[Federal Register Volume 61, Number 215 (Tuesday, November 5, 1996)]
[Rules and Regulations]
[Pages 56897-56900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28197]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region 2 Docket NJ24-1a-158; FRL-5643-2]
Clean Air Act Attainment Extension for the New York-Northern New
Jersey-Long Island Consolidated Metropolitan Statistical Carbon
Monoxide Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This action grants a one (1) year attainment date extension
for the New York-Northern New Jersey-Long Island Consolidated
Metropolitan Statistical Carbon Monoxide nonattainment area (NYCMSA)
which also includes parts of two counties in southwestern Connecticut.
The NYCMSA failed to attain the National Ambient Air Quality Standard
(NAAQS) for carbon monoxide (CO) by the December 31, 1995 deadline
contained in the Clean Air Act as amended in 1990 (CAA). However,
section 186(a)(4) of the CAA provides for a one year extension of the
CO attainment date if specific requirements are met. Since the NYCMSA
has met these requirements, EPA is granting the one year extension.
[[Page 56898]]
DATES: This action is effective on January 6, 1997,unless adverse or
critical comments are received by December 5, 1996.If this action is
withdrawn prior to the effective date, timely notice withdrawing this
action will be published in the Federal Register.
ADDRESSES: All comments should be addressed to: Ronald J. Borsellino,
Chief, Air Programs Branch, Environmental Protection Agency, Region II
Office, 290 Broadway, 25th Floor, New York, New York, 10007-1866.
Copies of the States' requests and relevant documents are available
at the following locations for inspection during normal business hours:
Environmental Protection Agency, Region II Office, Air Programs Branch,
290 Broadway, 25th floor, New York, New York 10007-1866.
Environmental Protection Agency, Region I Office, Air Quality Planning
Unit, One Congress Street, 11th floor, Boston, Massachusetts 02203.
Environmental Protection Agency, Air and Radiation Docket and
Information Center, Air Docket (6102), 401 M Street, SW., Washington,
DC 20460.
FOR FURTHER INFORMATION CONTACT: Henry Feingersh, Air Programs Branch,
Environmental Protection Agency, Region II Office, 290 Broadway, 25th
floor, New York, New York 10007-1866, (212) 637-4249, or
Wing Chau, Air Quality Planning Unit, Environmental Protection
Agency, Region I Office, One Congress Street, 11th floor, Boston,
Massachusetts 02203, (617) 565-3570.
SUPPLEMENTARY INFORMATION:
I. Background
A. CAA Requirements and EPA Actions Concerning Designation and
Classification
The CAA created a new classification structure for CO nonattainment
areas which was based on the severity of the nonattainment problem. For
moderate CO nonattainment areas with a design value between 9.1-16.4
parts per million (ppm), the attainment date was to be as expeditious
as practicable but no later than December 31, 1995.
The air quality planning requirements for moderate CO nonattainment
areas are set out in sections 186 and 187 of the CAA which pertain to
the classification of CO nonattainment areas and submission of SIP
requirements for these areas, respectively. EPA issued a ``General
Preamble'' which stated EPA's preliminary views concerning how EPA
intended to review SIPs and SIP revisions submitted as required under
Title I of the Act, [see generally 57 FR 13489 (April 16, 1992) and 57
FR 18070 (April 28, 1992)]. States containing CO moderate nonattainment
areas with design values of 9.1-16.4 ppm were required to submit SIPs
for these areas on or before November 15, 1992 which would provide for
attainment by December 31, 1995.
B. Attainment Determinations
EPA has the responsibility for determining whether a nonattainment
area has attained the CO NAAQS by the applicable attainment date, [see
sections 179(c) and 186(b)(2) of the CAA]. EPA also has the
responsibility of making attainment determinations for moderate CO
nonattainment areas by no later than six (6) months after the December
31, 1995 attainment date for these areas. EPA bases the attainment
determinations for CO on whether an area has eight consecutive quarters
(two years) of clean air quality data. No special or additional SIP
submittal is required from the area for this determination. Section
179(c)(1) of the CAA provides that the attainment determination is to
be based on an area's ``air quality as of the attainment date.''
A CO nonattainment area's air quality status is determined in
accordance with 40 CFR 50.8, and in accordance with EPA policy as
stated in a memorandum from William G. Laxton, Director Technical
Support Division, entitled ``Ozone and Carbon Monoxide Design Value
Calculations,'' June 18, 1990. Compliance with the NAAQS is discussed
in terms of the eight-hour CO NAAQS, rather than the one-hour NAAQS,
because the eight-hour NAAQS is typically the standard of concern. For
this nonattainment area, the one-hour CO NAAQS was not exceeded in 1994
or 1995. For determining compliance with the eight-hour CO NAAQS, the
maximum and second maximum (non-overlapping) eight-hour values at a
site for the most recent two years of data are examined. The highest
observed second maximum is used to determine compliance for that site.
The eight-hour CO NAAQS is violated when the second maximum exceeds the
9 ppm standard (greater than or equal to 9.5 ppm to adjust for
rounding, as in 40 CFR 50.8(d)), in either of the two most recent years
of data. If all monitors in a nonattainment area have eight-hour second
maximum values less than 9.5 for the previous eight quarters or a total
of two consecutive and complete years of data, the CO NAAQS is met. If
any monitoring site in an area has a second maximum value greater than
or equal to 9.5 ppm, the area has violated the CO NAAQS.
C. Application for a One-year Extension of the Attainment Date
If the area does not have the two consecutive clean years of data
to show attainment of the CO NAAQS, an area may apply for an extension
of the attainment date. Pursuant to section 186(a)(4) of the Act, an
area may apply for and EPA may grant a one-year extension of the
attainment date if the area has: (1) complied with the requirements and
commitments pertaining to the applicable implementation plan for the
area, and (2) the area has measured no more than one exceedance of the
CO NAAQS at any monitoring site in the nonattainment area in the year
preceding the extension year. If the area does not have the requisite
number of years of clean air quality data to show attainment and does
not apply or does not qualify for an attainment date extension, the
area will be reclassified as serious by operation of law.
Section 186(a)(4) of the CAA providing for the extension of
attainment dates for areas that meet the above minimum requirements has
been delegated to the Regional Administrators. This provision does not
dictate or compel that EPA grant extensions to such areas. In
exercising this discretionary authority for CO nonattainment areas, EPA
will examine the air quality planning progress made in the moderate
area. EPA will be disinclined to grant an attainment date extension
unless an area had, in substantial part, addressed its moderate CO
planning obligations. In order to determine whether the area has
substantially met these planning requirements, EPA will review the
area's application for the attainment date extension to determine
whether the area has: (1) adopted and substantially implemented control
measures to satisfy the requirement for the moderate CO nonattainment
area; and (2) that reasonable further progress is being met for the
area.
If the area cannot make a sufficient demonstration that it has
complied with the extension criteria stated above, and EPA determines
that the area has not made a timely demonstration of attainment of the
CO NAAQS, the area will be reclassified as serious by operation of law
pursuant to section 186(b)(2) of the Act. If an extension is granted,
EPA will again review the area's air quality data at the end of the
extension year to determine whether the area has attained the CO NAAQS.
[[Page 56899]]
II. Extension Request
On April 24, 1996, New Jersey submitted to EPA a request for a one-
year extension of the NYCMSA CO nonattainment area. New York and
Connecticut submitted letters to EPA on July 31, 1996 and June 27,
1996, respectively, concurring with New Jersey's request. The
nonattainment area is composed of a number of counties in New York, New
Jersey, and Connecticut. These counties include Bronx County, Kings
County, Nassau County, New York County, Queens County, Richmond County,
and Westchester County in New York, part of Fairfield County (all
cities and townships except Shelton City) and part of Litchfield County
(Bridgewater Town and New Milford Town) in Connecticut, Bergen County,
Essex County, Hudson County, Union County, and the Passaic County
municipalities of Clifton, Passaic and Patterson in New Jersey. As
required by the CAA, this request was based on air quality data from
the two years (1994 and 1995) prior to the December 31, 1995 attainment
date.
A. Air Quality Data
Pursuant to section 186(a)(4)(B) of the Act, an area must have no
more than one exceedance of the CO NAAQS in the year proceeding the
extension year at any one monitoring site in the nonattainment area.
The NYCMSA nonattainment area has one CO Special Purpose Monitoring
(SPM) site, five National Air Monitoring System Sites (NAMS), and nine
State and Local Air Monitoring Sites (SLAMS). Sampling at these sites
is conducted every day. Data from these sites was submitted by each of
the States in the CMSA for inclusion in EPA's air quality data system,
AIRS and was deemed valid by EPA.
A review of the data for calendar years 1994 and 1995 for the
NYCMSA CO nonattainment area shows violations of the eight hour NAAQS
occurred at two separate monitoring stations in 1994. As discussed
previously in this document, a violation is defined as more than one
exceedance of the NAAQS occurring at the same site during a calendar
year. Exceedances occurred at the monitoring site in North Bergen, NJ,
on February 19 (11.6 ppm), December 4 (10.7 ), and December 22 (10.1 ),
therefore, resulting in a violation of the NAAQS. In addition, on two
separate and non-overlapping eight hour periods on February 19 (12.0
ppm and 11.3 ppm), concentrations exceeded the NAAQS at the Elizabeth,
NJ monitoring site. Thus the CO standard was violated here also.
In 1995, the North Bergen, NJ monitoring site and the Flatbush
Avenue, NY monitoring site each recorded one exceedance. However, since
neither of these sites had two exceedances, there were no violations of
the CO NAAQS. Therefore, the area has met the air quality requirements
for a one year extension of the attainment date.
B. Compliance with Applicable SIP
Pursuant to section 186(a)(4)(A) of the Act, an area must
demonstrate that it has complied with all requirements and commitments
pertaining to the affected nonattainment area in the applicable
implementation plan. The States of New York, New Jersey, and
Connecticut are in compliance with the requirements and commitments of
each States' CO SIPs, (see 61 FR 38594, 61 FR 38591, and 61 FR 38574).
C. Substantial Implementation of Control Measures
The States of New York, New Jersey, and Connecticut have developed
and implemented substantial control measures for CO in the NYCMSA
nonattainment area. These control measures consist of the Federal
emission controls required for new vehicles, oxygenated fuels programs,
and inspection and maintenance (I/M) programs. The National Highway
System Designation Act of 1995 has given states additional time and
flexibility in the development of enhanced I/M programs. Therefore, New
York and New Jersey are currently amending their SIPs regarding their
enhanced I/M programs.
D. Emission Reduction Progress
The historical trend in the NYCMSA's air quality has been toward
lower CO levels. CO concentrations have decreased from a second-high
eight-hour average of 15.8 ppm and 186 exceedances in 1981, to a
second-high eight-hour average of 8.1 ppm and two exceedances (at
separate sites) in 1995. The continued improvement in CO concentrations
in the NYCMSA has been achieved mainly by emission reductions resulting
from turnover of the vehicle fleet, required vehicle repairs and
maintenance under the existing I/M programs, and the mandatory
wintertime use of oxygenated fuels. These control measures and emission
reductions are permanent and enforceable.
The enhancement of existing I/M programs and the continued
implementation of oxygenated fuels programs, combined with the Federal
Motor Vehicle Control Program is expected to result in further
decreases in CO emissions and ambient concentrations in the NYCMSA.
Based on the above, EPA believes that reasonable further progress (RFP)
toward attainment of the CO NAAQS has been demonstrated.
III. Summary
EPA is, by today's action, granting New Jersey's request for a one-
year extension of the CO attainment date for the NYCMSA. EPA had
received letters of concurrence on New Jersey's extension request from
New York and Connecticut. Although the CMSA area failed to meet the
December 31, 1995 CO attainment date, the CMSA has shown the progress
requisite to the extension authorized by section 186(a)(4) of the Act.
This action extends the attainment date from December 31, 1995, to
December 31, 1996 for the entire NYCMSA.
EPA has reviewed this request for a one-year extension of the CO
attainment date for the NYCMSA nonattainment area for conformance with
the CAA enacted on November 15, 1990. EPA has determined that this
action conforms with those requirements. EPA is publishing this action
without a prior proposal because the Agency views this as a
noncontroversial action and anticipates no adverse comments. However,
in a separate document in this Federal Register publication, EPA is
proposing to approve this attainment date extension should adverse or
critical comments be filed. This final action will be effective January
6, 1997, unless, by December 5, 1996, adverse or critical comments are
received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent document that will
withdraw the final action before its effective date. All public
comments received will be addressed in a subsequent final rule based on
this action serving as a proposed rule. EPA will not institute a second
comment period on this action. Any parties interested in commenting on
this action should do so at this time. If no such comments are
received, the public is advised that this action will be effective
January 6, 1997.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP will be
considered separately in light of specific technical, economic and
environmental factors and in relation to relevant statutory and
regulatory requirements.
[[Page 56900]]
IV. Administrative Requirements
Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. See 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
Attainment date extensions under section 186, as with SIP approvals
under section 110 and subchapter I, part D of the Act, do not create
any new requirements. Therefore, because the granting of the NYCMSA
one-year CO attainment date extension does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities. Moreover, due to the nature of the Federal-state
relationship under the Act, preparation of a regulatory flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The CAA forbids EPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. E.P.A., 427 U.S.
246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to the private sector, of $100 million or more. Under section 205,
EPA must select the most cost-effective and least burdensome
alternative that achieves the objectives of the rule and is consistent
with statutory requirements. Section 203 requires EPA to establish a
plan for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that an attainment date extension does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. A finding than an area should
be granted a one-year extension of the attainment date consists of
factual determinations based on air quality considerations and the
areas's compliance with certain prior requirements, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 6, 1997. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule 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), 42 U.S.C. 7607(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Reporting and recordkeeping requirements.
Dated: October 15, 1996.
William J. Muszynski,
Deputy Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart H--Connecticut
2. Section 52.372 is added to read as follows:
Sec. 52.372 Extensions.
Pursuant to section 186(a)(4) of the Clean Air Act, as amended in
1990, the Regional Administrator hereby extend for one year (until
December 31, 1996) the attainment date for the New York-Northern New
Jersey-Long Island Consolidated Metropolitan Statistical Carbon
Monoxide nonattainment area.
Subpart FF--New Jersey
3. Section 52.1572 is added to read as follows:
Sec. 52.1572 Extensions.
Pursuant to section 186(a)(4) of the Clean Air Act, as amended in
1990, the Regional Administrator hereby extends for one year (until
December 31, 1996) the attainment date for the New York-Northern New
Jersey-Long Island Consolidated Metropolitan Statistical Carbon
Monoxide nonattainment area.
Subpart HH--New York
4. Section 52.1672 is added to read as follows:
Sec. 52.1672 Extensions.
Pursuant to section 186(a)(4) of the Clean Air Act, as amended in
1990, the Regional Administrator hereby extends for one year (until
December 31, 1996) the attainment date for the New York-Northern New
Jersey-Long Island Consolidated Metropolitan Statistical Carbon
Monoxide nonattainment area.
[FR Doc. 96-28197 Filed 11-4-96; 8:45 am]
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