[Federal Register Volume 77, Number 15 (Tuesday, January 24, 2012)]
[Proposed Rules]
[Pages 3417-3422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1356]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2012-0008; A-1-FRL-9621-4]
Approval and Promulgation of Air Quality Implementation Plans;
Massachusetts; Determination of Attainment of the One-Hour Ozone
Standard for the Springfield (Western Massachusetts) Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to determine that the Springfield
(Western Massachusetts), serious one-hour ozone nonattainment area did
not meet the applicable deadline of December 31, 2003 for attaining the
one-hour National Ambient Air Quality Standard (NAAQS) for ozone. This
proposed determination is based upon complete, certified, quality-
assured ambient air quality monitoring data for the 2001-2003
monitoring period showing that the area had an expected ozone
exceedance rate above the level of the now revoked one-hour ozone NAAQS
during that period. Separate from and independent of this proposed
determination, EPA is also proposing to determine that the Springfield
(Western Massachusetts) serious one-hour ozone nonattainment area
currently attains the now revoked one-hour NAAQS for ozone, based upon
complete, quality-assured, certified ambient air monitoring data for
the 2007-2009 and 2008-2010 monitoring
[[Page 3418]]
periods. Preliminary one-hour ozone data available for 2011 also show
the area continues to meet the one-hour NAAQS for ozone. If EPA
finalizes its determination that the area is currently attaining the
one-hour standard, the obligation to submit one-hour ozone contingency
measures will be suspended. EPA is proposing these determinations under
the Clean Air Act.
DATES: Written comments must be received on or before February 23,
2012.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2012-0008 by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected]
3. Fax: (617) 918-0047.
4. Mail: ``Docket Identification Number EPA-R01-OAR-2012-0008,''
Anne Arnold, U.S. Environmental Protection Agency, EPA New England
Regional Office, 5 Post Office Square, Suite 100 (mail code: OEP05-2),
Boston, MA 02109-3912.
5. Hand Delivery or Courier: Deliver your comments to: Anne Arnold,
Manager, Air Quality Planning Unit, Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
5 Post Office Square, Suite 100, Boston, MA 02109-3912. Such deliveries
are only accepted during the Regional Office's normal hours of
operation. The Regional Office's official hours of business are Monday
through Friday, 8:30 to 4:30, excluding legal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2012-0008. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov, or
email, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 in www.regulations.gov or
in hard copy at Office of Ecosystem Protection, U.S. Environmental
Protection Agency, EPA New England Regional Office, 5 Post Office
Square, Suite 100, Boston, MA. EPA requests that if at all possible,
you contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
legal holidays.
FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality
Planning Unit, U.S. Environmental Protection Agency, EPA New England
Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-
3912, telephone number (617) 918-1664, fax number (617) 918-0664, email
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Organization of this document. The following outline is provided to
aid in locating information in this preamble:
I. What is EPA proposing?
A. Proposed Determination of Failure To Attain by Applicable
Attainment Date
B. Proposed Determination of Current Attainment
II. What is the background for these proposed actions?
A. Statutory and Regulatory Background
B. Basis and Effect of Proposed Determinations
III. What are EPA's analyses of data for purposes of determining
attainment of the one-hour ozone standard?
A. How does epa compute whether an area meets the one-hour ozone
standard?
B. EPA's Analyses of the One-Hour Ozone Data for the Springfield
(Western Massachusetts) Area
IV. Proposed Determinations
V. Statutory and Executive Order Reviews
I. What is EPA proposing?
EPA is proposing two separate and independent determinations for
the Springfield (Western Massachusetts) one-hour ozone serious
nonattainment area (hereafter, ``the Western Massachusetts area'').
A. Proposed Determination of Failure To Attain by Applicable Attainment
Date
EPA is proposing to determine that the Western Massachusetts area
did not attain the one-hour ozone NAAQS by the applicable attainment
date, December 31, 2003. This proposed determination is based upon
complete, quality-assured and certified air quality monitoring data for
the 2001-2003 monitoring period.
B. Proposed Determination of Current Attainment
In addition, EPA is proposing to determine that the Western
Massachusetts area is currently attaining the one-hour ozone NAAQS
based upon complete, quality-assured and certified ambient air
monitoring data for the 2007-2009 and 2008-2010 monitoring periods. If
this proposed determination is finalized, any obligations related to
one-hour ozone contingency measures in the Western Massachusetts area
shall be suspended.
II. What is the background for these proposed actions?
A. Statutory and Regulatory Background
The Western Massachusetts one-hour ozone nonattainment area
consists of Berkshire, Franklin, Hampden and Hampshire Counties. EPA
designated this area as nonattainment for one-hour ozone following the
enactment of the Clean Air Act (CAA) Amendments of 1990. Most areas of
the country that EPA designated nonattainment for the one-hour ozone
NAAQS were classified by operation of law as marginal, moderate,
serious, severe, or extreme depending on the severity of the area's air
quality problem. See CAA sections 107(d)(1)(C) and 181(a). The Western
Massachusetts area was classified as serious. The one-hour ozone
attainment deadline for the Western Massachusetts serious area was
initially set for November 15, 1999, and later was extended to December
31, 2003. See 66 FR 666 (January 3, 2001).
[[Page 3419]]
On July 18, 1997 (62 FR 38856), EPA promulgated a new standard for
ozone based on an 8-hour average concentration (the ``1997 8-hour ozone
NAAQS''). EPA designated and classified most areas of the country under
the 8-hour ozone NAAQS in an April 30, 2004 final rule. See 69 FR
23858. EPA designated Western Massachusetts as nonattainment for the
1997 8-hour ozone NAAQS, and at the time of designation the area did
not meet the one-hour ozone standard.
On April 30, 2004, EPA issued a final rule (69 FR 23951) entitled
``Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality
Standard--Phase 1,'' referred to as the Phase 1 Rule. Among other
matters, this rule revoked the one-hour ozone NAAQS in most areas of
the country, effective June 15, 2005. See 40 CFR 50.9(b); 69 FR at
23996; and 70 FR 44470. The Phase 1 Rule also set forth how anti-
backsliding principles will ensure continued progress toward attainment
of the eight-hour ozone NAAQS by identifying which one-hour
requirements remain applicable in an area after revocation of the one-
hour ozone NAAQS. Although, EPA revoked the one-hour ozone standard,
eight-hour ozone nonattainment areas remain subject to certain one-
hour, anti-backsliding requirements based on their one-hour ozone
classification. Initially, in our rules to address the transition from
the one-hour to the eight-hour ozone standard, EPA did not include one-
hour contingency measures among the measures retained as one-hour ozone
anti-backsliding requirements.\1\ However, on December 23, 2006, the
United States Court of Appeals for the District of Columbia Circuit
determined that EPA should not have excluded these requirements (and
certain others not relevant here) from its anti-backsliding
requirements. See South Coast Air Quality Management District v. EPA,
472 F.3d 882 (DC Cir. 2006), rehearing denied 489 F.3d 1245 (clarifying
that the vacatur was limited to the issues on which the court granted
the petitions for review). Thus, the Court vacated the provisions that
excluded these requirements. As a result, States must continue to meet
the obligations for one-hour ozone NAAQS contingency measures and EPA
has issued a proposed rule that would remove the vacated provisions of
40 CFR 51.905(e), and that addresses contingency measures for the one-
hour standard. See 74 FR 2936 (January 16, 2009) (proposed rule); and
74 FR 7027 (February 12, 2009) (notice of public hearing and extension
of comment period).
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\1\ Final Rule to Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 1, 69 FR 23951 (April 30, 2004).
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B. Basis and Effect of Proposed Determinations
After revocation of the one-hour ozone standard, EPA must continue
to provide a mechanism to give effect to the one-hour ozone anti-
backsliding requirements. See SCAQMD v. EPA, 47 F.3d 882, at 903. In
keeping with this responsibility with respect to specific one-hour
anti-backsliding measures, such as contingency measures, EPA proposes
to determine that Western Massachusetts failed to attain the one-hour
ozone standard by its applicable attainment date. (CAA sections 301(a)
and 181(b)(2)). Consistent with 40 CFR 51.905(e)(2) and the South Coast
decision, upon revocation of the one-hour ozone NAAQS for an area, EPA
is no longer obligated to determine whether an area has attained the
one-hour NAAQS, except insofar as it relates to effectuating the anti-
backsliding requirements that are specifically retained. EPA's
determination here is linked solely to required one-hour anti-
backsliding contingency measures. A final determination of failure to
attain will not result in reclassification of the area under the
revoked one-hour standard, nor is EPA identifying or determining any
new one-hour reclassification for the area. EPA is no longer required
to reclassify an area to a higher classification for the one-hour ozone
NAAQS based upon a determination that the area failed to attain that
NAAQS by its attainment date. See 40 CFR 51.905(e)(2)(i)(B). Thus, even
if we finalize our proposed determination that the area failed to
attain the one-hour ozone NAAQS by its attainment deadline, the area
will not be reclassified to a higher classification. Moreover, EPA has
previously approved the attainment demonstration and Reasonable Further
Progress (RFP) plans for this area, and in doing so noted that although
there were no approved state implementation plan contingency measures
applicable to the Western Massachusetts area for failure to attain,
there were federal measures which the state had not accounted for in
its attainment demonstration, and which provided more reductions than
necessary to serve the purpose of contingency measures for this area.
See 66 FR 666, January 3, 2001. In addition, as explained elsewhere in
this notice, EPA is proposing to determine that the Western
Massachusetts area is currently attaining the one-hour ozone standard.
The area has been in attainment of the revoked standard since 2009. In
this context, even if EPA's proposed determination that the area did
not attain the standard by the 2003 deadline is finalized, it will not
trigger any additional obligations for the area under the one-hour
ozone standard. Under EPA's ``Clean Data Policy'' interpretation, which
was first articulated for the one-hour standard and then codified for
the 8-hour ozone standard (40 CFR 51.918),\2\ a determination of
attainment suspends obligations for attainment-related requirements for
that standard, including contingency measures. See, for example,
determination of one-hour ozone attainment for Baton Rouge, 75 FR 6570
(February 10, 2010).
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\2\ The U.S. Court of Appeals for the District of Columbia
Circuit upheld the provisions of 40 CFR 51.918, which codified the
Clean Data Policy. Previously Courts of Appeals for several other
Circuits upheld the Clean Data Policy under the one-hour standard.
See NRDC v. EPA, 571 F.3d 1245 (DC Cir. 2009); Sierra Club v. EPA,
99 F. 3d 1551 (10th Cir.1996); Sierra Club v. EPA, 375 F.3d 537 (7th
Cir. 2004) and Our Children's EarthFoundation v. EPA, No. 04-73032
(9th Cir. June 28, 2005) (memorandum opinion).
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III. What are EPA's analyses of data for purposes of determining
attainment of the one-hour ozone standard?
A. How does EPA compute whether an area meets the one-hour ozone
standard?
Although the one-hour ozone NAAQS as promulgated in 40 CFR 50.9
does not address specific data handling conventions, EPA's publicly
articulated position and the approach long since universally adopted by
the air quality management community is that the interpretation of the
one-hour ozone standard requires rounding ambient air quality data
consistent with the stated level of the standard, which is 0.12 parts
per million (ppm). 40 CFR 50.9(a) states that: ``The level of the
national one-hour primary and secondary ambient air quality standards
for ozone * * * is 0.12 parts per million. * * * The standard is
attained when the expected number of days per calendar year with
maximum hourly average concentrations of 0.12 parts per million * * *
is equal to or less than 1, as determined by appendix H to this part.''
Thus, compliance with the NAAQS is based on comparison of air quality
concentrations with the standard and on how many days that standard has
been exceeded, adjusted for the number of missing days.
For comparison with the NAAQS, EPA has clearly communicated the
data handling conventions for the one-hour ozone NAAQS in guidance
documents.
[[Page 3420]]
As early as 1979, EPA's guidance stated that the level of our NAAQS
dictates the number of significant figures to be used in determining
whether the standard was exceeded. The stated level of the standard
defines the number of significant figures to be used in comparisons
with the standard. For example, a standard level of 0.12 ppm means that
measurements are to be rounded to two decimal places (0.005 rounds up),
and, therefore, 0.125 ppm is the smallest concentration value in excess
of the level of the standard. See ``Guideline for the Interpretation of
Ozone Air Quality Standards,'' EPA-450/4-79-003, OAQPS No. 1.2-108,
January 1979. EPA has consistently applied the rounding convention in
this 1979 guideline. See 68 FR 19111, April 17, 2003; 68 FR 62043,
October 31, 2003; and 69 FR 21719, April 22, 2004. EPA determines
attainment status under the one-hour ozone NAAQS on the basis of the
annual average number of expected exceedances of the NAAQS over a
three-year period. See 60 FR 3349, January 17, 1995 and also the
``General Preamble for the Implementation of Title I of the Clean Air
Act Amendments of 1990,'' at 57 FR 13506, April 16, 1992 (``General
Preamble''). EPA's determination is based upon data that have been
collected and quality-assured in accordance with 40 CFR 58, and
recorded in EPA's Air Quality System (AQS) database. To account for
missing data, the procedures found in appendix H to 40 CFR 50 are used
to adjust the actual number of monitored exceedances of the standard to
yield the annual number of expected exceedances (``expected exceedance
days'') at an air quality monitoring site. We determine if an area
meets the one-hour ozone NAAQS by calculating, at each monitor, the
average expected number of days over the standard per year (i.e.,
``average number of expected exceedance days'') during the applicable
3-year period. See the General Preamble, 57 FR 13498, April 16, 1992.
The term ``exceedance'' is used throughout this document to describe a
daily maximum ozone measurement that is equal to or exceeds 0.125 ppm
which is the level of the one-hour standard after rounding. An area
violates the ozone standard if, over a consecutive 3-year period, more
than 3 days of expected exceedances occur at the same monitor. For more
information please refer to 40 CFR 50.9, ``National one-hour primary
and secondary ambient air quality standards for ozone'' and
``Interpretation of the one-hour Primary and Secondary National Ambient
Air Quality Standards for Ozone'' (40 CFR part 50, appendix H).
B. EPA's Analyses of the One-Hour Ozone Data for the Springfield
(Western Massachusetts) Area
Tables 1, 2 and 3 show one-hour ozone data for the Western
Massachusetts area, for each of the three-year periods 2001-2003, 2007-
2009, and 2008-2010. The tables show the actual exceedance days, the
expected exceedance days, and the 3-year average expected exceedance
rate for each monitor in the Western Massachusetts area. The standard
for the one-hour ozone NAAQS is 0.12 ppm and attainment is achieved
when the number of expected exceedances is 1.0 or less averaged over a
three-year period. EPA calculates the expected exceedances based on the
number of times a site exceeds the 0.12 ppm standard averaged over a
three-year period and then adjusts for missing data. In short, if the
three-year average expected exceedances rate is less than or equal to
1.0, the site meets the one-hour ozone NAAQS. If all sites in the area
meet the one-hour ozone standard, then the area meets the one-hour
NAAQS during that time period.
Table 1--One-Hour Ozone Data for the Western Massachusetts Area
[2001-2003]
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Actual 3-Year average
EPA AQS ID Site Year exceedance days Expected expected
over 0.124 ppm exceedance days exceedance rate
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250034002..................................... Adams........................... 2001 0 0.0 0.0
2002 0 0.0 ................
2003 0 0.0 ................
250130003..................................... Agawam \3\...................... 2001 0 0.0 ................
2002 2 2.0 ................
2003 ................ ................ ................
250130008..................................... Chicopee........................ 2001 2 2.0 2.0
2002 4 4.0 ................
2003 0 0.0 ................
250150103..................................... N. Amherst...................... 2001 1 1.0 0.7
2002 1 1.0 ................
2003 0 0.0 ................
250154002..................................... Ware............................ 2001 2 2.0 1.3
2002 2 2.0 ................
2003 0 0.0 ................
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\3\ Site shutdown in 2002. No expected exceedance rate
calculated for 2001-2003.
Table 2--One-Hour Ozone Data for the Western Massachusetts Area
[2007-2009]
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Actual 3-Year average
EPA AQS ID Site Year exceedance days Expected expected
over 0.124 ppm exceedance days exceedance rate
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250034002..................................... Adams........................... 2007 0 0.0 0.0
[[Page 3421]]
2008 0 0.0 ................
2009 0 0.0 ................
250130008..................................... Chicopee........................ 2007 3 3.0 1.0
2008 0 0.0 ................
2009 0 0.0 ................
250150103..................................... N. Amherst...................... 2007 0 0.0 0.0
2008 0 0.0 ................
2009 0 0.0 ................
250154002..................................... Ware............................ 2007 2 2.1 0.7
2008 0 0.0 ................
2009 0 0.0 ................
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Table 3--One-Hour Ozone Data for the Western Massachusetts Area
[2008-2010]
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Actual 3-Year average
EPA AQS ID Site Year exceedance days Expected expected
over 0.124 ppm exceedance days exceedance rate
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250034002..................................... Adams........................... 2008 0 0.0 0.0
2009 0 0.0 ................
2010 0 0.0 ................
250130008..................................... Chicopee........................ 2008 0 0.0 0.0
2009 0 0.0 ................
2010 0 0.0 ................
250150103..................................... N. Amherst...................... 2008 0 0.0 0.0
2009 0 0.0 ................
2010 0 0.0 ................
250154002..................................... Ware............................ 2008 0 0.0 0.0
2009 0 0.0 ................
2010 0 0.0 ................
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EPA has reviewed and evaluated these data in order to make two
separate proposed determinations. First, EPA addresses whether the
Western Massachusetts area attained the one-hour ozone standard by the
applicable attainment date. As shown in Table 1, the Western
Massachusetts one-hour ozone nonattainment area did not meet its
attainment deadline of December 31, 2003, since two ozone monitors in
the area had expected exceedance rates above 1.0. However, as Table 2
shows, the area subsequently attained the one-hour ozone standard based
on 2007-2009 ozone data, and the area continues to meet the one-hour
standard based on complete, quality- assured and certified data for
2008-2010 (Table 3). Preliminary ozone data available for 2011 show
that the area continues in attainment of the one-hour ozone standard.
Thus, EPA is also proposing to determine that based on complete,
quality-assured and certified ozone monitoring data, the Western
Massachusetts area has attained and continues to attain the one-hour
ozone NAAQS.
IV. Proposed Determinations
For the reasons set forth in this notice, EPA is proposing to
determine that the Western Massachusetts one-hour ozone nonattainment
area did not meet its applicable one-hour ozone attainment date of
December 31, 2003, based on complete, quality-assured and certified
ozone monitoring data for 2001-2003.\4\ Separate from and independent
of this proposed determination, EPA is also proposing to determine that
the Western Massachusetts one-hour ozone nonattainment area is
currently attaining the one-hour ozone standard, based on, complete,
quality-assured and certified ozone monitoring data for the 2007-2009
and 2008-2010 monitoring periods. Preliminary data available for 2011
indicate that the area continues to attain the one-hour NAAQS. If EPA
finalizes its proposed determination that the Western Massachusetts
area is currently attaining the one-hour ozone standard, any obligation
to submit contingency measures for the one-hour ozone standard shall be
suspended.
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\4\ For the reasons set forth above, a final determination that
the Western Massachusetts one-hour ozone nonattainment area did not
meet its applicable one-hour ozone attainment deadline will not
result in reclassification of the area for the one-hour standard,
nor in any additional air quality obligations for the area.
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EPA is soliciting public comments on the issues discussed in this
notice or on other relevant matters. These comments will be considered
before taking final action. Interested parties may participate in the
Federal rulemaking process by submitting written comments to the EPA
New England Regional Office listed in the ADDRESSES section of this
Federal Register.
V. Statutory and Executive Order Reviews
These actions propose to make determinations of attainment or
nonattainment based on monitored air quality data and do not impose
additional requirements beyond those imposed by statute or regulation.
For that reason, these proposed actions:
Are not ``significant regulatory actions'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Do not impose an information collection burden under the
provisions
[[Page 3422]]
of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are 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.);
Do 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);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are 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; and
Do 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, these actions do 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.
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 11, 2012.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2012-1356 Filed 1-23-12; 8:45 am]
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