[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withdrawn prior to the effective date, timely notice withdrawing this 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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