average of the annual 
fourth-highest daily maximum 8-hour average ozone concentrations at 
an ozone monitor is less than or equal to 0.075 ppm. See 40 CFR part 
50, Appendix P. This 3-year average is referred to as the design 
value. When the design value is less than or equal to 0.075 ppm at 
each monitor within the area, then the area is attaining the NAAQS. 
The data completeness requirement is met when the average percent of 
days with valid ambient monitoring data is greater than or equal to 
90 percent (%), and no single year has less than 75% data 
completeness as determined in Appendix P of 40 CFR part 50. The data 
must be collected and quality-assured in accordance with 40 CFR part 
58, and recorded in EPA's Air Quality System.

    Table 1--2012-2014 Baltimore Area 2008 8-Hour Ozone Design Values
------------------------------------------------------------------------
                                              Average        2012-2014
               Monitor ID                  percent data    Design value
                                           completeness        (ppm)
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24-003-0014.............................              97           0.074
24-005-1007.............................              95           0.072
24-005-3001.............................              99           0.072
24-013-0001.............................              99           0.069
24-025-1001.............................              98           0.075
24-025-9001.............................              96           0.073
24-510-0054.............................              90           0.064
------------------------------------------------------------------------

    The data in Table 1 are available in EPA's AQS database. The AQS 
report with this data is available in the docket for this rulemaking 
under docket number EPA-R03-OAR-2014-0884 and available online at 
www.regulations.gov, docket number EPA-R03-OAR-2014-0884. Other 
specific requirements of the determination and the rationale for EPA's 
proposed action were explained in the NPR and will not be restated 
here.

III. Summary of Public Comments and EPA Responses

    EPA received the following adverse comments on the proposed 
determination of attainment for the Baltimore Area for the 2008 8-hour 
ozone NAAQS. A summary of the adverse comments and our responses 
follow.
    Comment 1: A commenter stated that EPA's proposed determination of 
attainment for the 2008 8-hour ozone standard for the Baltimore Area 
thwarts the CAA's mandate of expeditious attainment of the NAAQS 
because the monitored data are the result of unusual weather patterns 
resulting in low ozone concentrations in Baltimore's air quality, which 
the commenter asserts is likely to revert back to monitored 
nonattainment in the near future. The commenter further states that 
this is of particular concern in the Baltimore Area given that asthma 
is an endemic problem and an environmental justice issue in Maryland. 
According to the commenter, issuance of a determination of attainment 
for the Baltimore Area for the 8-hour ozone NAAQS would defer 
additional needed air quality planning requirements, delay permanent 
attainment, and jeopardize public health. The commenter also asserts 
Maryland cannot rely on voluntary control measures which are not 
permanent and enforceable. Therefore, the commenter stated EPA's 
issuance of the determination of attainment would be arbitrary, 
capricious and counterproductive to the mandate of the CAA.
    Response 1: EPA disagrees with the commenter that EPA should not 
finalize the determination of attainment because, in accordance with 
EPA regulations and longstanding policy for such determinations, and in 
accordance with the intent of the CAA, the area is factually attaining 
the NAAQS. As the commenter acknowledges, unlike the CAA's 
redesignation requirement that an area's attainment air quality is due 
to permanent and enforceable measures in CAA section 
7407(d)(3)(E)(iii), EPA's Clean Data Policy does not require an 
analogous demonstration. See 40 CFR 51.1118. It is for this reason that 
EPA's determination of attainment merely suspends the requirement to 
submit attainment planning SIPs for only so long as the area continues 
to attain the standard. If the area falls back into nonattainment, 
those attainment planning SIPs become immediately due upon a 
determination by EPA that the area is no longer attaining the NAAQS. 
Moreover, Maryland may still submit SIPs in anticipation of this event, 
and EPA will be required to act on those SIPs in accordance with CAA 
section 7410(k)(2) and (3). The Clean Data Policy embodies EPA's 
longstanding interpretation that certain planning requirements in the 
CAA no longer have meaning for areas that are attaining the standard 
because the purpose of these provisions is to help a nonattainment area 
reach attainment, a goal which will already have been achieved.
    Following enactment of the CAA Amendments of 1990, EPA promulgated 
its interpretation of the requirements for implementing the NAAQS in 
the general preamble for the implementation of Title I of the CAA 
Amendments of 1990 (General Preamble). See 57 FR 13498, 13564 (April 
16, 1992). In 1995, based on the interpretation of CAA sections 171, 
172, and 182 in the General Preamble, EPA set forth what has become 
known as its ``Clean Data Policy'' for the 1-hour ozone NAAQS. See 
Reasonable Further Progress, Attainment Demonstration, and Related 
Requirements for Ozone Nonattainment Areas Meeting the Ozone National 
Ambient Air Quality Standard, EPA memorandum from John S. Seitz, 
Director, Office of Air Quality Planning Standards, May 10, 1995 (Seitz 
Memorandum). The Seitz Memorandum provided that requirements to submit 
SIP revisions addressing RFP, an attainment demonstration, and other 
related requirements such as contingency measures and other specific 
ozone-related requirements in section 182 would be suspended for as 
long as the nonattainment area continued to monitor attainment of the 
NAAQS. EPA incorporated its ``Clean Data Policy'' interpretation in 
both its 8-Hour Ozone Implementation Rule in 40 CFR 51.918, its Final 
Clean Air Fine Particle Implementation Rule (1997 PM2.5 
Implementation Rule) in 40 CFR 51.1004(c), the SIP requirements rule 
for the 2008 ozone NAAQS published on March 6, 2015 (80 FR 12264), and 
the proposed PM implementation rule published on March 23, 2015 (80 FR 
15340). See 72 FR 20585, 20665 (April

[[Page 30943]]

25, 2007).\5\ Over the past two decades, in regulations, guidance 
memoranda, and numerous individual rulemakings, EPA has consistently 
articulated its Clean Data Policy interpretation as applying to the 
attainment-related SIP planning provisions of subparts 1, 2 and 4 of 
Part D of Title I of the CAA, and the spectrum of ambient air quality 
standards, including the 1-hour and 1997 ozone, coarse particulate 
matter (PM10), fine particulate matter (PM2.5), 
and lead (Pb) NAAQS. See e.g. 79 FR 77911 (December 29, 2014) 
(determination of attainment of 2008 Pb NAAQS); 79 FR 25014 (May 2, 
2014) (determination of attainment of 2006 PM2.5 NAAQS); 79 
FR 21139 (April 15, 2014) (determination of attainment of 2008 ozone 
NAAQS); 78 FR 20244 (April 4, 2013) (determination of attainment of 
1997 ozone NAAQS); and 77 FR 36163 (June 18, 2012) (determination of 
attainment of 1-hour ozone NAAQS). The D.C. Circuit explicitly upheld 
EPA's Clean Data Policy interpretation as embodied in the1997 8-Hour 
Ozone Implementation Rule, 40 CFR 51.918.\6\ NRDC v. EPA, 571 F. 3d 
1245, 1258-61 (D.C. Cir. 2009). Other U.S. Circuit Courts of Appeals 
that have considered and reviewed EPA's Clean Data Policy 
interpretation have similarly upheld it and the rulemakings applying 
EPA's interpretation. Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 
1996); Our Children's Earth Foundation v. EPA, N. 04-73032 (9th Cir. 
June 28, 2005) (memorandum opinion); and Latino Issues Forum v. EPA, 
Nos. 06-75831 and 08-71238 (9th Cir. March 2, 2009) (memorandum 
opinion).
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    \5\ While the United States Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit) in a January 4, 2013 decision 
remanded the 1997 PM2.5 Implementation Rule to EPA, the 
D.C. Circuit did not address the merits of that regulation regarding 
our Clean Data Policy in 40 CFR 51.1004(c), nor cast any doubt on 
EPA's existing interpretation of the statutory provisions for the 
Clean Data Policy. See Natural Resources Defense Council v. EPA, 706 
F.3d 428 (D.C. Cir. 2013).
    \6\ ``EPA's Final Rule to implement the 8-Hour Ozone National 
Ambient Air Quality Standard-Phase 2 (Phase 2 Final Rule).'' See 70 
FR 71612, 71645-46 (November 29, 2005).
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    Because EPA finds the Baltimore Area's monitoring data supports a 
determination that the Baltimore Area has attained the 2008 ozone NAAQS 
as explained above and in the NPR, EPA disagrees with the commenter 
that EPA should not issue at this time a determination of attainment 
which suspends SIP planning requirements for the Baltimore Area 
pursuant to our Clean Data Policy. EPA acts to protect the public 
health in accordance with the CAA and its mandates and the Agency is 
concerned with increased asthma incidences as well as with ensuring 
environmental justice for communities. EPA's determination of 
attainment for the Baltimore Area is in accordance with our regulations 
and longstanding policy and is based on monitored ozone data 
demonstrating attainment with the 2008 8-hour ozone NAAQS, which EPA 
set at a level to protect the public health. Thus, EPA's action is in 
accordance with the CAA, its implementing regulations, and policy.
    Second, to the extent that the commenter is suggesting that EPA may 
not issue a determination of attainment where the factors that 
contributed to attainment are not permanent, EPA notes that such a 
requirement is a prerequisite to a redesignation of a nonattainment 
area under CAA section 107(d)(3)(E)(iii), but not for a determination 
of attainment. A redesignation changes the legal status of an area from 
nonattainment of the NAAQS to attainment of the NAAQS, and is not 
pertinent to determinations of attainment that simply suspend 
attainment planning requirements in Part D of Title I of the CAA. Thus, 
EPA disagrees with the commenter that our determination of attainment, 
which is based on data from ozone monitors in the Baltimore Area 
showing attainment with the 2008 ozone NAAQS in accordance with 40 CFR 
part 50, Appendix P, is arbitrary or capricious, or contrary to the 
CAA.
    Finally, under the provisions of EPA's ozone implementation rules 
(40 CFR 51.918 and 51.919), if EPA issues a determination that an area 
is attaining the relevant standard (through a rulemaking that includes 
public notice and comment), it will suspend the area's obligations to 
submit an attainment demonstration, RACM, RFP, contingency measures and 
other planning requirements related to attainment of the 2008 8-hour 
ozone NAAQS for as long as the area continues to attain the standard. 
This suspension remains in effect until such time, if ever, that EPA 
(i) redesignates the area to attainment at which time those 
requirements no longer apply, or (ii) subsequently determines that the 
area has violated the 2008 8-hour ozone NAAQS. Although these 
requirements are suspended, EPA is required to act upon these elements 
if submitted to EPA for review and approval. In fact, Maryland has 
stated its intent to submit an attainment plan for the 2008 8-hour 
ozone NAAQS, which will address SIP attainment planning requirements in 
sections 172 and 182 of the CAA, including control measures, RACM, RFP 
and contingency measures which will assist the Baltimore Area with 
maintenance of the NAAQS. See April 22, 2015 letter from MDE to EPA 
regarding plans for 2008 ozone NAAQS attainment SIP which is included 
in the docket for this rulemaking action. Thus, EPA has considered the 
commenter's concern that this rulemaking will delay attainment planning 
which could assist with maintenance with the NAAQS, and has determined 
that MDE is addressing these concerns. Furthermore, EPA's NPR which 
proposed to determine the Baltimore Area had attained the 2008 8-hour 
ozone NAAQS has not delayed or interfered with MDE's plans for 
additional control measures to address ozone formation and attainment 
and maintenance of ozone NAAQS. For example, MDE recently proposed 
action on new nitrogen oxide (NOX) regulations for electric 
generating units (EGUs), which may assist the Area with maintenance of 
the 2008 8-hour ozone NAAQS.\7\ See COMAR 26.11.38 (proposed April 17, 
2015).\8\ In addition, EPA expects further NOX reductions 
will occur in Maryland with the projected closure of coal-fired power 
generating units at NRG Energy's Dickerson and Chalk Point power plants 
which are projected to deactivate by 2018.\9\ In addition, many other 
coal-fired EGUs in Maryland and in states neighboring Maryland have 
already deactivated or will soon deactivate in 2015 and 2016, including 
R. Paul Smith, Potomac River, Chesapeake, Clinch River, Glen Lynn, 
Armstrong, Elrama, Hatfields Ferry, Mitchell, Willow Island, Albright, 
Kammer, Kanawha River, Phillip Sporn, Rivesville, Walter C. Beckjord, 
Muskingum River, Eastlake, Ashtabula, and Big Sandy, which will likely 
result in further NOX and ozone

[[Page 30944]]

reductions and thereby additionally address the commenter's concerns 
with continued attainment and maintenance of the ozone NAAQS in the 
Baltimore Area.\10\
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    \7\ NOX is a precursor pollutant which reacts in the 
atmosphere to form ozone.
    \8\ According to MDE's Web site, MDE has petitioned the 
Administrative, Executive, and Legislative Review (AELR) Committee 
of the Maryland General Assembly requesting emergency status for 
COMAR 26.11.38. If the AELR Committee grants its approval, the 
emergency measure for NOX reductions at EGUs may go into 
effect immediately. To become a permanent regulation, the regulation 
must be promulgated following the State required administrative 
procedures, which includes a 30-day public comment period. See 
http://www.mde.state.md.us/programs/regulations/air/Pages/Emergency.aspx. For additional information including the proposed 
regulations, see http://www.mde.state.md.us/programs/regulations/air/Documents/COMAR_26.11.38.pdf and http://www.baltimoresun.com/news/maryland/bs-md-air-pollution-rule-20150417-story.html.
    \9\ For a listing of EGUs which deactivated already or are 
planning to deactivate in the states which are part of PJM 
Interconnection, L.L.C., a regional transmission organization which 
coordinates the movement of wholesale electricity within states 
including Maryland, see http://www.pjm.com/planning/generation-deactivation/gd-summaries.aspx.
    \10\ See http://www.pjm.com/planning/generation-deactivation/gd-summaries.aspx.
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    Comment 2: The commenter asserts that EPA should not issue a 
determination of attainment for the Baltimore Area because the Area 
experienced atypical weather conditions in 2013 and 2014, leading to 
lower monitored ozone levels in the Area, and asserts the Area is 
likely to revert back to nonattainment in the near future. The 
commenter states that unusually cool summers, increased precipitation, 
and shifting ozone transport patterns which occurred in 2013 and 2014 
contributed to unusually low ozone levels in the Baltimore Area, but 
that the National Oceanic Atmospheric Administration (NOAA) predicts 
that such aberrant weather trends will not continue through summer 
2015. The commenter asserts the Baltimore Area could revert to 
nonattainment if summers are warmer with less precipitation than 2013 
and 2014. The commenter cites to statements from Maryland and the Ozone 
Transport Commission regarding the shifting weather and transport 
patterns in 2013 and 2014.\11\ Furthermore, the commenter asserts that 
2013 and 2014 atypical weather conditions led to lower energy demand 
due to less use of air conditioners by consumers in summer, and thereby 
led to lower coal plant operations, and presumably lower NOX 
emissions helping to keep ozone levels low. The commenter notes the 
coal-fired EGUs in Maryland have generally operated less in recent 
years but tend to continue to operate on warmer summer days, which the 
commenter says are the most ``sensitive'' from the ozone and public 
health perspective. Thus, the commenter states EPA should decline to 
issue the clean data determination for the Baltimore Area because of 
the aberrant weather in 2013 and 2014 and because the Area is likely to 
revert back to nonattainment in the near future.
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    \11\ By reference to ``transport,'' the commenter refers to the 
transport of air pollution and pollutants from upwind states to 
downwind states in the atmosphere.
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    Response 2: EPA disagrees with the commenter that transport of 
NOX or ozone or that weather patterns including unusual 
patterns of transport of pollution and cooler, wetter weather data than 
historical averages should impact EPA's determination of attainment for 
the Baltimore Area with respect to the 2008 8-hour ozone NAAQS. EPA's 
determinations of attainment with a NAAQS are based entirely on 
monitoring data and on our evaluation of that data's compliance with 40 
CFR part 50, Appendix P. Therefore, weather conditions, transport 
patterns, energy demand, and EGU megawatt generation that the commenter 
alleges may impact NOX and ozone pollution levels are 
irrelevant in determining whether an area is attaining a NAAQS. Under 
EPA regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is 
attained when the 3-year average of the annual fourth-highest daily 
maximum 8-hour average ozone concentrations at an ozone monitor is less 
than or equal to 0.075 ppm. See 40 CFR part 50, Appendix P. This 3-year 
average is the design value. When the design value is less than or 
equal to 0.075 ppm at each monitor within the area, then the area is 
attaining the NAAQS. EPA's analysis of monitoring data in the Baltimore 
Area (included in Section II of this rulemaking action) supports the 
determination that the Baltimore Area has attained the 2008 8-hour 
ozone NAAQS. In addition, the data completeness requirement for 
evaluating monitoring data for NAAQS attainment is met when the average 
percent of days with valid ambient monitoring data is greater than or 
equal to 90 percent (%), and no single year has less than 75% data 
completeness as defined in Appendix P of 40 CFR part 50. Monitor data 
must also be collected and quality-assured in accordance with 40 CFR 
part 58 and recorded in the EPA's AQS. EPA's analysis in Section II of 
this rulemaking action of the monitor data in the Baltimore Area shows 
the Baltimore Area monitors meet the completeness criterion which also 
supports our determination that the Baltimore Area has attained the 
2008 8-hour ozone NAAQS.
    In sum, EPA reviewed the complete, quality-assured and certified 
ozone ambient air monitoring data for the 2012-2014 monitoring period 
for the Baltimore Area. The design values for each monitor for the 
years 2012-2014 are less than or equal to 0.075 ppm, and all monitors 
meet the data completeness requirements (see Table 1 in Section II of 
this rulemaking action). Thus, EPA disagrees with the commenter that 
EPA should not issue the determination of attainment based on factors 
such as atypical weather, transport, or reduced EGU generation. The 
Baltimore Area has attained the 2008 8-hour ozone NAAQS in accordance 
with 40 CFR part 50, Appendix P requirements and 40 CFR 51.918. Thus, 
EPA's determination is in accordance with CAA requirements and is not 
arbitrary or capricious.\12\ If the Baltimore Area's monitors show 
design values exceeding the 2008 8-hour ozone NAAQS in the future, EPA 
will take appropriate action to remove the suspension of attainment 
plan requirements as discussed in this rulemaking and in the NPR. 
Furthermore, as noted in response to Comment 1, notwithstanding the 
lawful suspension of these requirements in accordance with 40 CFR 
51.1118, the state has indicated that it plans to continue working on 
submissions to address the suspended attainment planning requirements, 
which EPA will be required to act upon in accordance with CAA section 
110(k).
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    \12\ EPA also discussed the irrelevance of atypical weather in 
EPA's approval of the attainment demonstration for the Washington 
DC-MD-VA, moderate ozone nonattainment area for the 1997 ozone 
NAAQS. 80 FR 19206 (April 10, 2015). In response to comments that 
the weather in 2012 was cooler and wetter than average which led to 
ozone levels lower than seen in prior years, EPA agreed that weather 
plays an important role in ozone formation but stated that these 
considerations do not require EPA to disapprove the attainment 
demonstration where modeling and actual design values from ambient 
air quality monitors demonstrated attainment of the NAAQS. Id. at 
19213-214 (stating EPA's approval of attainment demonstration was in 
accordance with CAA statutory requirements).
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    Comment 3: The commenter states that Baltimore's ozone monitors do 
not accurately capture all maximum ozone exposures. According to the 
commenter, several ozone monitors in the Baltimore Area (including 
specifically the Davidsonville, Padonia, and Aldino monitors) have shut 
off for several days during the ozone season in 2011, 2012 and 2013, 
and on several occasions, shut off on very hot days as ozone 
concentrations increased. The commenter asserts these monitors may have 
missed exceedances that would have kept the monitor in nonattainment 
for 2012-2014 with the 2008 8-hour ozone NAAQS. The commenter states 
the untimely shut-offs of ozone monitors call into question the 
``cleanliness'' of the Area's data as monitors were ``down and failing 
to record ambient ozone levels at critical points during ozone season 
and summer heat waves.'' The commenter states EPA should decline to 
grant the clean data determination at this time due to ``illusory air 
quality improvements.'' Because the commenter questions the monitoring 
data due to certain shut off episodes, the commenter additionally 
claims EPA's determination of attainment for the Baltimore Area is 
arbitrary, capricious and contrary to law.
    Response 3: EPA disagrees with the commenter that EPA should not 
finalize

[[Page 30945]]

this determination of attainment for the Baltimore Area for the 2008 8-
hour ozone NAAQS due to concerns raised by the commenter with respect 
to certain ozone monitors in the Area, and disagrees that EPA's 
determination is arbitrary, capricious or contrary to law. As discussed 
previously, EPA issues determinations of attainment for the NAAQS based 
solely on monitoring data input into EPA's AQS demonstrating attainment 
with a NAAQS in accordance with requirements for attainment in 40 CFR 
part 50, Appendix P, regardless of weather or transport conditions or 
patterns. For EPA to issue a determination of attainment, one important 
criterion is that the monitoring data must meet the completeness 
requirements set forth in Appendix P of 40 CFR part 50 (amongst other 
requirements.) The data completeness requirement is met when the 
average percent of days with valid ambient monitoring data is greater 
than or equal to 90%, and no single year has less than 75% data 
completeness. EPA has determined that the 2012-2014 ozone monitoring 
data in the Baltimore Area meet these requirements because the average 
percent of days with valid ambient monitoring data is greater than or 
equal to 90% and because no single year has less than 75% data 
completeness. Therefore, EPA has sufficient data in accordance with 
Appendix P of 40 CFR part 50 for issuance of the determination of 
attainment for the Baltimore Area with the 2008 8-hour ozone NAAQS. EPA 
disagrees with the commenter that the monitors ``shutting off'' create 
illusory air quality improvements as the monitors satisfy EPA's data 
completeness requirements.
    In addition, EPA disagrees with the commenter's characterization 
that the monitors were ``shutting off,'' and EPA finds it unreasonable 
to infer ozone exceedances may have occurred during any periods when 
monitors may not have collected valid data. Ozone monitors are 
sophisticated analytical instruments. While they mostly operate quite 
reliably, there may be occasional incidences where monitors malfunction 
or produce erroneous or compromised data despite best efforts at 
maintenance and good operating practices. EPA believes it is 
unreasonable to expect any ozone monitor to operate continuously 
twenty-four hours a day for seven days a week over the seven month 
ozone season without experiencing any operational issues. EPA believes 
routine issues may be expected to occur affecting monitor operation and 
performance including issues such as ultraviolet lamps and vacuum pumps 
needing repair, particulate filters becoming clogged, and water vapor 
condensing in the sample manifold and being drawn into the monitor.
    In addition, monitors must be operated in environmentally 
controlled buildings or instrument shelters. If the air conditioning 
fails and the monitors overheat, unstable readings may occur. If the 
temperature gets too cold in a shelter on a hot and humid day, 
condensation can occur and affect the ozone readings. Condensation may 
also impact a monitor because ozone exceedance days are often observed 
on warm and humid days. Further, monitoring stations frequently house 
additional monitoring equipment creating a high electrical demand. 
Thus, monitors are susceptible to electrical power disturbances from 
power failures due to stress on the electrical grid or from power 
failures due to thunderstorms which also frequently occur during hot 
and humid ozone exceedance days.
    To combat such issues, a strict schedule of preventative 
maintenance, operational checks, daily zero and span challenges, 
periodic audits and a minimum of bi-weekly precision checks are in 
place by state agencies operating monitors such as MDE to insure that 
any monitor problems are addressed in a timely manner and that the 
highest possible quality data is being produced. Since MDE produces 
daily ozone forecasts, MDE's monitoring site operators are alerted 
ahead of time when they can expect ozone exceedance days and extra 
efforts are taken to insure that the monitors are operating properly as 
practically possible.
    Because of these concerns with monitor operations, Appendix P of 40 
CFR part 50 accounts for potential missing data with the completeness 
criterion discussed previously. All of the Baltimore Area ozone 
monitors meet these requirements for the period in question. EPA 
reviewed data from the Davidsonville, Padonia, and Aldino monitors 
noted by the commenter as having missing data from 2011-2013 including 
on hotter days in the ozone season. In general, EPA believes that the 
characterization of these monitors as being ``shut off'' is not 
accurate. Instead, EPA found the data from these monitors was 
invalidated for very brief periods or was briefly not collected due to 
operational concerns such as malfunctioning air conditioning units, 
power failures, and condensation concerns in sample lines. EPA's 
analysis of the Davidsonville, Padonia, and Aldino monitors for the 
time periods noted by the commenter is included in a Supplemental 
Technical Support Document (Supplemental TSD) which is available in the 
docket for this rulemaking action under Docket ID Number EPA-R03-OAR-
2014-0884. EPA also believes it is unlikely that the monitors missed 
high ozone exceedances as other monitors were operating in or near the 
Baltimore Area during some of these limited occasions and were not 
reporting exceedances. EPA finds it is unreasonable for the commenter 
to infer ozone exceedances would have occurred during the very limited 
periods of invalidated data or uncollected data due to power outages 
because ozone concentrations are not solely dependent on temperature, 
because ozone concentrations do not behave linearly from day to day at 
each monitor, and because such inference ignores the meteorology and 
the behavior of the other ozone monitors in Maryland, which did not 
report exceedances on the same days and times when these three monitors 
had limited periods of invalidated data.\13\ For a detailed discussion 
of monitor performance and an explanation for the brief periods of 
invalidated data at each of the noted monitors, see the Supplemental 
TSD.
---------------------------------------------------------------------------

    \13\ For example, one period of unavailable monitor data noted 
by the commenter around June 29, 2012 at the Davidsonville monitor 
occurred due to a power failure brought on by a historic storm 
(known as a derecho) which caused extensive power outages and 
property damage in Maryland. Despite the summer heat, none of the 
other Baltimore area monitors registered exceedances during that 
period of time as temperature is not always directly linked to ozone 
exceedances. EPA finds it reasonable during this derecho that strong 
winds likely swept ozone away from the Area based on monitoring data 
from nearby monitors.
---------------------------------------------------------------------------

    In conclusion, because EPA's determination of attainment for the 
Baltimore Area is in accordance with established CAA requirements and 
is supported by EPA analysis in the NPR and in Section II of this 
rulemaking action regarding complete, quality-assured, and certified 
ambient air monitoring data that shows the Baltimore Area has monitored 
attainment of the 2008 8-hour ozone NAAQS for the 2012-2014 monitoring 
period, EPA's determination is neither arbitrary, capricious, nor 
contrary to the CAA.

IV. Final Action

    EPA has determined that the Baltimore Area has attained the 2008 8-
hour ozone NAAQS. This determination is based upon complete, quality-
assured, and certified ambient air monitoring data that show the 
Baltimore Area has monitored attainment of the 2008 8-hour ozone NAAQS 
for the

[[Page 30946]]

2012-2014 monitoring period. This determination suspends the 
requirement for Maryland to submit an attainment demonstration for the 
Baltimore Area, RACM, a RFP plan, contingency measures, and other 
planning requirements related to attainment of the 2008 8-hour ozone 
NAAQS for so long as the Baltimore Area continues to attain the 2008 8-
hour ozone NAAQS. Although these requirements are suspended, EPA is 
still obligated to act upon revisions addressing these requirements if 
submitted to EPA for review and approval. Finalizing this determination 
does not constitute a redesignation of the Baltimore Area to attainment 
for the 2008 8-hour ozone NAAQS under CAA section 107(d)(3). Therefore, 
the designation status of the Baltimore Area will remain nonattainment 
for the 2008 8-hour ozone NAAQS until such time as EPA takes final 
rulemaking action to determine that the Baltimore Area meets the CAA 
requirements for redesignation to attainment. Finally, this 
determination does not relieve other CAA requirements that are not 
related to attainment planning and achievement of the NAAQS such as an 
emissions inventory as required by CAA section 172(c)(3) or a 
nonattainment area permitting program pursuant to CAA sections 
172(c)(5) and 173.

V. Statutory and Executive Order Reviews

A. General Requirements

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

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 31, 2015. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This action determining that the Baltimore Area has attained the 
2008 8-hour ozone NAAQS may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: May 19, 2015.
William C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart V--Maryland

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


Sec.  52.1082  Determinations of attainment.

* * * * *
    (i) EPA has determined, as of June 1, 2015, that based on 2012 to 
2014 ambient air quality data, the Baltimore nonattainment area has 
attained the 2008 8-hour ozone NAAQS. This determination, in accordance 
with 40 CFR 51.1118, suspends the requirement for this area to submit 
an attainment demonstration, associated reasonably available control 
measures, a reasonable further progress plan, contingency measures, and 
other planning SIPs related to attainment of the standard for as long 
as this area continues to meet the 2008 8-hour ozone NAAQS.

[FR Doc. 2015-13030 Filed 5-29-15; 8:45 am]
 BILLING CODE 6560-50-P


