Approval and Promulgation of One-Year Extension for Attaining the 1997 8-Hour Ozone Standard for the New Jersey Portion of the Philadelphia-Wilmington-Atlantic City Moderate Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving an extension from June 15, 2010 to June 15, 2011 of the applicable attainment date for the New Jersey portion of the Philadelphia-Wilmington-Atlantic City 1997 8-hour ozone nonattainment area (Philadelphia Area), which is classified as moderate nonattainment for the 1997 8-hour ozone national ambient air quality standard (NAAQS). This extension is based in part on complete, quality-assured air quality data recorded during the 2009 ozone season. In accordance with requirements for a 1-year extension, the Philadelphia Area's 4th highest daily 8-hour monitored ozone value during the 2009 ozone season at each monitor in the area is less than 0.084 parts per million (ppm). EPA is revising the table with regard to the 8-hour ozone attainment date for the New Jersey portion of the Philadelphia Area.

DATES:

Effective Date: This rule is effective on February 22, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2010-0688. 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., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Region II Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is 212-637-4249.

FOR FURTHER INFORMATION CONTACT:

Paul Truchan, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

On June 23, 2010, the State of New Jersey requested a one-year attainment date extension for the Philadelphia Area. The Philadelphia Area, which is classified as moderate for the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS), consists of Cecil County in Maryland; Bucks, Chester, Delaware, Montgomery and Philadelphia Counties in Pennsylvania; the entire State of Delaware; and Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Ocean, and Salem Counties in New Jersey. Since this area was classified as a moderate ozone nonattainment area, the statutory ozone attainment date, as prescribed by section 181(a) of the Clean Air Act (CAA), is June 15, 2010. New Jersey requested that the attainment date be extended to June 15, 2011.

On November 9, 2010 (75 FR 68733), EPA proposed to approve New Jersey's request based upon:

(1) New Jersey has complied with all requirements and commitments pertaining to the area in the applicable ozone implementation plan. New Jersey's applicable ozone implementation plan can be found at 40 CFR 52.1570; and

(2) The maximum 4th highest daily 8-hour monitored value at any monitoring site in the Philadelphia area during the 2009 ozone season was 0.074 ppm, which is below the 0.084 ppm criteria.

II. Comments

EPA received one comment in response to the proposal which supported the decision to approve an attainment date extension.

III. Final Action

Pursuant to CAA section 181(a) and 40 CFR 51.907, EPA is approving an attainment date extension from June 15, 2010 to June 15, 2011 for the New Jersey portion of the Philadelphia Area, which is classified as moderate for the 1997 8-hour ozone NAAQS. The table in 40 CFR 81.331 will be modified to reflect EPA's approval of New Jersey's attainment date extension request. The table is entitled “New Jersey—Ozone (8-Hour Standard).”

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely finds that an area has qualified for a one-year extension of the attainment date of a previously established NAAQS, and imposes no additional requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule does not impose any additional enforceable duties, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely determines that an area has attained a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This rule does not involve establishment of technical standards, and thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The rulemaking does not affect the level of protection provided to human health or the environment because extending the attainment date does not alter the emission reduction measures that are required to be implemented in the New Jersey portion of the Philadelphia-Wilmington-Atlantic City area, which is classified as moderate nonattainment for the 1997 8-hour ozone standard. See 69 FR 23909 (April 30 2004). Additionally, if the Philadelphia-Wilmington-Atlantic City Area were not granted an extension of its attainment date, EPA's recourse would be to initiate a reclassification of the Philadelphia-Wilmington-Atlantic City Area from its current classification of moderate nonattainment to serious nonattainment, pursuant to section 181(b)(2) of the CAA. Because the Philadelphia-Wilmington-Atlantic City area was formerly a severe nonattainment area under the revoked 1-hour ozone standard (see, 56 FR 56773, November 6, 1991), it is required to continue to implement severe area requirements pursuant to EPA's interpretation of “anti-backsliding” provision of section 172(e) of the CAA. See 69 FR 23973, April 30, 2004, South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006), modified and rehearing den., 489 F.3d 1245 (D.C. Cir. 2007). The severe area requirements are more stringent than both the moderate and serious area requirements set forth in Title I, Part D, Subpart 2 of the CAA. Therefore, even if EPA were to not grant the attainment date extension and instead move to reclassify the area to serious nonattainment, no additional emission reduction measures would be required to be implemented in the Philadelphia-Wilmington-Atlantic City area through a 181(b)(2) reclassification. The extension of the attainment deadline for the 1997 8-hour ozone NAAQS does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 22, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control

Part 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 81—[AMENDED]

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

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

2. In § 81.331 the table entitled “New Jersey—Ozone (8-Hour Standard)” revise the entry for “Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE” to read as follows: