2010-18885. Approval and Promulgation of Air Quality Implementation Plans; New York, New Jersey, and Connecticut; Determination of Attainment of the 1997 Fine Particle Standard

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to determine that the New York-N. New Jersey-Long Island, NY-NJ-CT fine particle (PM_2.5) nonattainment area has attained the 1997 annual fine particle National Ambient Air Quality Standard (NAAQS). This proposed determination is based upon quality assured, quality controlled, and certified ambient air monitoring data that shows the area has monitored attainment of the 1997 annual PM_2.5 NAAQS for the 2007-2009 monitoring period. If this proposed determination is made final, the requirements for this area to submit an attainment demonstration, reasonably available control measures, reasonable further progress plan, and contingency measures related to attainment of the 1997 PM_2.5 NAAQS shall be suspended for so long as the area continues to attain the 1997 annual PM_2.5 NAAQS.

DATES:

Comments must be received on or before September 1, 2010.

ADDRESSES:

Submit your comments, identified by Docket ID number EPA-R02-OAR-2009-0659, by one of the following methods:

• www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• 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-2009-0659. 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 e-mail. 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 e-mail comment directly to EPA without going through www.regulations.gov your e-mail 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.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Region II Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. EPA requests, if at all possible, that you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions concerning today's proposed action related to New York or New Jersey, please contact Henry Feingersh, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, telephone number [phone], fax number [phone], e-mail [e-mail].

If you have questions concerning today's proposed action related to Connecticut, please contact Alison C. Simcox, 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 [phone], fax number [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

For detailed information regarding this proposal, EPA prepared a Technical Support Document (TSD). The TSD can be viewed at http://www.regulations.gov.

The following table of contents describes the format of this notice:

I. What Action Is EPA Proposing?

II. What Is the Effect of This Action?

III. What Is the Background for This Action?

IV. What Is EPA's Analysis of the Relevant Air Quality Data?

V. How Did EPA Address Missing Data?

VI. Proposed Action

VII. Statutory and Executive Order Reviews

I. What Action Is EPA Proposing?

EPA is proposing to determine that the New York-N. New Jersey-Long Island, NY-NJ-CT PM_2.5 nonattainment area, referred to from this point forward as the NY-NJ-CT PM_2.5 nonattainment area, has attained the 1997 annual PM_2.5 NAAQS. This proposed determination is based upon quality-assured, quality-controlled, and certified ambient air monitoring data that show that the area has monitored attainment of the 1997 annual PM_2.5 NAAQS for the 2007-2009 monitoring period. The New York portion of the NY-NJ-CT PM_2.5 nonattainment area contains the counties of Bronx, Kings, Nassau, New York, Orange, Queens, Richmond, Rockland,^[1] Suffolk, and Westchester. The New Jersey portion of the NY-NJ-CT PM_2.5 nonattainment area contains the counties of Bergen, Essex, Hudson, Mercer, Middlesex, Monmouth, Morris, Passaic, Somerset, and Union. The Connecticut portion of the NY-NJ-CT PM_2.5 nonattainment area includes the counties of Fairfield and New Haven.

II. What Is the Effect of This Action?

If this determination is made final, under the provisions of EPA's PM_2.5 implementation rule (see 40 CFR 51.1004(c)), the requirements for the NY-NJ-CT PM_2.5 nonattainment area to submit an attainment demonstration, reasonably available control measures, reasonable further progress plan, and contingency measures related to attainment of the 1997 annual PM_2.5 NAAQS will be suspended for so long as the area continues to attain the 1997 annual PM_2.5 NAAQS.^[2]

As further discussed below, the proposed determination, if finalized, would: (1) Suspend the requirements for the NY-NJ-CT PM_2.5 nonattainment area to submit an attainment demonstration, reasonably available control measures, reasonable further progress plan, and contingency measures related to attainment of the 1997 PM_2.5 NAAQS; (2) continue until such time, if any, that EPA subsequently determines that the area has violated the 1997 annual PM_2.5 NAAQS; (3) be separate from the designation determination or requirements for the NY-NJ-CT PM_2.5 nonattainment area based on the 2006 PM_2.5 NAAQS; and (4) remain in effect regardless of EPA's designation of this area as a nonattainment area for purposes of the 2006 PM_2.5 NAAQS. Furthermore, as described below, any such final determination would not be equivalent to the redesignation of the area to attainment based on the 1997 PM_2.5 NAAQS.

If this rulemaking is finalized and EPA subsequently determines, after notice-and-comment rulemaking in the Federal Register, that the area has violated the 1997 annual PM_2.5 NAAQS, the basis for the suspension of the specific requirements, set forth at 40 CFR 51.1004(c), would no longer exist, and the area would thereafter have to address the pertinent requirements.

The determination that EPA proposes with this Federal Register action, that the air quality data shows attainment of the 1997 annual PM_2.5 NAAQS, is not equivalent to the redesignation of the area to attainment. This proposed action, if finalized, would not constitute a redesignation to attainment under section 107(d)(3) of the Clean Air Act (CAA), because we would not yet have approved a maintenance plan for the area as required under section 175A of the CAA, nor a determination that the area has met the other requirements for redesignation. The designation status of the area would remain nonattainment for the 1997 annual PM_2.5 NAAQS until such time as EPA determines that it meets the CAA requirements for redesignation to attainment.

This proposed action, if finalized, is limited to a determination that the NY-NJ-CT PM_2.5 nonattainment area has attained the 1997 annual PM_2.5 NAAQS. The 1997 PM_2.5 NAAQS became effective on September 16, 1997 (62 FR 38652, July 18, 1997) and are set forth at 40 CFR 50.7. The 2006 PM_2.5 NAAQS became effective on December 18, 2006 (71 FR 61144, Oct. 17, 2006) and are set forth at 40 CFR 50.13.^[3] Effective December 14, 2009, EPA made designation determinations, as required by CAA section 107(d)(1), for the 2006 PM_2.5 NAAQS (74 FR 58688, Nov. 13, 2009). Of relevance to the proposed rulemaking herein, in 74 FR 58688 EPA clarified the designations for the 1997 PM_2.5 NAAQS by relabeling the existing designation tables to identify designations for the annual 1997 PM_2.5 NAAQS (i.e., 15.0 µg/m³) and the 1997 24-hour PM_2.5 NAAQS (i.e., 65 µg/m³).

This proposed determination that the NY-NJ-CT PM_2.5 nonattainment area has attained the annual 1997 PM_2.5 NAAQS, and any final determination, will have no effect on, and is not related to, the designation determination that EPA has made based on the 2006 PM_2.5 NAAQS. Conversely, the designation based on the 2006 PM_2.5 NAAQS, will not have any effect on the determination proposed by this action.

If this proposed determination is made final and the NY-NJ-CT PM_2.5 nonattainment area continues to monitor attainment of the 1997 annual PM_2.5 NAAQS, the requirements for the area to submit attainment demonstrations, reasonably available control measures, reasonable further progress plans, and contingency measures related to attainment of the 1997 PM_2.5 NAAQS would remain suspended, even though EPA designated this area as a nonattainment area for purposes of the 2006 PM_2.5 NAAQS. Areas designated for the 2006 NAAQS will have to meet all applicable requirements for that designation.

III. What Is the Background for This Action?

On July 18, 1997 (62 FR 38652), EPA established a health-based PM_2.5 NAAQS at 15.0 micrograms per cubic meter (μg/m³) based on a 3-year average of annual mean PM_2.5 concentrations, and a 24-hour standard of 65 μg/m³ based on a 3-year average of the 98th percentile of 24-hour concentrations. EPA established the standards based on significant evidence and numerous health studies demonstrating that serious health effects are associated with exposures to particulate matter. The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the CAA. EPA and state air quality agencies initiated the monitoring process for the 1997 PM_2.5 NAAQS in 1999, and developed all air quality monitors by January 2001. On January 5, 2005, (70 FR 944), EPA published its air quality designations and classifications for the 1997 PM_2.5 NAAQS based upon air quality monitoring data from those monitors for calendar years 2001-2003. These designations became effective on April 5, 2005.

On November 13, 2009, EPA clarified the designations for the 1997 PM_2.5 NAAQS (74 FR 58688), stating that the NY-NJ-CT PM_2.5 nonattainment area is designated nonattainment for the 1997 annual PM_2.5 NAAQS, and attainment/unclassifiable for the 1997 24-hour PM_2.5 NAAQS (see 40 CFR part 81.333). This proposed determination addresses the 1997 annual standard only. On April 25, 2007 (72 FR 20664), EPA promulgated its PM_2.5 implementation rule, codified at 40 CFR part 51, subpart Z, in which the Agency provided guidance for state and tribal plans to implement the 1997 PM_2.5 standard. This rule, at 40 CFR 51.1004(c), specifies some of the regulatory consequences of a determination of attainment of the standard.

IV. What Is EPA's Analysis of the Relevant Air Quality Data?

EPA has reviewed the ambient air monitoring data for PM_2.5, consistent with the requirements contained in 40 CFR part 50 and recorded in the EPA Air Quality System database for the NY-NJ-CT PM_2.5 nonattainment area from 2001 through the present time.

On the basis of that review, EPA has concluded that this area has attained the 1997 annual PM_2.5 NAAQS based on data for the 2007-2009 monitoring period.

Under EPA regulations at 40 CFR 50.7: The annual primary and secondary PM_2.5 standards are met when the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50, Appendix N, is less than or equal to 15.0 μg/m³.

Table 1 shows the design values by county (i.e., the 3-year average of annual mean PM_2.5 concentrations) for the 1997 annual PM_2.5 NAAQS for the NY-NJ-CT PM_2.5 nonattainment area monitors for the years 2001 through 2009.

Table 1—Design Values by County for the 1997 Annual PM_2.5 NAAQS for the NY-NJ-CT Monitors in Micrograms per Cubic Meter (μg/m³). The Standard for the 1997 Annual PM_2.5 NAAQS is 15.0 μg/m³

County	01-03 DV	02-04 DV	03-05 DV	04-06 DV	05-07 DV	06-08 DV	07-09 DV
Bronx	15.7	15.2	15.7	15.1	15.5	14.3	13.9
Kings	14.7	14.2	14.6	14.0	14.0	12.9	12.2
Nassau	12.2	11.7	12.1	11.5	11.4	10.9	10.3
New York 4	17.5	16.7	17.0	15.7	15.9	14.9	14.0
Orange	11.5	11.1	11.4	10.8	10.8	10.0	9.3
Queens	INC	12.8	12.7	12.1	11.8	11.3	10.6
Richmond	12.0	11.5	11.8	13.4	13.2	12.4	11.6
Rockland	NM	NM	NM	NM	NM	NM	NM
Suffolk	12.1	11.3	11.5	INC	INC	10.5	9.7
Westchester	12.3	11.7	11.9	11.6	11.7	11.2	10.6
Bergen	INC	12.8	13.3	12.8	13.2	12.2	11.3
Essex 5	INC	13.5	INC	13.2	13.3	INC	INC
Hudson	14.7	14.3	14.7	14.1	14.0	14.1	13.1
Mercer	13.8	13.0	13.0	12.7	12.5	11.9	10.8
Middlesex	12.4	11.8	12.5	11.8	12.1	11.3	10.4
Monmouth	NM	NM	NM	NM	NM	NM	NM
Morris	INC	11.6	11.9	11.2	11.3	10.3	9.6
Passaic	INC	12.9	13.1	12.6	12.9	12.3	11.3
Somerset	NM	NM	NM	NM	NM	NM	NM
Union	15.5	15.3	15.5	14.8	14.4	13.6	12.6
Fairfield	13.1	12.7	13.3	13.2	13.2	12.4	11.3
New Haven	13.9	13.4	13.5	13.0	12.8	12.2	11.4
NM—No monitor located in county.
INC—All counties listed as INC for time period did not meet 75 percent data completeness requirement, and had not previously shown violations of the NAAQS from years 2001-2003 to present.

EPA's review of these data indicates that the NY-NJ-CT PM_2.5 nonattainment area has met and continues to meet the 1997 annual PM_2.5 NAAQS. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

V. How did EPA address missing data?

Data handling conventions and computations necessary for determining whether areas have met the PM_2.5 NAAQS, including requirements for data completeness, are listed in Appendix N of 40 CFR part 50. A year meets data completeness requirements when at least 75 percent of the scheduled sampling days for each quarter have valid data. The use of less than complete data is subject to the approval of EPA, which may consider factors such as monitoring site closures/moves, monitoring diligence, and nearby concentrations in determining whether to use such data as set forth at 40 CFR part 50, Appendix N, section 4.1(c).

The building on which the design value monitor (PS 59) for the NY-NJ-CT PM_2.5 nonattainment area was located was demolished midway through 2008. This was a planned shutdown and although New York could have shut it down at the beginning of the year, the state chose to continue it as long as possible to collect data. Unfortunately, the monitor at this location can not be replaced, because the roof of the new building is too far above sidewalk level to serve as a valid monitoring site under 40 CFR part 86 appendix E. NY and EPA tried but could not locate a suitable replacement monitoring site in the immediate vicinity of PS 59 that would also meet siting criteria.

A method was developed, therefore, to use less than complete data to determine if the design value monitor would be in attainment if it had continued to operate. The approach summarized in this section, and further described in the TSD, may or may not be appropriate for other areas with less than complete data. EPA will evaluate the appropriateness of this analytical approach for each area with less than complete data on a case-by-case basis.

Monitoring Network

EPA has determined that the PM_2.5 monitoring network for the NY-NJ-CT PM_2.5 nonattainment area is adequate. First, the number of monitors in the area far exceeds the minimum regulatory requirements. While three monitors are required in the nonattainment area, the area currently has 39 monitoring locations. The States of New York, New Jersey, and Connecticut have been very diligent in the number and placement of PM_2.5 monitors in the nonattainment area. Secondly, EPA meets annually with each state to discuss any problems or issues concerning the State's air monitoring data and/or network. In addition, EPA and the States communicate many times during the year so that issues can be addressed as they show up. Thirdly, EPA regulations require states to submit annual network plans to their respective Regions. These plans outline the current networks and any proposed changes in the upcoming 18 months. Regions 1 and 2 have always been able to approve these plans due to the high quality of the New York, New Jersey and Connecticut monitoring networks. Copies of the approved annual network review letters can be seen in the TSD.

Methodology

The method used to determine the design value for PS 59 involves establishing a linear relationship between PS 59 and another site in the NY-NJ-CT PM_2.5 nonattainment area that has more complete data for the missing period and has a substantial number of samples in common over the period of interest. The monitor in the nonattainment area that had the highest correlation with PS 59 was used to develop a regression equation. The regression equation was used to estimate values for the missing quarters of data for PS 59. The design value for PS 59 was then calculated using the estimated values to fill in for the missing quarters. The estimated design value was then analyzed using a bootstrapping statistical method. Bootstrapping involves the use of regression residuals and repeating the regression analysis 1,000 times. There were no exceedances of the NAAQS as a result of the bootstrapping analysis. The result of the analysis determined that the 2007-2009 design value for the NY-NJ-CT PM_2.5 nonattainment area would be 14.0 µg/m³.

VI. Proposed Action

EPA is proposing to determine that the NY-NJ-CT PM_2.5 nonattainment area for the 1997 annual PM_2.5 NAAQS has attained the 1997 PM_2.5 NAAQS and continues to attain the standard based on data through 2009. As provided in 40 CFR 51.1004(c), if EPA finalizes this determination, it would suspend the requirements for this area to submit attainment demonstrations, reasonably available control measures, reasonable further progress plans, and contingency measures related to attainment of the 1997 annual PM_2.5 NAAQS so long as the area continues to attain the 1997 annual PM_2.5 NAAQS.

VII. Statutory and Executive Order Reviews

This action proposes to make a determination based on air quality data, and would, if finalized, result in the suspension of certain Federal requirements. For that reason, this proposed action:

Is 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);

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 in Executive Order 13132 (64 FR 43255, August 10, 1999);

Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

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 CAA; and

Does 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
• Particulate matter
• Reporting and recordkeeping requirements

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

Dated: July 22, 2010.

H. Curtis Spalding,

Regional Administrator, Region 1.

Dated: June 28, 2010.

Judith A. Enck,

Regional Administrator, Region 2.

Footnotes

1.  On July 7, 2009, the United States Court of Appeals for the DC Circuit rendered its decisions in the PM_2.5 Designations Litigation, Catawba County, NC v. EPA, 571 F.3d 20 (DC Cir. 2009). The Court denied all of the petitions for review except Rockland County, New York and remanded the designation of Rockland County to EPA for further explanation of its designation.

2.  New York, New Jersey, and Connecticut submitted their attainment demonstrations, reasonably available control measures, reasonable further progress plan and contingency measures SIP for this area on October 27, 2009, April 1, 2009, and November 18, 2008, respectively. EPA has not yet taken action on these submittals.

3.  In response to legal challenges against the annual standard promulgated in 2006, the U.S. Court of Appeals for the District of Columbia remanded this standard to EPA for further consideration. (See American Farm Bureau Federation and National Pork Producers Council, et al. v. EPA, 559 F.3d 512 (DC. Cir. 2009).) However, given that the 1997 and 2006 annual standards are essentially identical, attainment of the 1997 annual standard would also signify attainment of the remanded 2006 annual standard.

4.  The monitor in New York County located at Public School 59 (PS 59) was the highest reading monitor at the time EPA made designations for the 1997 PM_2.5 NAAQS on January 5, 2005. Midway through 2008, the monitor at PS 59 was shut down due to the demolition of the building site. Therefore, the data up until 2008 was from PS 59. Missing 2008 data had an effect on calculating the design value for the annual standard. EPA developed an alternative procedure to determine the design value for the annual standard. This procedure used data representative of PS 59 based on EPA's statistical analysis. A description of the alternate procedure can be found in Section V. Detailed information on this alternative procedure can be found in the Technical Support Document.

5.  The air monitor at the Newark Willis Center station in Essex County was discontinued on July 24, 2008 due to an unexpected loss of access, and replaced with a new monitor at the Newark Firehouse. PM_2.5 monitoring was established at the firehouse on May 13, 2009. Since three years of data was not collected at either monitoring site for 2006-08, and 2007-09, Essex County is listed as INC for the most recent three year periods.