[Federal Register Volume 77, Number 16 (Wednesday, January 25, 2012)]
[Proposed Rules]
[Pages 3720-3725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1518]
[[Page 3720]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2011-0956; FRL-9623-2]
Determination of Failure To Attain the One-Hour Ozone Standard by
2007, Determination of Current Attainment of the One Hour Ozone
Standard, Determinations of Attainment of the Eight-Hour Ozone
Standards for the New York-Northern New Jersey-Long Island
Nonattainment Area in Connecticut, New Jersey and New York
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing four separate and independent determinations
related to the New York-Northern New Jersey-Long Island (NY-NJ-CT) one-
hour and 1997 eight-hour ozone nonattainment areas. The boundaries of
the one-hour and eight-hour ozone nonattainment areas differ slightly.
If EPA's determination that the area is currently attaining the eight-
hour standard is finalized, EPA's ozone implementation regulation
provides that the requirements for the States to submit certain
reasonable further progress plans, attainment demonstrations,
contingency measures and any other planning requirements of the Clean
Air Act related to attainment of that ozone standard shall be suspended
for as long as the area continues to attain the standard. A
determination of attainment does not constitute a redesignation to
attainment. Redesignation requires the states to meet a number of
additional criteria, including EPA approval of a state plan to maintain
the air quality standard for ten years after redesignation.
DATES: Comments must be received on or before February 24, 2012. Public
comments on this action are requested and will be considered before
taking final action.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2011-0956, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Email: [email protected]
Fax: (212) 637-3901
Mail: Raymond Werner, Chief, Air Programs Branch,
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866.
Hand Delivery: Raymond Werner, Chief, Air Programs Branch,
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866. 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 Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2011-0956. 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 information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. 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. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
FOR FURTHER INFORMATION CONTACT: If you have questions concerning EPA's
proposed action related to New Jersey or New York, please contact Paul
Truchan, Air Programs Branch, Environmental Protection Agency, 290
Broadway, 25th floor, New York, New York 10008-1866, telephone number
(212) 637-4249.
If you have questions concerning EPA's proposed action related to
Connecticut, please contact Richard Burkhart, Air Quality Planning
Unit, Environmental Protection Agency, EPA New England Regional Office,
5 Post Office Square-Suite 100, Mail Code OEP05-02, Boston, MA 02109-
3912, telephone number (617) 918-1664, fax number (617) 918- 0664,
email [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What are EPA's proposed actions?
II. What is the background for these proposed actions?
III. What is the rationale for and effect of these proposed
determinations?
A. One-Hour Ozone Determinations
B. Eight-Hour Ozone Determinations
IV. How does EPA compute whether an area complies with the one-hour
ozone standard?
V. How does EPA compute whether an area complies with the 1997
eight-hour ozone standard?
VI. What are EPA's analyses of data regarding attainment of the one-
hour and 1997 eight-hour ozone standards in the NY-NJ-CT areas?
A. Data for the One-Hour Ozone Standard
B. Data for the 1997 eight-hour ozone standard
VII. Proposed Actions
VIII. Statutory and Executive Order Reviews
I. What are EPA's proposed actions?
EPA is proposing four separate and independent determinations.
First, with respect to the one-hour ozone NAAQS, EPA is proposing to
determine that the New York-Northern New Jersey-Long Island (NY-NJ-CT)
one-hour ozone nonattainment area previously failed to attain the one-
hour NAAQS by its applicable attainment deadline of November 15, 2007
(based on complete quality-assured and certified ozone monitoring data
for 2005-2007). Second, and also with respect to the one-hour ozone
NAAQS, EPA is proposing to determine that the area is currently
attaining the one-hour standard based on complete, quality-assured and
certified ozone monitoring data for 2008-2010. Preliminary ozone
monitoring data for 2011 indicate the area continues to attain the one-
hour ozone standard.
The third and fourth proposed determinations concern the 1997
eight-hour ozone NAAQS. EPA is proposing to determine that the NY-NJ-CT
eight-hour ozone nonattainment area attained the 1997 eight-hour
standard by the applicable deadline, June 15, 2010, based on complete,
quality-assured and certified ozone monitoring data for 2007-2009.
Finally, EPA is also proposing to determine that the area is currently
attaining the 1997 eight-hour ozone standard based on complete,
quality-assured and certified ozone monitoring data for 2008-2010.
Preliminary data for 2011 indicate that the area continues to attain
the 1997
[[Page 3721]]
eight-hour ozone standard. If EPA's determination that the area is
currently attaining the eight-hour standard is finalized, 40 CFR 51.918
\1\ of EPA's ozone implementation rule provides that the requirements
for the States to submit certain reasonable further progress plans,
attainment demonstrations, contingency measures and any other planning
requirements of the Clean Air Act related to attainment of that
standard shall be suspended for as long as the area continues to attain
the standard.
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\1\ CFR refers to the Code of Federal Regulations, in this case
Title 40 part 51.
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In addition to these proposed determinations, EPA is intending to
withdraw EPA's proposed disapprovals of the CT and NJ 1997 eight-hour
ozone attainment demonstrations, which were previously published in the
Federal Register on May 8, 2009 (74 FR 21568 and 21578), provided that
EPA finalizes its proposed determination here that the area is
currently attaining the 1997 eight-hour ozone standard.
In order to determine the areas' air quality status for purposes of
the proposed determinations, EPA reviewed ozone monitoring air quality
data from the States, in accordance with 40 CFR 50.9, 40 CFR part 50
appendix H and appendix I, and EPA policy and guidance, as well as data
processing, data rounding and data completeness requirements. EPA's
review is discussed at length below.
II. What is the background for these proposed actions?
The boundaries for the NY-NJ-CT one-hour and the eight-hour ozone
nonattainment areas are slightly different. For the one-hour ozone
NAAQS of 0.12 parts per million (ppm), the area is composed of: The
Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean,
Passaic, Somerset, Sussex, and Union Counties in New Jersey; the Bronx,
Kings, Nassau, New York, Queens, Richmond, Rockland, Suffolk,
Westchester Counties and part of Orange County in New York; and parts
of Fairfield and Litchfield Counties in Connecticut. The 1997 eight-
hour ozone nonattainment area is composed of many of the same counties
as the one-hour ozone nonattainment area but does not include Ocean
County in New Jersey, any part of Orange County in New York or any part
of Litchfield County in Connecticut, and does include Warren County in
New Jersey, and all of Fairfield, New Haven and Middlesex Counties in
Connecticut. The one-hour ozone standard designations were established
by EPA following the enactment of the Clean Air Act (CAA) Amendments in
1990. Each area of the country that was designated nonattainment for
the one-hour ozone NAAQS was 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 NY-NJ-CT one-hour ozone nonattainment
area was designated nonattainment and classified as severe-17, with an
attainment deadline of November 15, 2007.
On July 18, 1997, (62 FR38856), EPA promulgated a new, more
protective standard for ozone based on eight-hour average
concentrations (the ``1997 eight-hour ozone NAAQS''). EPA designated
and classified most areas of the country under the eight-hour ozone
NAAQS in an April 30, 2004 final rule (69 FR 23858). The NY-NJ-CT 1997
eight-hour ozone nonattainment area was designated nonattainment and
classified as moderate with an attainment deadline of June 15, 2010.
On April 30, 2004, EPA also 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 other
areas of the country, effective June 15, 2005. (See, 40 CFR 50.9(b); 69
FR at 23996; and 70 FR 44470 (August 3, 2005)). 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 ozone requirements remain applicable in an area after
revocation of the one-hour ozone NAAQS.
Although EPA revoked the one-hour ozone standard (effective June
15, 2005), eight-hour ozone nonattainment areas remain subject to
certain one-hour anti-backsliding requirements based on their one-hour
ozone classification. Initially, EPA's rules to address the transition
from the one-hour to the eight-hour ozone standard did not include one-
hour contingency measures or major source penalty fee programs among
the measures retained as one-hour ozone anti-backsliding
requirements.\2\ 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. South Coast Air
Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006) reh'g
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. EPA has issued a proposed rule that would
remove the vacated provisions of 40 CFR 51.905(e), and that addresses
contingency measures for failure to attain or make reasonable further
progress toward attainment of the one-hour standard. See 74 FR 2936,
January 16, 2009 (proposed rule); 74 FR 7027, February 12, 2009 (notice
of public hearing and extension of comment period).
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\2\ 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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III. What is the rationale for and effect of these proposed
determinations?
A. One-Hour Ozone Determinations
After revocation of the one-hour ozone standard, EPA must continue
to provide a mechanism to give effect to the one-hour anti-backsliding
requirements. See South Coast v. EPA, 47 F.3d 882, at 903. In keeping
with this responsibility with respect to one-hour anti-backsliding
contingency measures and section 185 fee programs for the NY-NJ-CT one
hour ozone area, EPA proposes to determine that the NY-NJ-CT area
failed to attain the one-hour ozone standard by its applicable
attainment date. Consistent with 40 CFR 51.905(e)(2) and the South
Coast court 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 by its applicable deadline, except insofar
as it relates to effectuating the anti-backsliding requirements that
are specifically retained. EPA's proposed determination here--that the
area did not attain the one-hour ozone standard by the November 15,
2007 deadline (based on data for 2005-2007) is linked solely to two
required one-hour anti-backsliding measures: i.e., one-hour contingency
measures for failure to attain under section 172(c)(9), and fee
programs under sections 182(d)(3), 182(f) and 185.
A final determination of failure to attain by the area's 2007
attainment date will not result in reclassification of the area under
the revoked one-hour standard. As a severe one-hour nonattainment area,
the NY-NJ-CT area is not subject to reclassification for the one-hour
standard, and in any event EPA is no longer required to reclassify
[[Page 3722]]
any 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. 40 CFR 51.905(e)(2)(i)(B).
EPA's proposed determination that the area failed to attain the
one-hour ozone standard by its applicable date, if finalized, would
bear on the area's obligations with respect to two one-hour ozone anti-
backsliding requirements whose implementation is triggered by a finding
of failure to attain by the applicable attainment date: Section
172(c)(9) contingency measures for failure to attain and sections
182(d)(3) and 185 major stationary source fee programs.
With respect to the one-hour ozone anti-backsliding requirement for
contingency measures, EPA has previously approved all of the States'
one-hour ozone attainment demonstrations, reasonable further progress
plans, and contingency plans for this area. See 67 FR 5152 (February 4,
2002) for New Jersey, 67 FR 5170 (February 4, 2002) for New York, and
66 FR 63921 (December 11, 2001) for Connecticut.
Moreover, EPA is also proposing a separate and independent one-hour
ozone determination--that the NY-NJ-CT area currently attains the one-
hour ozone standard, based on complete, quality-assured and certified
ozone data for 2008-2010, and preliminary data available for 2011. If
this determination is finalized, then even if EPA finalizes its
proposed determination that the area failed to attain by the 2007
deadline, it will not result in any one-hour ozone contingency measure
obligations for the area. Under EPA's ``Clean Data Policy''
interpretation, which was first articulated for the one-hour standard
and then codified for the eight-hour ozone standard (40 CFR 51.918),\3\
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). With respect to the one-hour
ozone anti-backsliding requirement for penalty fees, section 182(d)(3)
requires SIPs to include provisions required by section 185. Section
185 requires one-hour ozone SIPs for severe areas to provide that, if
the area has failed to attain by the attainment date, each major
stationary source of ozone precursors located in the area must begin
paying a fee to the state. Thus a final determination of failure to
attain by the area's one-hour attainment date would trigger the one-
hour anti-backsliding obligation to implement the penalty fee program
under section 182(d)(3), 182(f) and 185, unless that obligation is
terminated.
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\3\ 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 (D.C. 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 Earth Foundation v. EPA, No. 04-73032
(9thCir. June 28, 2005) (memorandum opinion).
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B. Eight-Hour Ozone Determinations
EPA proposes to determine, in accordance with section 181(b)(2),
that the NY-NJ-CT area attained the 1997 eight-hour ozone standard by
the applicable deadline for that standard, June 15, 2010. This proposed
determination is based on complete, quality-assured and certified data
for 2007-2009. If EPA finalizes this determination, the area will be
not be reclassified, there will be no obligation with respect to
contingency measures for failure to attain by the attainment deadline,
nor any other consequence that would have resulted had the area failed
to attain by its attainment date.
In addition, EPA is separately and independently proposing to
determine that the NY-NJ-CT area is currently attaining the 1997 eight-
hour ozone standard, based on complete quality-assured and certified
data for 2008-2010 and preliminary data for 2011 that indicate
continued attainment. EPA's ozone implementation rule at 40 CFR 51.900-
918, promulgated under sections 172 and 182 of the Clean Air Act,
describes the Clean Air Act requirements for areas designated
nonattainment for the 1997 eight-hour ozone standard. For areas that
attain the standard, section 51.918 of the implementation rule provides
that, upon a determination of attainment by EPA, the requirements for a
state to submit certain required planning SIPs related to attainment of
the eight-hour NAAQS, such as attainment demonstrations, reasonable
further progress (RFP) plans \4\ and contingency measures, shall be
suspended. EPA's action only suspends the requirements to submit the
SIP revisions discussed above.\5\
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\4\ EPA approved the RFP plan for New Jersey on May 15, 2009 (74
FR 22837) and the RFP plan for New York on August 18, 2011 (76 FR
51264). EPA proposed approval of the RFP plan for Connecticut on
September 20, 2010 (75 FR 57221).
\5\ A determination that the area is currently attaining the
1997 eight-hour ozone standard is not equivalent to a redesignation
of the area to attainment for that standard. Attainment of the ozone
NAAQS is only one of the criteria set forth in CAA section
107(d)(3)(E) that must be satisfied for an area to be redesignated
to attainment. To be redesignated, the state must submit and receive
full approval of a redesignation request for the area that satisfies
all of the criteria of section 107(d)(3)(E), including a
demonstration that the improvement in the area's air quality is due
to permanent and enforceable reductions and a fully-approved SIP
meeting all of the applicable requirements under section 110 and
part D and a fully-approved maintenance plan for the 1997 eight-hour
ozone standard. If, however, the determination of current attainment
for the 1997 eight-hour standard is finalized, and EPA subsequently
determines after notice and comment rulemaking in the Federal
Register that the area has violated the standard, the basis for the
suspension of these requirements for the area would no longer exist,
and the area would thereafter have to address the pertinent
submission requirements within a reasonable period of time. EPA
would establish that time period, taking into account the
circumstances surrounding the particular submissions at issue.
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EPA is also intending to withdraw our previous proposed
disapprovals of the ozone attainment demonstrations submitted by
Connecticut and New Jersey for the NY-NJ-CT eight-hour ozone
nonattainment area, provided that EPA finalizes its proposed
determination that the area is currently attaining the 1997 eight-hour
ozone standard.
IV. How does EPA compute whether an area complies with the one-hour
ozone standard?
Although the one-hour ozone NAAQS as promulgated in 40 CFR 50.9
includes no discussion of 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 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 above 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. As early as 1979, EPA issued guidance stating that the level
of our NAAQS
[[Page 3723]]
dictates the number of significant figures to be used in determining
whether the standard was exceeded. The stated level of the standard is
taken as defining 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 19106, 19111 (April 17, 2003), 68 FR 62041, 62043 (October
31, 2003), and 69 FR 21717, 21720 (April 22, 2004). Then, 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 see,
also, ``General Preamble for the Implementation of Title I of the Clean
Air Act Amendments of 1990,'' at 57 FR 13498, 13506 (April 16, 1992)
(``General Preamble'')). EPA's determination is based upon data that
has been collected and quality-assured in accordance with 40 CFR part
58, and recorded in EPA's Air Quality System (AQS) database, (formerly
known as the Aerometric Information Retrieval System (AIRS)). To
account for missing data, the procedures found in appendix H to 40 CFR
part 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. EPA
determines whether an area has attained 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, generally, the
General Preamble, 57 FR 13498, April 16, 1992 and Memorandum from D.
Kent Berry, Acting Director, Air Quality Management Division, EPA, to
Regional Air Office Directors, ``Procedures for Processing Bump Ups and
Extensions for Marginal Ozone Nonattainment Areas,'' February 3, 1994.
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 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
1-Hour Primary and Secondary National Ambient Air Quality Standards for
Ozone'' (40 CFR part 50, appendix H).
V. How does EPA compute whether an area complies with the 1997 eight-
hour ozone standard?
An area achieves attainment of the eight-hour ozone standard when
an area's monitoring sites all have a design value of less than 0.085
ppm, calculated as described in 40 CFR part 50, Appendix I. The design
value is the average of each year's fourth highest concentration, over
a three year period, as described in Appendix I to 40 CFR part 50. From
40 CFR part 50, Appendix I, Section 2.2:
The standard-related summary statistic is the annual fourth-
highest daily maximum eight-hour average ozone concentration,
expressed in parts per million, averaged over three years. The 3-
year average shall be computed using the three most recent,
consecutive calendar years of monitoring data meeting the data
completeness requirements described in this appendix. The computed
3-year average of the annual fourth-highest daily maximum eight-hour
average ozone concentrations shall be expressed to three decimal
places (the remaining digits to the right are truncated.)
This proposed action addresses only the 1997 eight-hour ozone
standard, and does not address the ozone standard that EPA established
in 2008, or any future ozone standard. This proposed action does not
affect and is not affected by future air quality designations for the
2008 ozone standard.
VI. What are EPA's analyses of data regarding attainment of the one-
hour and 1997 eight-hour ozone standards in the NY-NJ-CT areas?
New York, New Jersey, and Connecticut submitted requests for EPA to
make ``Clean Data'' determinations regarding whether the NY-NJ-CT area
is currently attaining both the one-hour and eight-hour ozone
standards. These requests were dated June 16, 2011, January 19, 2011,
and April 29, 2011, respectively. These requests, and EPA's proposed
determinations, are based upon complete, quality-assured, certified
ambient air monitoring data. These data are summarized in the tables
below, along with EPA's evaluation of whether these areas are currently
attaining the one-hour ozone and eight-hour ozone NAAQS. In addition,
EPA evaluated the data to determine whether the area attained the one-
hour ozone standard by the applicable deadline for that standard
(November 15, 2007), and whether the area met its 1997 eight-hour ozone
attainment deadline (June 15, 2010). All of the data on which EPA has
based its evaluations are also available to the public through the FOR
FURTHER INFORMATION CONTACT section and via www.epa.gov/ttn/airs/airsaqs/.
A. Data for the One-Hour Ozone Standard
For the time periods 2005-2007 through 2008-2010, Table 1 shows the
average number of expected one-hour ozone exceedances per year for each
ozone monitor in the NY-NJ-CT ozone nonattainment 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. The data for 2005-2007 show that the area did not
attain the one-hour ozone standard by the applicable attainment date of
November 15, 2007, since the area maximum expected exceedance rate is
above 1.0. The data for 2008-2010, however, show that the area is now
attaining the one-hour ozone standard, since the area maximum expected
exceedance rate is below 1.0. Preliminary data available for 2011
indicate that the area continues to attain the one-hour ozone standard.
Table 1--One-Hour Ozone Data for the NY-NJ-CT Ozone Monitors
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Monitor information Average number of expected exceedance days per year
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Monitor name,
State county AQS ID 2005-2007 2006-2008 2007-2009 2008-2010
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CT................... Greenwich, 090010017 1.3 1.3 0.3 0.3
Fairfield Co.
CT................... Danbury, Fairfield 090011123 3.0 1.3 1.0 0.0
Co.
CT................... Stratford, 090013007 1.4 1.4 0.3 0.3
Fairfield Co.
CT................... Westport, Fairfield 090019003 1.3 1.3 0.3 0.3
Co.
[[Page 3724]]
NJ................... Teaneck, Bergen Co. 340030005 * * * *
NJ................... Leonia, Bergen Co.. 340030006 * * * 0.0
NJ................... Newark-Fire House, 340130003 * * * *
Essex Co.
NJ................... Bayonne, Hudson Co. 340170006 0.3 0.0 0.0 0.0
NJ................... Flemington, 340190001 0.3 0.3 0.3 0.0
Hunterdon Co.
NJ................... Rutgers University, 340230011 1.3 0.7 0.0 0.0
Middlesex Co.
NJ................... Monmouth 340250005 0.3 0.0 0.0 0.0
University,
Monmouth Co.
NJ................... Chester, Morris Co. 340273001 0.0 0.0 0.0 0.0
NJ................... Colliers Mills, 340290006 0.7 0.0 0.0 0.0
Ocean Co.
NJ................... Ramapo, Passaic Co. 340315001 0.0 0.0 0.0 0.0
NY................... Botanical Gardens/ 360050083 * * * *
Harding Lab, Bronx
Co.
NY................... IS 52, Bronx Co.... 360050110 0.0 0.0 0.0 0.0
NY................... Botanical Gardens/ 360050133 * * 0.0 0.0
Pfizer Lab, Bronx
Co.
NY................... CCNY, New York Co.. 360610135 * * 0.0 0.0
NY................... Queens College II, 360810124 0.0 0.0 0.0 0.0
Queens Co.
NY................... Susan Wagner, 360850067 0.3 0.0 0.0 0.3
Richmond Co.
NY................... Rockland County, 360870005 * * * *
Rockland Co.
NY................... Babylon, Suffolk Co 361030002 1.4 1.0 0.0 0.4
NY................... Riverhead, Suffolk 361030004 1.4 1.7 0.7 0.7
Co.
NY................... Holtsville, Suffolk 361030009 * 1.2 0.0 0.0
Co.
NY................... White Plains, 361192004 1.7 1.8 1.4 0.4
Westchester Co.
----------------------------------------------------------------------------------------------------------------
Highest Maximum Expected Exceedance Rate for each 3-year 3.0 1.8 1.4 0.7
Period.
----------------------------------------------------------------------------------------------------------------
Source: EPA Air Quality System (AQS) Database.
* 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 adjusted for any missing data. These sites have less than 3 years worth
of data because they are either new monitors or relocated monitors, due to building closures or other access
issues. However, the monitoring network remains adequate because any actual exceedances that might have
occurred at these sites would still be included in the above table, although none occurred during the time
periods examined.
B. Data for the 1997 Eight-Hour Ozone Standard
Table 2 shows the design values (DV) by county (i.e., the 3-year
average of annual 4th highest maximum eight-hour average ozone
concentrations) for the 1997 eight-hour ozone NAAQS for the NY-NJ-CT
ozone nonattainment area monitors for the years 2007 through 2010. The
standard for the 1997 eight-hour ozone NAAQS is 0.08 ppm. A monitor
with a design value of 0.084 ppm or less is meeting the 1997 eight-hour
ozone NAAQS.
Table 2--Highest Design Values (DV) in Parts per Million (ppm) by County
for the 1997 Eight-Hour Ozone NAAQs for the NY-NJ-CT Monitors
------------------------------------------------------------------------
County 2007-2009 DV 2008-2010 DV
------------------------------------------------------------------------
NEW YORK: .............. ..............
Bronx............................... 0.073 0.072
New York............................ * 0.073
Queens.............................. 0.074 0.074
Richmond............................ 0.074 0.075
Rockland............................ * *
Suffolk............................. 0.084 0.084
Westchester......................... 0.083 0.077
NEW JERSEY: .............. ..............
Bergen.............................. * 0.076
Essex............................... * *
Hudson.............................. 0.080 0.077
Hunterdon........................... 0.081 0.078
Middlesex........................... 0.080 0.078
Monmouth............................ 0.081 0.080
Morris.............................. 0.079 0.075
Passaic............................. 0.076 0.074
CONNECTICUT:
Fairfield........................... 0.084 0.081
Middlesex........................... 0.081 0.077
New Haven........................... 0.081 0.076
Nonattainment Area (highest)........ 0.084 0.084
------------------------------------------------------------------------
* EPA calculates the design value based on 3 consecutive years of
complete (75 percent or more data capture per year) monitored data.
These sites have less than 3 years worth of data because they are
either new monitors or relocated monitors, due to building closures or
other access issues.
[[Page 3725]]
In this case, all of the monitoring sites had a design value less
than 0.085 ppm based on the 2007-2009 monitoring period, thus showing
that the area met its June 15, 2010 deadline to attain the 1997 eight-
hour ozone standards. The data in Table 2 show that the monitoring
design values remained below 0.085 through 2008-2010. Preliminary 2011
air quality data indicate the area continues to attain the 1997 eight-
hour ozone standard.
VII. Proposed Actions
For the reasons set forth in this action, EPA is proposing four
separate and independent determinations related to the NY-NJ-CT one-
hour and 1997 eight-hour ozone nonattainment areas. These
determinations are based upon complete, quality-assured and certified
ozone monitoring data. First, with respect to the one-hour ozone
standard, and pursuant to EPA's authority to ensure implementation of
one-hour ozone anti-backsliding requirements and CAA section 301, EPA
is proposing to determine that data for 2005-2007 show that the NY-NJ-
CT area previously failed to attain the one-hour standard by its
applicable November 15, 2007 attainment deadline. Second, however, EPA
is proposing to determine that the NY-NJ-CT area is currently attaining
the one-hour ozone standard, based on more recent 2008-2010 data and
preliminary data for 2011. These proposed determinations regarding the
one-hour standard, if finalized, would bear on the area's obligation
with respect to one-hour anti-backsliding requirements for section
172(c)(9) contingency measures for failure to attain and sections
182(d)(3) and 185 major stationary source fee programs.
Third, with respect to the 1997 eight-hour ozone standard, in
accordance with section 181(b) of the CAA, EPA proposes to determine
that data for 2007-2009 show the NY-NJ-CT eight-hour ozone
nonattainment area attained the 1997 eight-hour ozone standard by its
June 15, 2010 attainment deadline. Fourth, EPA is also proposing to
determine that the NY-NJ-CT eight-hour ozone nonattainment area
currently continues to attain the eight-hour ozone NAAQS, based on data
for 2008-2010 and preliminary data for 2011.
As provided in 40 CFR 51.918, if EPA's determination that the area
has attained the eight-hour ozone standard is made final, it would
suspend the requirements under section 182(b)(1) for submission of the
attainment demonstration, reasonable further progress plan, contingency
measures and any other planning SIP relating to attainment of the 1997
eight-hour NAAQS. This suspension of requirements would be effective as
long as the area continues to attain the 1997 eight-hour ozone
standard.
EPA's proposed determination that the area is currently attaining
the 1997 eight-hour ozone NAAQS is contingent upon continued monitoring
and continued attainment of that NAAQS. If the determination that the
area is currently attaining the 1997 eight-hour ozone NAAQS is
finalized and EPA subsequently determines, after notice and comment
rulemaking, that the area has subsequently violated the standard, the
basis for the suspension of obligations with respect to 1997 eight-hour
ozone attainment-related planning requirements would no longer exist,
and the area would thereafter have to address the pertinent
requirements.
It is EPA's intent to withdraw the May 8, 2009 proposed
disapprovals of Connecticut's and New Jersey's eight-hour ozone
attainment demonstrations for the NY-NJ-CT eight-hour ozone
nonattainment area, provided that EPA finalizes its determination that
the area currently attains the 1997 eight-hour ozone standard.
EPA is soliciting public comments on the issues discussed in this
action. EPA will consider these comments before taking final action.
Interested parties may participate in the Federal rulemaking procedure
by submitting written comments to EPA as discussed in the ADDRESSES
section of this Federal Register.
VIII. Statutory and Executive Order Reviews
These actions include proposals to make attainment determinations
based on air quality, and would if finalized, result in the suspension
of certain Federal requirements, would not impose additional
requirements beyond those imposed by state law, or would not impose any
requirements beyond those required by Federal statute.
For these reasons, these proposed actions:
Are 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);
Do not impose an information collection burden under the
provisions 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 an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not a significant regulatory action 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, 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen oxides,
Ozone, Volatile organic compounds, Intergovernmental relations,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 8, 2011.
Judith A. Enck,
Regional Administrator, Region 2.
Dated: January 11, 2012.
H. Curtis Spalding,
Regional Administrator, Region 1.
[FR Doc. 2012-1518 Filed 1-24-12; 8:45 am]
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