E9-28971. Determinations of Attainment of the One-Hour and Eight-Hour Ozone Standards for Various Ozone Nonattainment Areas in New Jersey and Upstate New York

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is determining that various ozone nonattainment areas in New York and New Jersey have attained the one-hour and eight-hour National Ambient Air Quality Standards (NAAQS) for ozone. For the one-hour standard, the areas are the Atlantic City and Warren County areas in New Jersey and the Albany-Schenectady-Troy, Buffalo-Niagara Falls, Essex County, Jefferson County, and Poughkeepsie areas in New York. For the 1997 eight-hour standard, the areas are Buffalo-Niagara Falls, Jamestown, Poughkeepsie and Essex County in New York. These determinations are based upon certified ambient air monitoring data that show each area has monitored attainment of ozone NAAQS based on complete, quality-assured ambient air monitoring data for the three-year period ending in 2008. These data demonstrate that the one-hour and eight-hour ozone standards have been attained in these areas. These areas that have attained the one-hour standard have completed their progress toward achieving the one-hour health standard. For the areas that have attained the eight-hour standard, the requirements for the State 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 the ozone standards are suspended for as long as the areas continue to attain the eight-hour ozone standard. These determinations of attainment are not redesignations of these areas to attainment. Redesignations must meet additional requirements, including an approved plan to maintain compliance with the air quality standard for ten years after redesignation. In addition, preliminary data for 2009 show that these areas continue to attain the standard.

DATES:

Effective Date: This rule is effective on January 6, 2010.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R02-OAR-2008-0638. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air Programs Branch, U.S. Environmental Protection Agency, Region 2, 290 Broadway, 25th Floor, New York, New York 10007-1866. To make your visit as productive as possible, contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Robert F. Kelly, Air Programs Branch, Environmental Protection Agency, Region 2, 290 Broadway, 25th Floor, New York, New York 10007-1866, telephone number [phone], fax number [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. EPA's Action

II. The Effect of EPA's Action

III. Final Action

IV. Statutory and Executive Order Reviews

I. EPA's Action

EPA is determining that the Atlantic City area and Warren County in New Jersey and the Albany-Schenectady-Troy, Buffalo-Niagara Falls, Essex County, Jefferson County, and Poughkeepsie areas in New York are certified as attaining the one-hour ozone national ambient air quality standard (NAAQS). The Buffalo-Niagara Falls, Jamestown, Poughkeepsie and Essex County eight-hour ozone nonattainment areas in New York have attained the 1997 eight-hour NAAQS for ozone. These determinations are based upon certified ambient air monitoring data that show the areas have monitored attainment of the ozone NAAQS for the three year period from 2006 to 2008. All these data are available in the EPA Air Quality System (AQS) database.

The rationale for EPA's determination is explained in the Proposed Rulemaking published on September 23, 2009 (74 FR 48498) and will not be restated here. No public comments were received on the proposal.

II. The Effect of EPA's Action

The following areas subject to the one-hour standard have completed their progress toward achieving the one-hour health standard: the Atlantic City area and Warren County in New Jersey, and the Albany-Schenectady-Troy, Buffalo-Niagara Falls, Essex County, Jefferson County, and Poughkeepsie areas in New York.

For the areas that attained the eight-hour standard, that is, the Buffalo-Niagara Falls, Jamestown, Poughkeepsie and Essex County ozone nonattainment areas this determination suspends the requirements for various State Implementation Plan (SIP) items, including, where applicable, the requirement to submit an attainment demonstration, a reasonable further progress plan, and section 172(c)(9) contingency measures for the eight-hour ozone NAAQS for so long as these areas continue to attain the ozone NAAQS. EPA makes this determination under the provisions of EPA's ozone implementation rule (see 40 CFR 51.918).

This action does not constitute a redesignation to attainment under Clean Air Act (CAA) section 107(d)(3), because these areas do not have approved maintenance plans as required under section 175A of the CAA, nor are there determinations that the areas have met the other requirements for redesignation. The classification and designation status of these areas will not change from nonattainment for the eight-hour ozone NAAQS until such time as EPA determines that they meet the CAA requirements for redesignation to attainment.

If EPA subsequently determines that any of these areas has violated the current eight hour ozone standard, after notice-and-comment rulemaking in the Federal Register, the basis for the suspension of these requirements would no longer exist for that area, and the area that violated the eight hour standard would have to address the pertinent requirements.

III. Final Action

EPA is determining the following areas have attained the 1-hour standard: the Atlantic City and Warren County areas in New Jersey and the Albany-Schenectady-Troy, Buffalo-Niagara Falls, Essex County, Jefferson County, and Poughkeepsie areas in New York. EPA is also determining that the following areas in New York have attained the eight hour standard: Buffalo-Niagara Falls, Jamestown, Poughkeepsie and Essex County (Whiteface Mountain). For the eight hour ozone nonattainment areas, as provided in 40 CFR 51.918, this determination suspends the requirements for New York to submit attainment demonstrations, reasonable further progress plans, and contingency measures under section 172(c)(9), and any other planning SIP related to attainment of the eight hour ozone NAAQS for these areas, where applicable. If an area no longer attains the standard, that area must submit the required SIP planning elements required by the CAA.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action makes a determination based on air quality data, and results in the suspension of certain Federal requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule makes a determination based on air quality data, and results in the suspension of certain Federal requirements, it 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).

This rule also does not have Tribal implications because it will not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely makes a determination based on air quality data and results in the suspension of certain Federal requirements, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it determines that air quality in the affected area is meeting Federal standards.

The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply because it would be inconsistent with applicable law for EPA, when determining the attainment status of an area, to use voluntary consensus standards in place of promulgated air quality standards and monitoring procedures that otherwise satisfy the provisions of the Clean Air Act.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Under Executive Order 12898, EPA finds that this rule involves a determination of attainment based on air quality data and will not have disproportionately high and adverse human health or environmental effects on any communities in the area, including minority and low-income communities.

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 rule 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 February 5, 2010. 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).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: November 24, 2009.

George Pavlou,

Acting Regional Administrator, Region 2.

Part 52 of 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 et seq.

Subpart FF—New Jersey

2. Section 52.1582 is amended by revising paragraph (l) to read as follows:

§ 52.1582

Control strategy and regulations: Ozone.

* * * * *

(l) Attainment Determination. EPA is determining that the 1-hour ozone nonattainment areas in New Jersey listed below have attained the 1-hour ozone standard on the date listed and that the reasonable further progress and attainment demonstration requirements of section 182(b)(1) and related requirements of section 172(c)(9) (contingency measures) of the Clean Air Act do not apply to these areas.

(1) Philadelphia-Wilmington-Trenton (consisting of Burlington, Camden, Cumberland, Gloucester, Mercer, and Salem Counties) as of November 15, 2005. EPA also has determined, as of November 15, 2005, the Philadelphia-Wilmington-Trenton severe 1-hour ozone nonattainment area is not subject to the imposition of the section 185 penalty fees.

(2) Atlantic City (consisting of Atlantic and Cape May Counties) as of January 6, 2010.

(3) Warren County as of January 6, 2010.

* * * * *

Subpart HH—New York

2. Section 52.1683 is amended as follows:

a. By revising paragraph (f)(1).

b. In paragraph (f)(2)(i) by removing the comma at the end of the paragraph and adding a period in its place.

c. In paragraph (f)(2)(ii) by removing “, and” at the end of the paragraph and adding in its place a period.

d. By adding paragraphs (f)(2)(iv), (f)(2)(v), (f)(2)(vi), and (f)(2)(vii).

§ 52.1683

Control strategy: Ozone.

* * * * *

(f) * * *

(1) EPA is determining that the 1-hour ozone nonattainment areas in New York listed below have attained the 1-hour ozone standard on the date listed and that the reasonable further progress and attainment demonstration requirements of section 182(b)(1) and related requirements of section 172(c)(9) (contingency measures) of the Clean Air Act do not apply to these areas.

(i) Albany-Schenectady-Troy (consisting of Albany, Greene, Montgomery, Rensselaer, Saratoga, and Schenectady Counties) as of January 6, 2010.

(ii) Buffalo-Niagara Falls (consisting of Erie and Niagara Counties) as of January 6, 2010.

(iii) Essex County as of January 6, 2010.

(iv) Jefferson County, as of January 6, 2010.

(v) Poughkeepsie (consisting of Dutchess, and Putnam Counties and northern Orange County) as of January 6, 2010.

(2) * * *

(iv) Buffalo-Niagara Falls (consisting of Erie and Niagara Counties) as of January 6, 2010.

(v) Jamestown (consisting of Chautauqua County) as of January 6, 2010.

(vi) Poughkeepsie (consisting of Dutchess, Orange and Putnam Counties) as of January 6, 2010.

(vii) Essex County (consisting of Whiteface Mountain) as of January 6, 2010.

* * * * *