Designations of Areas for Air Quality Planning Purposes; Pennsylvania, New Jersey, Maryland, Delaware; Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 2015 8-Hour Ozone Nonattainment Area; Reclassification to Serious

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

Under the Clean Air Act (CAA or the “Act”), the Environmental Protection Agency (EPA) is granting a request from the Commonwealth of Pennsylvania and the States of New Jersey, Maryland, and Delaware to reclassify the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE ozone nonattainment area from “Moderate” to “Serious” for the 2015 8-hour ozone national ambient air quality standards (2015 ozone NAAQS).

DATES:

This final rule is effective on July 30, 2024.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2024-0351. 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:

For questions relating to New Jersey, contact Fausto Taveras, Environmental Protection Agency, Region II, 290 Broadway, New York, New York 10007-1866, at (212) 637-3378, or by email at Taveras.Fausto@epa.gov, and for questions relating to Pennsylvania, Maryland, and/or Delaware, contact Ian Neiswinter, Planning and Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1600 John F Kennedy Boulevard, Philadelphia, Pennsylvania 19103, at (215) 814-2011, or by email at Neiswinter.Ian@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Table of Contents

I. Reclassification of the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE area to Serious Ozone Nonattainment

II. Statutory and Executive Order Reviews

I. Reclassification of the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Area to Serious Ozone Nonattainment

Effective August 3, 2018 (83 FR 25776), the EPA classified the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE area (the Philadelphia Area ) under the CAA as “Marginal” for the 2015 8-hour ozone NAAQS. Classification of this area as a Marginal ozone nonattainment area established a requirement that the area attain the 2015 ozone NAAQS as expeditiously as practicable, but no later than three years from designation, i.e., August 3, 2021. Effective November 7, 2022 (87 FR 60897), the EPA determined that the Philadelphia Area failed to attain by the applicable Marginal attainment date. In that action, the EPA reclassified the Philadelphia Area as Moderate nonattainment for the 2015 ozone NAAQS and established the Moderate attainment date as August 3, 2024. On July 17, 2024, the Commonwealth of Pennsylvania requested that the EPA reclassify the Philadelphia Area from Moderate to Serious. On July 18, 2024, the States of Delaware, Maryland, and New Jersey requested that the EPA reclassify the Philadelphia Area from Moderate to Serious. The request letters from the States are also provided in the docket of this rulemaking.

We are approving these States' reclassification request under section 181(b)(3) of the Act, which provides for “voluntary reclassification.” Because the plain language of section 181(b)(3) mandates that we approve such a request, the EPA is granting the States' request for voluntary reclassification under section 181(b)(3) for the Philadelphia Area for the 2015 ozone NAAQS, and the EPA is reclassifying the area from Moderate to Serious. Because of this action, the Philadelphia Area must now attain the 2015 ozone NAAQS as expeditiously as practicable, but no later than nine years from the date of the initial designation as nonattainment, i.e., August 3, 2027. Applicable SIP requirements and deadlines associated with the reclassification will be addressed in a separate notice.

The EPA has determined that this action falls under the “good cause” exemption in section 553(b)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are “impracticable, unnecessary or contrary to the public interest.” The EPA has determined that public notice and comment for this action is unnecessary because our action to approve voluntary reclassification requests under CAA section 181(b)(3) is nondiscretionary both in its issuance and in its content. As such, notice and comment rulemaking procedures would serve no useful purpose.

The EPA also finds that there is good cause under APA section 553(d)(3) for this reclassification to become effective on the date of publication. Section 553(d)(3) of the APA allows an effective date of less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” See5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. The schedule for required plan submittals for the Philadelphia Area under the new classification will be proposed in a separate action. For this reason, the EPA finds good cause under APA section 553(d)(3) for this reclassification to become effective on the date of publication.

II. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act this action:

• 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive 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 action 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 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. This reclassification action relates to ozone, a pollutant that is regional in nature, and is not the type of action that could result in the types of local impacts addressed in Executive Order 12898.

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 September 30, 2024. 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 reclassifying the Philadelphia Area from Moderate to Serious for the 2015 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 81

• Air pollution control
• National parks
• Wilderness areas

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

PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

2. In § 81.308, the table titled “Delaware—2015 8-Hour Ozone NAAQS” is amended by revising the entry for “Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE” to read as follows:

3. In § 81.321, the table entitled “Maryland—2015 8-Hour Ozone NAAQS” is amended by revising the entry for “Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE” to read as follows:

4. In § 81.331, the table entitled “New Jersey—2015 8-Hour Ozone NAAQS” is amended by revising the entry for “Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE” to read as follows:

5. In § 81.339, the table entitled “Pennsylvania—2015 8-Hour Ozone NAAQS” is amended by revising the entry for “Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE” to read as follows: