2012-31214. Approval and Promulgation of Air Quality Implementation Plans; New York, New Jersey, and Connecticut; Determination of Attainment of the 2006 Fine Particle Standard

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is determining that the New York-N. New Jersey-Long Island, NY-NJ-CT fine particle (PM_2.5) nonattainment area for the 2006 24-hour PM_2.5 National Ambient Air Quality Standard (NAAQS) has attained the 2006 24-hour PM_2.5 NAAQS. The determination of attainment will suspend the requirements for the New York-N. New Jersey-Long Island, NY-NJ-CT PM_2.5 nonattainment area to submit an attainment demonstration, associated reasonably available control measures, reasonable further progress, contingency measures, and other planning state implementation plans (SIPs) related to attainment of the 2006 24-hour PM_2.5 NAAQS for so long as the area continues to attain the 2006 24-hour PM_2.5 NAAQS.

DATES:

Effective Date: This rule is effective on December 31, 2012.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2012-0504. All documents in the docket are listed in the http://www.regulations.gov web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Programs Branch, U.S. Environmental Protection Agency, Region II, 290 Broadway, New York, New York 10007.

FOR FURTHER INFORMATION CONTACT:

Gavin Lau, [phone], or by email at [e-mail] if you have questions related to New York or New Jersey. If you have questions related to Connecticut, please contact Alison C. Simcox, [phone], or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

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

The SUPPLEMENTARY INFORMATION section is arranged as follows:

I. What action Is EPA taking?

II. What is the background for EPA's action?

III. What comments did EPA receive on its proposal and what is EPA's response?

IV. What Is the effect of this action?

V. What is EPA's final action?

VI. Statutory and executive order reviews

I. What action Is EPA taking?

EPA is determining that the New York-N. New Jersey-Long Island, NY-NJ-CT fine particle (PM_2.5) nonattainment area for the 2006 24-hour PM_2.5 NAAQS, referred to from this point forward as the NY-NJ-CT PM_2.5 nonattainment area, has attained the 2006 24-hour PM_2.5 NAAQS. This determination is based upon quality-assured, quality-controlled and certified ambient air monitoring data that show the area has monitored attainment of the 2006 24-hour PM_2.5 NAAQS for the 2007-2009, 2008-2010, and 2009-2011 monitoring periods. Specific details regarding the determination and the rationale for EPA's action are explained in the proposed rulemaking published in the Federal Register (FR) on August 30, 2012 (77 FR 52626).

II. What is the background for EPA's action?

EPA's determination is being made in accordance with its longstanding interpretation under the Clean Data Policy, and with previously issued rules and determinations of attainment. A brief description of the Clean Data Policy with respect to the 2006 PM_2.5 standard is set forth below. In addition, the docket for this rulemaking includes documentation providing more detail regarding the application of EPA's Clean Data Policy to determinations of attainment for the 2006 PM_2.5 NAAQS.

In April 2007, EPA issued its PM_2.5 Implementation Rule for the 1997 PM_2.5 standard. 72 FR 20586; (April 25, 2007). In March, 2012, EPA published implementation guidance for the 2006 PM_2.5 standard. See Memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, “Implementation Guidance for the 2006 24-Hour Final Particle (PM_2.5) National Ambient Air Quality Standards (NAAQS)” (March 2, 2012). In that guidance, EPA stated its view “that the overall framework and policy approach of the 2007 PM_2.5 Implementation Rule continues to provide effective and appropriate guidance on the EPA's interpretation of the general statutory requirements that states should address in their SIPs. In general, the EPA believes that the interpretations of the statute in the framework of the 2007 PM_2.5 Implementation Rule are relevant to the statutory requirements for the 2006 24-hour PM_2.5 NAAQS * * *” Id., page 1. With respect to the statutory provisions applicable to 2006 PM_2.5 implementation, the guidance emphasized that “EPA outlined its interpretation of many of these provisions in the 2007 PM_2.5 Implementation Rule. In addition to regulatory provisions, the EPA provided substantial general guidance for attainment plans for PM_2.5 in the preamble to the final the [sic] 2007 PM_2.5 Implementation Rule.” Id., page 2. In keeping with the principles set forth in the guidance, and with respect to the effect of a determination of attainment for the 2006 PM_2.5 standard, EPA is applying the same interpretation here with respect to the implications of clean data determinations that it set forth in the preamble to the 1997 PM_2.5 standard and in the regulation that embodies this interpretation. 40 CFR 51.1004(c).^[1] EPA has long applied this interpretation in regulations and individual rulemakings for the 1-hour ozone and 1997 8-hour ozone standards, the PM-10 standard, and the lead standard.

In 1995, based on the interpretation of Clean Air Act (CAA) sections 171 and 172, and section 182 in the General Preamble, EPA set forth what has become known as its “Clean Data Policy” for the 1-hour ozone NAAQS. See Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” (May 10, 1995). In 2004, EPA indicated its intention to extend the Clean Data Policy to the PM_2.5 NAAQS. See Memorandum from Steve Page, Director, EPA Office of Air Quality Planning and Standards, “Clean Data Policy for the Fine Particle National Ambient Air Quality Standards” (December 14, 2004).

The Clean Data Policy represents EPA's interpretation that certain requirements of subpart 1 of part D of the Act are by their terms not applicable to areas that are currently attaining the NAAQS.^[2] The specific requirements that are inapplicable to an area attaining the standard are the requirements to submit a SIP that provides for: attainment of the NAAQS; implementation of all reasonably available control measures; reasonable further progress (RFP); and implementation of contingency measures for failure to meet deadlines for RFP and attainment.

It is important to note that the obligation of a State with respect to an area which attains the 2006 PM_2.5 standard based on three years of data, to submit an attainment demonstration and related planning submissions is suspended only for so long as the area continues to attain the standard. If EPA subsequently determines, after notice-and-comment rulemaking, that the area has violated the NAAQS, the requirements for the State to submit a SIP to meet the previously suspended requirements would be reinstated. It is likewise important to note that the area remains designated nonattainment pending a further redesignation action.

III. What comments did EPA receive on its proposal and what is EPA's response?

EPA received one adverse comment on the proposal, from a pseudonymous commenter. A summary of the comment submitted and EPA's response is provided below.

Comment: The commenter alleges that the determination of attainment for the NY-NJ-CT PM_2.5 nonattainment area is inappropriate due to particulate matter released from burning and allegedly inadequate air quality monitoring. The commenter also questioned the interaction between the New Jersey Department of Environmental Protection and EPA.

Response: In this rulemaking, EPA is making the determination that the NY-NJ-CT PM_2.5 nonattainment area has attained the 2006 PM_2.5 NAAQS. EPA is finalizing its determination only after conducting notice and comment rulemaking, through a transparent process in which the information on which the determination is based has been made available in the docket and also placed in the Technical Support Document for this rulemaking. EPA's determination of attainment is based on quality-assured, quality-controlled, and certified ambient air monitoring data. These data establish that, for 2007-2009, 2008-2010, and 2009-2011 the NY-NJ-CT PM_2.5 nonattainment area meets the 2006 24-hour PM_2.5 NAAQS. Air monitoring data available for 2012 also indicate that the NY-NJ-CT PM_2.5 nonattainment area is continuing to meet the 2006 24-hour PM_2.5 NAAQS. Contrary to the commenter's contention, the air monitoring networks for Connecticut, New Jersey, and New York are adequate, and meet the requirements for monitoring as specified in 40 CFR Part 58. EPA meets annually with the states to determine the adequateness of the monitoring networks. Air monitoring network approval letters are included in the Technical Support Document and docket for the proposed rule. In conclusion, the determination of attainment is being made based on quality-assured air quality data from approved monitoring networks. The suspension of requirements for this area to submit attainment-related planning SIP submission requirements lasts only as long as the area continues to meet that standard. No other requirements are suspended and no control measures in the SIP are being relaxed. This action does not change the implementation of control measures, or air quality, in the area.

Table 1 shows the design values by county (i.e., the 3-year average of 98th percentile 24-hour PM_2.5 concentrations) for the 2006 24-hour PM_2.5 NAAQS for the NY-NJ-CT PM_2.5 nonattainment area monitors for the years 2007 through 2011 based on complete (except where otherwise noted), quality-assured and certified air quality monitoring data. As shown in Table 1, none of the design values for the periods of 2007-2009, 2008-2010, and 2009-2011 in the NY-NJ-CT PM_2.5 nonattainment area exceeds the 2006 24-hour PM_2.5 NAAQS of 35.0 micrograms per cubic meter (μg/m³).

Table 1—Design Values ³ by County for the 2006 24-Hour PM_2.5 NAAQS for the NY-NJ-CT Monitors in Micrograms per Cubic Meter (μg/m ³). The Standard for the 2006 24-Hour PM_2.5 NAAQS Is 35.0 μg/m ³

County	2007-2009 PM2.5 Design Values	2008-2010 PM2.5 Design Values	2009-2011 PM2.5 Design Values
New York
Bronx	33	29	28
Kings	30	27	25
Nassau 4	INC	25	23
New York 5	6 33	6 31	28
Orange	26	24	23
Queens	30	28	26
Richmond	29	26	24
Rockland	NM	NM	NM
Suffolk	26	25	23
Westchester	29	28	25
NJ
Bergen	31	28	25
Essex 7	6 30	6 26	INC
Hudson	32	29	28
Mercer	29	27	26
Middlesex	27	23	20
Monmouth	NM	NM	NM
Morris	26	23	23
Passaic	30	INC	25
Somerset	NM	NM	NM
Union	6 32	30	30
Connecticut
Fairfield	31	28	26
New Haven	31	29	28
NM—No monitor located in county.
INC—Counties listed as INC did not meet 75 percent data completeness requirement for the relevant time period.

IV. What is the effect of this action?

This final action, in accordance with the Clean Data Policy, which is reflected in 40 CFR 51.1004(c), suspends the requirements for the States of Connecticut, New Jersey, and New York, to submit an attainment demonstration, associated reasonably available control measures, RFP, contingency measures, and other planning SIPs related to attainment of the 2006 24-hour PM_2.5 NAAQS for the NY-NJ-CT PM_2.5 nonattainment area for so long as the area continues to attain the 2006 PM_2.5 NAAQS.

This action does not constitute a redesignation to attainment under section 107(d)(3) of the CAA, because the area does not have an approved maintenance plan as required under section 175A of the CAA. Nor is it a determination that the area has met the other requirements for redesignation. The designation status of the area remains nonattainment for the 2006 24-hour PM_2.5 NAAQS until such time as EPA determines that the area, and/or a State portion thereof, meets the CAA requirements for redesignation to attainment.

V. What is EPA's final action?

EPA is determining that the NY-NJ-CT PM_2.5 nonattainment area for the 2006 24-hour PM_2.5 NAAQS has attained the 2006 24-hour PM_2.5 NAAQS. This determination is based upon quality-assured, quality-controlled, and certified ambient air monitoring data that show that the area has monitored attainment of the 2006 24-hour PM_2.5 NAAQS for the 2007-2009 and 2008-2010 and 2009-2011 monitoring periods. Preliminary air monitoring data available for 2012 are consistent with the determination that the NY-NJ-CT PM_2.5 nonattainment area is continuing to meet the 2006 24-hour PM_2.5 NAAQS. This final action, in accordance with the Clean Data Policy, suspends the requirements for the States of New York, New Jersey and Connecticut to submit, for the NY-NJ-CT PM_2.5 nonattainment area, an attainment demonstration, associated reasonably available control measures, RFP, contingency measures, and other planning SIPs related to attainment of the 2006 24-hour PM_2.5 NAAQS in the area for so long as the area continues to attain the 2006 24-hour PM_2.5 NAAQS. If EPA subsequently determines, after notice-and-comment rulemaking in the Federal Register, that the NY-NJ-CT PM_2.5 nonattainment area has violated the 2006 24-hour PM_2.5 NAAQS, the basis for the suspension of the specific requirements would no longer exist for the area, and the affected States would thereafter have to address the applicable requirements for the 2006 24-hour PM_2.5 NAAQS.

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. A delayed effective date is unnecessary due to the nature of a determination of attainment, which suspends the obligation to submit certain attainment-related CAA planning requirements that would otherwise apply. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the affected States of the obligation to submit certain attainment-related planning requirements for this PM_2.5 nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this notice.

VI. Statutory and Executive Order Reviews

This action makes an attainment determination based on air quality and results in the suspension of certain Federal requirements, and it does not impose additional requirements beyond those imposed by state law.

For these reasons, this 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.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 1, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Particulate matter

Dated: November 28, 2012.

Judith A. Enck,

Regional Administrator, Region II.

Dated: December 11, 2012.

H. Curtis Spalding,

Regional Administrator, Region I.

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

Subpart H—Connecticut

2. Section 52.379 is amended by adding paragraph (g) to read as follows:

§ 52.379

Control strategy: PM_2.5.

* * * * *

(g) Determination of Attainment. EPA has determined, as of December 31, 2012, that the New York-N. New Jersey-Long Island, NY-NJ-CT fine particle (PM_2.5) nonattainment area has attained the 2006 PM_2.5 National Ambient Air Quality Standard. This determination suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as the area continues to attain the 2006 PM_2.5 NAAQS.

Subpart FF—New Jersey

3. Section 52.1602 is amended by adding paragraph (e) to read as follows:

§ 52.1602

Control strategy and regulations: PM_2.5.

* * * * *

(e) Determination of Attainment. EPA has determined, as of December 31, 2012, that the New York-N. New Jersey-Long Island, NY-NJ-CT fine particle (PM_2.5) nonattainment area has attained the 2006 PM_2.5 National Ambient Air Quality Standard. This determination suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as the area continues to attain the 2006 PM_2.5 NAAQS.

Subpart HH—New York

4. Section 52.1678 is amended by adding paragraph (f) to read as follows:

§ 52.1678

Control strategy and regulations: Particulate matter.

* * * * *

(f) Determination of Attainment. EPA has determined, as of December 31, 2012, that the New York-N. New Jersey-Long Island, NY-NJ-CT fine particle (PM_2.5) nonattainment area has attained the 2006 PM_2.5 National Ambient Air Quality Standard. This determination suspends the requirements for this area to submit an attainment demonstration, associated reasonably control available measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as the area continues to attain the 2006 PM_2.5 NAAQS.

Footnotes

1.  While EPA recognizes that 40 CFR 51.1004(c) does not itself expressly apply to the 2006 PM_2.5 standard, the statutory interpretation that it embodies is identical and is applicable to both the 1997 and 2006 PM_2.5 standards.

2.  This discussion refers to subpart 1 because subpart 1 contains the requirements relating to attainment of the 2006 PM_2.5 NAAQS.

3.  PM_2.5 Design Values can be found at: http://www.epa.gov/airtrends/values.html.

4.  The monitor located in Nassau County had incomplete data for 2007 which led to inability to calculate design values for the period of 2007-2009. The monitor did not show previous violations and therefore it was deemed that determining the design values though alternative procedures was not necessary.

5.  The monitor in New York County located at Public School 59 was the highest reading monitor in the County at the time EPA made designations for the 2006 PM_2.5 NAAQS. Midway through 2008, the monitor at PS 59 was shut down due to the demolition of the building site. Since missing 2008 data affected calculation of the design value for the 24-hour standard, EPA used an alternative procedure to determine the design value for the 24-hour standard. Detailed information on this alternative procedure can be found in the Technical Support Document for this rulemaking.

6.  Design Value was calculated using the alternative procedure described in the Technical Support Document for this rulemaking.

7.  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. EPA used an alternative procedure to determine the design value for the 24-hour standard for 2007-2009 and 2008-2010. The monitor did not show any violations in 2009 and 2010, therefore it was deemed that determining the design value for 2009-2011 through alternative procedures was not necessary. For 2009 and 2010, the 98th percentile value for the new monitor was 24 µg/m3. . Detailed information on this alternative procedure can be found in the Technical Support Document for this rulemaking.