Federal Register, Volume 62 Issue 245 (Monday, December 22, 1997)

[Federal Register Volume 62, Number 245 (Monday, December 22, 1997)]
[Rules and Regulations]
[Pages 66822-66825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33080]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY 26-2-176a; FRL-5936-8]

Determination of Attainment of the One-Hour Ozone Standard for
the Poughkeepsie, New York Ozone Nonattainment Area and Determination
Regarding Applicability of Certain Reasonable Further Progress and
Attainment Demonstration Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is determining, through direct final procedure, that
the Poughkeepsie moderate ozone nonattainment area in New York has
attained the one-hour National Ambient Air Quality Standard (NAAQS) for
ozone. This determination is based upon three years of complete,
quality assured ambient air monitoring data for the years 1995-97. This
data demonstrates that the one-hour ozone NAAQS has been attained in
this area. On the basis of this determination, EPA is also determining
that certain reasonable further progress and attainment demonstration
requirements, along with certain other related requirements, of Part D
of Title 1 of the Clean Air Act are not applicable to this area.
In the proposed rules section of this Federal Register, EPA is
proposing this determination and soliciting public comment on it. If
adverse comments are received on this direct final rule, EPA will
withdraw this final rule and address these comments in a final rule on
the related proposed rule which is being published in the proposed
rules section of this Federal Register.

DATES: This action will be effective Febraury 5, 1998 unless adverse or
critical comments are received by January 21, 1998. If the effective
date is delayed, a timely document will be published in the Federal
Register.

ADDRESSES: Written comments should be mailed to Ronald Borsellino,
Chief, Air Programs Branch, Environmental Protection Agency, Region 2,
290 Broadway, New York, NY 10007-1866. Copies of the relevant material
for this notice are available for inspection during normal business
hours at: Environmental Protection Agency, Region 2 Office, Air
Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-
1866.

FOR FURTHER INFORMATION CONTACT: Robert F. Kelly, Air Programs Branch,
Environmental Protection Agency, Region 2, at the above address. Phone:
212-637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

Subpart 2 of Part D of Title I of the Clean Air Act (CAA) contains
various air quality planning and state implementation plan (SIP)
submission requirements for ozone nonattainment areas. EPA has
interpreted provisions regarding reasonable further progress (RFP) and
attainment demonstrations, along with certain other related provisions,
so as not to require SIP submissions if an ozone nonattainment area
subject to those requirements is monitoring attainment of the one-hour
ozone standard (i.e., attainment of the NAAQS is demonstrated with
three consecutive years of complete, quality assured air quality
monitoring data). As described below, EPA has previously interpreted
the general provisions of subpart 1 of part D of Title I (sections 171
and 172) so as not to require the submission of SIP revisions
concerning RFP, attainment demonstrations, or contingency measures. As
explained in a memorandum dated May 10, 1995 from John Seitz to the
Regional Air Division Directors, entitled ``Reasonable Further
Progress, Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' EPA has interpreted the more specific RFP, attainment
demonstration and related provisions of subpart 2 in the same manner.
First, with respect to RFP, section 171(1) states that, for
purposes of part D of Title I, RFP ``means such annual incremental
reductions in emissions of the relevant air pollutant as are required
by this part or may reasonably be required by the Administrator for the
purpose of ensuring attainment of the applicable national ambient air
quality standard by the applicable date.'' Thus, whether dealing with
the general RFP requirement of section 172(c)(2), or the more specific
RFP requirements of subpart 2 for classified ozone nonattainment areas
(such as the 15 percent plan requirement of section 182(b)(1)), the
stated purpose of RFP is

[[Page 66823]]

to ensure attainment by the applicable attainment date.¹ If
an area has in fact attained the one-hour standard, the stated purpose
of the RFP requirement will have already been fulfilled and EPA does
not believe that the area needs to submit revisions providing for the
further emission reductions described in the RFP provisions of section
182(b)(1).
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\1\ EPA notes that paragraph (1) of subsection 182(b) is
entitled ``PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS'' and
that subparagraph (B) of paragraph 182(c)(2) is entitled
``REASONABLE FURTHER PROGRESS DEMONSTRATION,'' thereby making it
clear that both the 15 percent plan requirement of section 182(b)(1)
and the 3 percent per year requirement of section 182(c)(2) are
specific varieties of RFP requirements.
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EPA notes that it took this view with respect to the general RFP
requirement of section 172(c)(2) in the General Preamble for the
Interpretation of Title I of the Clean Air Act Amendments of 1990 (57
FR 13498, April 16, 1992), and it is now extending that interpretation
to the specific provisions of subpart 2. In the General Preamble, EPA
stated, in the context of a discussion of the requirements applicable
to the evaluation of requests to redesignate nonattainment areas to
attainment, that the ``requirements for RFP will not apply in
evaluating a request for redesignation to attainment since, at a
minimum, the air quality data for the area must show that the area has
already attained. Showing that the State will make RFP towards
attainment will, therefore, have no meaning at that point.'' (57 FR at
13564.) ²
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\2\ See also ``Procedures for Processing Requests to Redesignate
Areas to Attainment,'' from John Calcagni, Director, Air Quality
Management Division, to Regional Air Division Directors, September
4, 1992, at page 6 (stating that the ``requirements for reasonable
further progress * * * will not apply for redesignations because
they only have meaning for areas not attaining the standard'')
(hereinafter referred to as ``September 1992 Calcagni memorandum'').
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Second, with respect to the attainment demonstration requirements
of section 182(b)(1) an analogous rationale leads to the same result.
Section 182(b)(1) requires that the plan provide for ``such specific
annual reductions in emissions * * * as necessary to attain the
national primary ambient air quality standard by the attainment date
applicable under this Act.'' As with the RFP requirements, if an area
has in fact monitored attainment of the one-hour standard, EPA believes
there is no need for an area to make a further submission containing
additional measures to achieve attainment of the one-hour standard.
This is also consistent with the interpretation of certain section
172(c) requirements provided by EPA in the General Preamble to Title I,
as EPA stated there that no other measures to provide for attainment
would be needed by areas seeking redesignation to attainment since
``attainment will have been reached.'' (57 FR at 13564; see also
September 1992 Calcagni memorandum at page 6.) Upon attainment of the
NAAQS, the focus of state planning efforts shifts to the maintenance of
the NAAQS and the development of a maintenance plan under section 175A.
Similar reasoning applies to the contingency measure requirements
of section 172(c)(9). EPA has previously interpreted the contingency
measure requirement of section 172(c)(9) as no longer being applicable
once an area has attained the one-hour standard since those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' (57 FR at 13564; see also September 1992
Calcagni memorandum at page 6.) As the section 172(c)(9) contingency
measures are linked with the RFP requirements of section 182(b)(1), the
requirement no longer applies once an area has attained the one-hour
standard.
This action is only a suspension of the requirements to submit the
SIP revisions discussed above. If the area were to violate the one-hour
ozone NAAQS, the basis for the determination that the area need not
make the pertinent SIP revisions would no longer exist. The EPA would
notify the state of that determination and would also provide
notification to the public in the Federal Register. Such a
determination would mean that the area would have to address the
pertinent SIP requirements within a period of time, which EPA would
establish taking into account the individual circumstances surrounding
the particular SIP submissions at issue.
However, EPA recently promulgated a new eight-hour ozone standard.
The President's Directive of July 16, 1997 outlines how EPA will make
the transition from the old one-hour standard to the new SIP
requirements for the eight-hour standard. The Directive states that EPA
will revoke the one-hour standard once an area has air monitoring data
showing attainment of the one-hour standard. If EPA revokes the one-
hour standard for an area, the requirement for the area to submit RFP
requirements and an attainment demonstration for the one-hour standard
will be permanently ended.
The state must continue to operate an appropriate air quality
monitoring network, in accordance with 40 CFR part 58, to verify the
attainment status of the area. The air quality data relied upon to
determine that the area is attaining the ozone standard must be
consistent with 40 CFR part 58 requirements and other relevant EPA
guidance and recorded in EPA's Aerometric Information Retrieval System
(AIRS).
The determination that is being made with this Federal Register
document that air quality data shows attainment of the one-hour
standard is not equivalent to the redesignation of the area to
attainment. Using monitoring data to show attainment of the ozone NAAQS
is only one of the criteria set forth in section 107(d)(3)(E) that must
be satisfied for an area to be redesignated to attainment. To be
redesignated the state must submit and receive full approval of a
redesignation request for the area that satisfies all of the criteria
of that section, including the requirement of a demonstration that the
improvement in the area's air quality is due to permanent and
enforceable reductions and the requirements that the area have a fully-
approved SIP meeting all of the applicable requirements under section
110 and Part D and a fully-approved maintenance plan.
Furthermore, the determination made in this notice does not shield
an area from future EPA action. EPA can require emissions reductions
from sources in the area where there is evidence, such as photochemical
grid modeling, showing that emissions from sources in the area
contribute significantly to nonattainment in, or interfere with
maintenance by, other nonattainment areas. EPA has authority under
section 110(a)(2) to require such emission reductions if necessary and
appropriate to deal with transport situations. Also, EPA can require
SIPs from this area if EPA or the state proposes, in future actions,
that the area is in violation of the eight-hour standard.

II. Analysis of Air Quality Data

On November 17, 1997, New York requested that EPA find that air
monitoring data from New York State for the Poughkeepsie ozone
nonattainment area shows that the area is attaining the one-hour ozone
standard. New York State, also on November 17, 1997, submitted quality
assured data (consistent with the requirements contained in 40 CFR part
58 and recorded in AIRS) through the end of the 1997 ozone season and
certified that these data met EPA's requirements. The EPA has reviewed
the ambient air monitoring data for ozone from 1995 through 1997 for
the Poughkeepsie ozone nonattainment area, which includes Dutchess,
Putnam and northern Orange Counties in New York. The data were taken
from the

[[Page 66824]]

EPA-approved New York State air quality monitoring network. It should
be noted that New York expanded air monitoring in the Poughkeepsie area
from one to three monitors during the 1990s. The monitors in these
locations were sited to measure ozone concentrations typical of
concentrations across the area. New York did this to better define the
extent of ozone nonattainment in the area. Expanding the network
increased the opportunity for finding violations of the ozone standard
in the Poughkeepsie area. EPA believes that these data are
representative of the Poughkeepsie ozone nonattainment area. This is
especially true since ozone is not emitted directly from sources, but
is formed from pollutants that react in sunshine over a period of time.
The ozone air quality data for the Poughkeepsie ozone nonattainment
area, summarized in Table I, shows that the area has met the one-hour
NAAQS.

Table I.--Exceedances of the One-hour Ozone Standard for Monitoring Sites in the Poughkeepsie Ozone
Nonattainment Area
[From EPA AIRS]
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Number of exceedances
(in parentheses) Number Total number Average number
of expected exceedances of expected of expected Attainment status
Site in bold exceedances exceedances 1995-7
--------------------------- 1995-7 1995-7
1995 1996 1997
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Millbrook........................ (0) (0) (0) 0.0 0.0 Attain.
0.0 0.0 0.0 .............. .............. ..................
Mt. Ninham....................... (2) (1) (0) 3.1 1.0 Attain.
2.0 1.1 0.0 .............. .............. ..................
Valley Central................... (0) (1) (0) 1.0 0.3 Attain.
0.0 1.0 0.0 .............. .............. ..................
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Note: Expected exceedances are calculated from the actual number of exceedances ( ), adjusted for missing data
as required by Appendix H. The 0.12 ppm one-hour average ozone standard is attained when the three year
average of expected exceedances is 1.0 or less. The expected and average number of exceedances are rounded to
the nearest tenth. [See CFR Part 51, Appendix H.]

As noted in Table I, attainment of the one-hour ozone standard is
achieved when an area's monitoring sites have 1.0 or less exceedances
per year, averaged over a three year period from 1995 through 1997.
Since all of the monitors in the Poughkeepsie ozone nonattainment area
average 1.0 or less exceedances per year, the Poughkeepsie area is
attaining the one-hour NAAQS for ozone. Attaining the ozone standard
would relieve New York from submitting a reasonable further progress
plan whose purpose was to bring the area into attainment. Likewise, New
York would not have to submit an attainment demonstration since the
area has attained the one-hour ozone standard.

III. Final Action

EPA determines that the Poughkeepsie ozone nonattainment area has
attained the one-hour ozone standard based on three years of quality-
assured monitoring data at all three sites in the area. As a
consequence of EPA's determination that the Poughkeepsie area has
attained the one-hour ozone standard, the requirements of section
182(b)(1) concerning the submission of the 15 percent plan and ozone
attainment demonstration and the requirements of section 172(c)(9)
concerning contingency measures shall not be applicable to the area.
This is effective as long as the area continues to attain the one-hour
ozone standard, or until EPA revokes the one-hour standard.
EPA emphasizes that as long as the one-hour standard applies to the
Poughkeepsie area, these determinations are contingent upon the
continued monitoring and continued attainment and maintenance of the
one-hour ozone NAAQS in this affected area. If while the one-hour
standard is still in effect, a violation of the one-hour ozone NAAQS is
monitored in the Poughkeepsie area (consistent with the requirements
contained in 40 CFR part 58 and recorded in AIRS), EPA will provide
notice to the public in the Federal Register. Then EPA would reinstate
the requirements of section 182(b)(1) and section 172(c)(9) for the
Poughkeepsie area since the basis for the determination that they are
not needed would not exist.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial action and anticipates no
adverse comments. EPA is strictly acting on the basis of real data,
without modification or interpretation that impels EPA to make the
determination in this document. However, in a separate document in this
Federal Register publication, the EPA is proposing to approve this
action in case adverse or critical comments be filed. This action will
be effective February 5, 1998 unless, by January 21, 1998, adverse or
critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The 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 February 5, 1998.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revisions to any SIP. Each request for revision of the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.

IV. Administrative Requirements

Executive Order 12866

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. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify

[[Page 66825]]

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.
This action removes a requirement that the Clean Air Act required
the State to address. Therefore, because this action does not impose
any new requirements, I certify that it does not have an impact on any
small entities.

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 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 this action 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. This federal action imposes no new requirements,
and 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. section 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 the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. section 804(2).

Petitions for Judicial Review

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 20, 1998. 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, Nitrogen oxides,
Ozone, Volatile organic compounds, Intergovernmental relations,
Reporting and recordkeeping requirements.

Dated: December 4, 1997.
William J. Muszynski,
Acting Regional Administrator, Region 2.

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 HH--New York

2. Section 52.1683 is amended by adding new paragraph (f) to read
as follows:

52.1683 Control strategy: Ozone.

* * * * *
(f) Attainment Determination--EPA has determined that, as of
February 5, 1998, the Poughkeepsie ozone nonattainment area (consisting
of Dutchess and Putnam Counties and northern Orange County) has air
monitoring data that attains the one-hour ozone standard and that the
requirements of section 182(b)(1) (reasonable further progress and
attainment demonstration) and related requirements of section 172(c)(9)
(contingency measures) of the Clean Air Act do not apply to the area.

[FR Doc. 97-33080 Filed 12-19-97; 8:45 am]
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