[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Rules and Regulations]
[Pages 32117-32120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10728]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2021-0307; FRL-10965-02-R3]


Determination of Attainment by the Attainment Date for the 2012 
Annual Fine Particulate Matter Standard; Pennsylvania; Allegheny County 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is determining that 
the Allegheny County, Pennsylvania, fine particulate matter 
(PM2.5) nonattainment area (``Allegheny County 
PM2.5 nonattainment area,'' ``the nonattainment area,'' or 
simply ``the area'') attained the 2012 annual PM2.5 national 
ambient air quality standards (NAAQS or ``standard'') by its December 
31, 2021, ``Moderate'' area attainment date. This determination, as 
required under Clean Air Act (CAA) sections 179 and 188, is based upon 
quality-assured, quality-controlled, and certified ambient air 
monitoring data for the 2019-2021 period available in EPA's Air Quality 
System (AQS) monitoring data repository. The area remains nonattainment 
for the 2012 annual PM2.5 NAAQS until the area is 
redesignated to attainment.

DATES: This final rule is effective on June 20, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2021-0307. All documents in the docket are listed on 
the www.regulations.gov website. 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 
www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Brian Rehn, Planning & Implementation 
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection 
Agency, Region III, 1600 John F. Kennedy Boulevard, Philadelphia, 
Pennsylvania 19103. The telephone number is (215) 814-2176. Mr. Rehn 
can also be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Summary of the Proposed Action

    Following promulgation of a new or revised NAAQS, EPA is required 
under CAA section 107(d) to designate areas as attaining or not 
attaining the NAAQS. Those nonattainment areas are also classified by 
degree of nonattainment. Under subpart 4 of part D of title I of the 
CAA, EPA designates areas found to be violating or contributing to 
violation of the PM2.5 NAAQS as nonattainment and classifies 
them initially as Moderate nonattainment. Effective April 15, 2015, EPA 
designated Allegheny County, Pennsylvania, as Moderate nonattainment 
for the 2012 annual PM2.5 NAAQS based on ambient monitoring 
data that showed the area was above the 12.0 micrograms per cubic meter 
([micro]g/m\3\) primary standard for the 2011-2013 monitoring period, 
based on the area's design value.\1\ A design value (DV) is the 3-year 
average NAAQS metric that is compared to the NAAQS level to determine 
when a monitoring site is or is not meeting the NAAQS. The specific 
methodologies for calculating whether the annual PM2.5 NAAQS 
is met at each eligible monitoring site in an area are found in the 
Code of Federal Regulations (CFR), at 40 CFR part 50, appendix N, 
section 4.1.
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    \1\ 80 FR 2206 (January 15, 2015).
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    Sections 179(c)(1) and 188(b)(2) of the CAA require EPA to 
determine whether a PM2.5 nonattainment area attained by the 
applicable attainment date, ``based on the area's air quality as of the 
attainment date.'' Generally, this determination of whether an area's 
air quality meets the PM2.5 NAAQS by the attainment date is 
based upon the most recent three years of complete, certified data 
gathered at eligible monitoring sites in accordance with 40 CFR 58.9. 
Section 188(c)(1) of the CAA requires that states with areas designated 
as Moderate PM2.5 nonattainment areas provide for attainment 
in the area as expeditiously as practicable, but no later than the end

[[Page 32118]]

of the sixth calendar year after designation. For areas initially 
designated under the 2012 annual PM2.5 NAAQS, this 
attainment date was December 31, 2021.\2\
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    \2\ 40 CFR 51.1004(a)(1).
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    On February 8, 2023 (88 FR 8249), EPA published a proposed 
determination that the Allegheny County, Pennsylvania PM2.5 
nonattainment area attained the 2012 annual PM2.5 NAAQS by 
its December 31, 2021, ``Moderate'' area attainment date, for the 
reasons set forth in that proposed rulemaking. EPA's determination is 
based upon quality assured, quality controlled, and certified ambient 
air monitoring data for the 2019-2021 period preceding the December 
2021 attainment date. That data is available in EPA's AQS ambient air 
quality monitoring database. We explained in our proposed determination 
that, if finalized, the action would fulfill EPA's statutory obligation 
to determine whether the Allegheny County PM2.5 
nonattainment area attained the NAAQS by the Moderate attainment date. 
Further explanation of the specific details of and rationale for our 
determination that the nonattainment area attained the 2012 annual 
PM2.5 NAAQS by the statutory attainment date are explained 
in the proposed rule and will not be restated here.
    EPA received one public comment letter in response to the February 
8, 2023, notice of proposed rulemaking (NPRM) that was submitted 
jointly by three environmental advocacy organizations (The Clean Air 
Council, The Environmental Integrity Project, and Citizens for 
Pennsylvania's Future). A summary of the comments received is set forth 
below. The full text of the comments is available in the docket for 
this action.

II. EPA's Response to Comments Received

    Comment: The proposed attainment determination for the Allegheny 
County PM2.5 nonattainment area is a step in the EPA's 
process of evaluating whether to approve a subsequent state request for 
redesignation of the nonattainment area to attainment, per 42 U.S.C. 
7407(d)(3)(E). If EPA finalizes this proposed determination of 
attainment by the attainment date, the commenters' recommend that EPA 
not take action on the Commonwealth's November 29, 2022 request under 
CAA section 107(d)(3)(E) to redesignate the Allegheny County 
nonattainment area to attainment for the 2012 annual PM2.5 
NAAQS until EPA finishes its reconsideration of the PM2.5 
NAAQS set by the 2020 final decision on the primary (i.e., health-
based) and secondary (i.e., welfare-based) PM NAAQS.\3\ EPA published 
its proposed reconsideration of the December 2020 PM2.5 
NAAQS on January 27, 2023. The reconsideration proposed revising the 
primary annual PM2.5 standard by lowering the level from 
12.0 [micro]g/m\3\ to within the range of 9.0 to 10.0 [micro]g/m\3\, 
while taking comment on alternative annual standard levels as low as 
8.0 [micro]g/m\3\ and up to 11.0 [micro]g/m\3\.\4\ The commenters state 
that recent ambient air quality monitoring data obtained since the 
December 31, 2021, attainment date would likely require EPA to 
designate the area as nonattainment under the proposed revised annual 
PM2.5 NAAQS, regardless of the final NAAQS level EPA 
establishes, because all of the proposed NAAQS values in the 
reconsideration are lower than the 2012 PM2.5 annual NAAQS 
of 12.0 [micro]g/m\3\. The commenters contend that taking separate 
action on a redesignation request under the 2012 annual 
PM2.5 NAAQS would be a waste of EPA resources and could 
endanger public health and welfare in the interim period between any 
potential redesignation to attainment under the 2012 annual 
PM2.5 NAAQS and potential, future designation under a newly 
revised PM NAAQS.
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    \3\ The final action is EPA's December 2020 final action on its 
review of the PM NAAQS. This final action retained the primary and 
secondary PM NAAQS without revision, including the PM2.5 
annual standard of 12.0 [micro]g/m\3\. 85 FR 82684 (December 18, 
2020).
    \4\ Proposed rule titled ``Reconsideration of the National 
Ambient Air Quality Standards for Particulate Matter,'' 88 FR 5558 
(January 27, 2023).
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    Response: EPA thanks the commenters for their considered comments. 
However, the comments do not provide a reason for EPA to not make a 
final determination of attainment by the attainment date, for the 
reasons explained below.
    First, EPA's determination whether a nonattainment area has 
attained the NAAQS by the established attainment date is a 
nondiscretionary, statutory duty placed on EPA by CAA section 
179(c)(1), which requires that ``as expeditiously as practicable after 
the applicable attainment date for any nonattainment area, but not 
later than six months after such date, the Administrator shall 
determine, based on the area's air quality as of the attainment date, 
whether the area attained the standard by that date.'' CAA section 
188(b)(2) also places a nondiscretionary duty on EPA to determine, 
within six months following the applicable attainment date for a PM 
nonattainment area, whether the area attained the standard by that 
date. A judicial action has been filed by an environmental advocacy 
organization alleging that EPA has failed to perform this mandatory 
duty by the June 30, 2022 date required by CAA section 188(b)(2).\5\ 
EPA is taking final action on the determination of attainment by the 
attainment date to fulfill a statutory obligation, which is an 
independent statutory requirement that applies regardless of pending 
redesignation requests or any revision to the NAAQS.
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    \5\ Center for Biological Diversity, et al., v. Michael S. 
Regan, Civil Action No. 4:23-cv-00148-JST, (N.D. CA, January 12, 
2023).
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    As such, comments related to Pennsylvania's November 29, 2022 
submission requesting redesignation of the Allegheny County 
PM2.5 nonattainment area to attainment are outside the scope 
of this action. This determination of attainment by the attainment date 
satisfies EPA's obligations under CAA sections 179 and 188 of the CAA 
to determine, ``based on the area's air quality as of the attainment 
date,'' whether the area attained the standard by that date. EPA's 
approval of a state's request to change the legal designation of an 
area from nonattainment to attainment for a specific NAAQS is subject 
to different statutory criteria. See CAA section 107(d)(3)(E).
    Similarly, comments regarding air quality monitoring data and their 
relationship to potential future NAAQS are outside the scope of this 
action. Under CAA sections 179(c)(1) and 188(b)(2), EPA is making its 
determination of attainment by the December 31, 2021, Moderate area 
attainment date based on the area's ambient air quality monitoring data 
as of the attainment date.
    The PM NAAQS reconsideration is the subject of a separate, proposed 
EPA action, that took public comment until March 28, 2023. Information 
with respect to health or welfare impacts of PM or PM precursors at 
levels below the current NAAQS should have been submitted to the docket 
for the PM NAAQS reconsideration.\6\
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    \6\ Reconsideration of the National Ambient Air Quality 
Standards for Particulate Matter, Proposed Rule (88 FR 5558, January 
27, 2023).
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    In conclusion, EPA has a nondiscretionary duty to determine whether 
a Moderate PM2.5 nonattainment area has attained by the 
December 31, 2021, Moderate attainment date. The purpose of this action 
is to ascertain whether the area attained the 2012 annual 
PM2.5 NAAQS by the Moderate area deadline, and if not, to 
``bump up'' the area to Serious.

[[Page 32119]]

This determination of attainment by the attainment date is independent 
of any future EPA action on a state's request for redesignation of the 
area to attainment, or from future revision by EPA of the PM NAAQS.
    Comment: The commenter contends that air quality monitoring data 
gathered subsequent to the December 31, 2021, Moderate area attainment 
date for the Allegheny County nonattainment area shows concerning 
PM2.5 levels (though at monitored levels that do not show a 
violation of the NAAQS). Further, the commenters express concern that 
data from the Federal Equivalent Method (FEM) monitor at the Liberty 
Monitor Site shows significantly higher PM2.5 concentrations 
than data from the Federal Reference Method (FRM) monitor used to 
determine the 2019-21 design value. Using only data from the Liberty 
FEM monitor from the 2019 to 2021 period, the commenter claims that the 
design value calculated using the appendix N methodology would result 
in an annual PM design value of 12.7 [mu]g/m\3\, which is above the 
2012 annual PM2.5 standard of 12.0 [mu]g/m\3\.
    Response: As explained above, section 179(c)(1) of the CAA requires 
that EPA make this determination ``based on the area's air quality as 
of the attainment date.'' The air quality monitoring data as of 
December 31, 2021, show that the area attained the NAAQS by that date. 
Additionally, certified air quality monitoring data in AQS for 2022 
(subsequent to the attainment date of December 31, 2021), shows that 
the area continues to attain the 2012 annual PM2.5 NAAQS.
    Regarding the claim that data from the FEM collocated with the 
Liberty FRM shows consistently higher levels of PM than the FRM in the 
years 2019 through 2021, EPA notes that the methodology for performing 
the PM2.5 design value calculation is set forth at 40 CFR 
part 50 (National Primary and Secondary Air Quality Standards), 
appendix N (Interpretation of National Ambient Air Quality Standards 
for PM2.5), at section 3.0 (Requirements for Data Use and 
Data Reporting for Comparisons with the NAAQS for PM2.5). 
The PM2.5 FRM monitor is designated as the primary monitor 
at the Liberty site, with the FEM monitor and a second FRM monitor 
designated as collocated monitors; therefore, the design value 
calculation is based on the primary FRM data but shall be augmented 
with the collocated FEM and FRM data when the primary FRM data is 
missing.\7\ The purposes of both the Liberty FRMs and the FEM are 
described in section 10.2 of the Allegheny County Health Department's 
Air Quality Monitoring Network Plan for 2021,\8\ and these purposes are 
consistent with the methodology in 40 CFR part 50, appendix N. EPA may 
not deviate from 40 CFR part 50, appendix N, and Allegheny County's 
2021 Air Monitoring Network Plan approved pursuant to 40 CFR 58.10 when 
calculating the design value for this determination of attainment. 
Following the methodology in appendix N results in a 2019-2021 
PM2.5 annual design value for the Liberty monitoring site of 
11.2 [micro]g/m\3\, which is less than the 2012 annual PM2.5 
NAAQS of 12.0 [micro]g/m\3\.
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    \7\ 40 CFR part 50, appendix N, section 3.0(c) provides that, 
``The default dataset for PM2.5 mass concentrations for a 
site shall consist of the measured concentrations recorded from the 
designated primary monitor(s) . . . .'' It is only ``[i]f a valid 
daily value is not produced by the primary monitor for a particular 
day (scheduled or otherwise), but a value is available from a 
collocated monitor,'' that data from the collocated monitor(s) 
should be used to augment the site's data per 40 CFR part 50, 
appendix N, section 3.0(d).
    \8\ ``Air Monitoring Network Plan for Calendar Year 2021,'' 
Allegheny County Health Department, July 1, 2020, pp.42-44.
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III. Final Action

    For the reasons discussed in detail in the proposed rulemaking and 
summarized herein, EPA is taking final action under CAA sections 
179(c)(1) and 188(b)(2) to determine that the Allegheny County 
PM2.5 nonattainment area attained the 2012 annual 
PM2.5 NAAQS by its December 31, 2021, attainment date. This 
action fulfills EPA's statutory obligation under CAA sections 179(c)(1) 
and 188(b)(2) to determine whether the Allegheny County 
PM2.5 nonattainment area attained the NAAQS by the 
attainment date. This determination does not constitute a redesignation 
to attainment. The Allegheny PM2.5 nonattainment area will 
remain designated nonattainment for the 2012 annual PM2.5 
NAAQS until such time as the EPA determines, pursuant to sections 107 
and 175A of the CAA, that the Allegheny PM2.5 nonattainment 
area meets the CAA requirements for redesignation to attainment, 
including an approved maintenance plan showing that the area will 
continue to meet the standard for 10 years.

IV. Statutory and Executive Order Reviews

A. General Requirements

    This rulemaking action constitutes a determination of attainment of 
the 2012 annual PM2.5 NAAQS based on air quality monitoring 
data and does not impose additional requirements. For that reason, this 
determination of attainment:
     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);
     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); and
     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 Clean Air Act;
    In addition, this determination does not impact any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further

[[Page 32120]]

defines the term fair treatment to mean that ``no group of people 
should bear a disproportionate burden of environmental harms and risks, 
including those resulting from the negative environmental consequences 
of industrial, governmental, and commercial operations or programs and 
policies.'' Due to the nature of the action being taken, this action is 
expected to have neutral to positive impact on the air quality of the 
affected area. In addition, there is no information in the record 
inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.

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 18, 2023. Filing a petition for 
reconsideration by the Administrator of this final action 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 to determine that the Allegheny County 
nonattainment area attained the 2012 annual PM2.5 NAAQS by 
its 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, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 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 NN--Pennsylvania

0
2. Amend Sec.  52.2056 by adding paragraph (p) to read as follows:


Sec.  52.2056  Determinations of attainment.

* * * * *
    (p) Based on air quality data for the 3-year period 2019 to 2021, 
EPA has determined that the Allegheny County nonattainment area 
attained the 2012 annual fine particulate matter (PM2.5) 
National Ambient Air Quality Standard (NAAQS) by the applicable 
attainment date of December 31, 2021. Therefore, EPA has met the 
requirement pursuant to Clean Air Act (CAA) sections 179(c) and 
188(b)(2) to determine, based on the area's air quality as of the 
attainment date, whether the area attained the standard. The Allegheny 
County PM2.5 nonattainment area is therefore not subject to 
the consequences for failing to attain, pursuant to CAA section 179(d).

[FR Doc. 2023-10728 Filed 5-18-23; 8:45 am]
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