[Federal Register Volume 73, Number 31 (Thursday, February 14, 2008)]
[Proposed Rules]
[Pages 8637-8640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2781]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. EPA-R02-OAR-2008-0078; FRL-8529-9]


Determinations of Attainment of the Eight-Hour Ozone Standard for 
Various Ozone Nonattainment Areas in Upstate New York State

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to determine that three ozone 
nonattainment areas in New York, the Albany-Schenectady-Troy, Jefferson 
County and Rochester areas, have attained the eight-hour National 
Ambient Air Quality Standard for ozone. New York State has requested 
these determinations, which are based upon three years of complete, 
quality-assured ambient air monitoring data for the years 2004-2006. 
These data demonstrate that the eight-hour ozone standard has been 
attained in these areas. In addition, data for 2007 show that the areas 
continue to attain the standard. If these proposed determinations are 
made final, the requirements for the State to submit certain reasonable 
further progress

[[Page 8638]]

plans, attainment demonstrations, contingency measures and any other 
planning requirements of the Clean Air Act related to attainment of the 
eight-hour ozone standard shall be suspended for so long as the areas 
continue to attain the eight-hour ozone standard. One area requested by 
New York, Essex County, does not have sufficient air quality data to 
demonstrate attainment of the standard. EPA is not proposing to act on 
New York State's request for Essex County at this time.

DATES: Comments must be received on or before March 17, 2008. Public 
comments on this action are requested and will be considered before 
taking final action.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2008-0078, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: 212-637-3901.
     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-
2008-0078. 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 http://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.

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, (212) 637-4249.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Proposed Action
II. Background
III. Analysis of Air Quality Data
IV. Summary
V. Statutory and Executive Order Reviews

I. Proposed Action

    The EPA is proposing to determine that three ozone nonattainment 
areas in New York, the Albany-Schenectady-Troy, Jefferson County and 
Rochester areas, have attained the eight-hour National Ambient Air 
Quality Standard (NAAQS) for ozone. These determinations are based upon 
three years of complete, quality-assured ambient air monitoring data 
for the years 2004-2006. These data demonstrate that the eight-hour 
ozone NAAQS has been attained in these areas. In addition, data for 
2007 show that the areas continue to attain the standard. Pursuant to 
40 CFR section 51.918, if these proposed determinations are made final, 
the requirements for the State to submit certain reasonable further 
progress plans, attainment demonstrations, and contingency measures 
under section 172(c)(9) and any other planning State Implementation 
Plans (SIPs) related to attainment of the eight-hour ozone NAAQS, will 
be suspended for so long as the area continues to attain the ozone 
NAAQS.

II. Background

    On April 30, 2004 (69 FR 23857), EPA designated as nonattainment 
any area that was violating the 8-hour ozone NAAQS based on the three 
most recent years (2001-2003) of air quality data. At that time, a 
number of areas in New York State, including the areas discussed in 
this notice, were designated as nonattainment. The Albany-Schenectedy-
Troy area encompasses its 1999 metropolitan area, plus Greene County 
which was part of the previously existing one-hour ozone area. The 
Rochester area is the 1999 metropolitan area. Jefferson County is not 
part of a metropolitan area and was designated nonattainment as a 
single county. Air monitoring data on Whiteface Mountain violated the 
air quality standard but surrounding areas at lower elevations did not 
violated the standard, so the portion of Essex County above 1900 feet 
in the Whiteface Mountain area was designated as nonattainment. (See 40 
CFR 81.333.)
    On March 19, 2007, New York State Department of Environmental 
Conservation (New York) petitioned to EPA to find that air monitoring 
data from four areas of upstate New York were showing attainment of the 
eight-hour ozone standard for the most recent three years of ozone 
data, from 2004 to 2006. These areas were the Albany-Schenectady-Troy, 
Jefferson County, Essex County and Rochester nonattainment areas. On 
June 14, 2007, New York updated its submittal to document its public 
review process, including notice and comment.
    EPA's ozone implementation rule at 40 Code of Federal Regulations 
(CFR) sections 51.900-918, promulgated under sections 172 and 182 of 
the Clean Air Act, describes the Clean Air Act requirements for areas 
designated as not attaining the eight-hour ozone standard. For areas 
where air quality is attaining the standard, section 51.918 of the 
implementation rule provides that, upon a determination of attainment 
by EPA, the requirements for a State to submit certain required 
planning SIPs related to attainment of the eight-hour NAAQS, such as 
attainment demonstrations, reasonable further progress plans and 
contingency measures, shall be suspended. EPA's action only suspends 
the requirements to submit the SIP revisions discussed above. If this 
rulemaking is finalized and EPA subsequently determines after notice 
and comment rulemaking in the Federal Register that any of these areas 
have violated the standard, the basis for the suspension of these 
requirements for that area would no longer exist, and the area would 
thereafter have to address the pertinent requirements within a 
reasonable period of time. EPA would establish that period taking into 
account the individual circumstances

[[Page 8639]]

surrounding the particular submissions at issue.
    The determinations that EPA proposes with this Federal Register 
notice, that air quality data show attainment of the ozone standard, 
are not equivalent to the redesignation of the areas to attainment. 
Using monitoring data to show attainment of the ozone NAAQS is only one 
of the criteria set forth in Clean Air Act 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 section 107(d)(3)(E), including a demonstration that the improvement 
in the area's air quality is due to permanent and enforceable 
reductions and a fully-approved SIP meeting all of the applicable 
requirements under section 110 and Part D and a fully-approved 
maintenance plan.

III. Analysis of Air Quality Data

    In New York's petition, it certified the air quality data submitted 
by the State for the years 2004, 2005, and 2006 was accurate and 
properly quality-assured and met state and EPA monitoring requirements. 
New York submitted these data to EPA's Air Quality System, where it is 
available to the public via http://www.epa.gov/ttn/airs/airsaqs/. After 
New York submitted its petition, New York supplied additional quality-
assured air quality data from 2007 to EPA's Air Quality System 
database. EPA has reviewed these data to determine if the areas 
proposed by New York remain in attainment when the additional data from 
2007 are included. Table I summarizes the ozone air quality data for 
these four areas of upstate New York and EPA's evaluation of whether 
these areas meet EPA's requirements for attaining the eight-hour ozone 
NAAQS.

Table I.--Fourth Highest Concentrations and Design Values for the Eight-Hour Ozone Standard for Monitoring Sites
                                        in Four Areas of Upstate New York
                                             [In parts per million]
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                                    Fourth highest concentration        Average of             Attainment
                                ------------------------------------  fourth highest  --------------------------
     Area/Site/EPA Site ID                                             concentration
                                   2004     2005     2006     2007  ------------------    2004-6        2005-7
                                                                      2004-6   2005-7
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Albany-Schenectady-Troy, NY....  .......  .......  .......  .......  .......  .......  Yes.........  Yes.
    Loudonville 360010012......    0.072    0.080    0.069    0.075    0.073    0.074  ............  ...........
    Schenectady 360930003......    0.068    0.077    0.061    0.067    0.068    0.068  ............  ...........
    Grafton Lakes 360830004....    0.076    0.081    0.072    0.078    0.076    0.077  ............  ...........
    Stillwater 360910004.......    0.077    0.084    0.073    0.081    0.078    0.079  ............  ...........
Essex Co. (Whiteface Mt.), NY..  .......  .......  .......  .......  .......  .......  No*.........  No.*
    Whiteface Mt. Summit, NY       0.077    0.079    0.071    0.084    0.071    0.078  ............  ...........
     360310002.
    Whiteface Mt. Base, NY         0.071    0.073    0.071    0.078    0.078    0.074  ............  ...........
     360310003.
Jefferson Co., NY 360450002....    0.071    0.083    0.073    0.083    0.075    0.077  Yes.........  Yes.
Rochester, NY..................  .......  .......  .......  .......  .......  .......  Yes.........  Yes.
    Rochester 2           0.057    0.080    0.081    0.078    0.072    0.079  ............  ...........
     360551007.
    Williamson 361173001.......    0.065    0.065    0.065    0.081    0.065    0.070  ............  ...........
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Note: All values in parts per million (ppm).
* Whiteface Mountain Summit monitor recorded less than 75% data capture for the ozone seasons of 2004 and 2005
  and does not have complete data for those years. The design value is the average of each year's fourth highest
  concentration as described in Appendix I to 40 CFR part 50. From 40 CFR part 50, Appendix I, Section 2.2: The
  standard-related summary statistic is the annual fourth-highest daily maximum 8-hour average ozone
  concentration, expressed in parts per million, averaged over three years. The 3-year average shall be computed
  using the three most recent, consecutive calendar years of monitoring data meeting the data completeness
  requirements described in this appendix. The computed 3-year average of the annual fourth-highest daily
  maximum 8-hour average ozone concentrations shall be expressed to three decimal places (the remaining digits
  to the right are truncated.)

    As noted in Table I, an area achieves attainment of the eight-hour 
ozone standard when an area's monitoring sites all have a design value 
of less than 0.085 ppm, calculated as described in 40 CFR part 50, 
Appendix I. In this case, all of the sites have a design value less 
than 0.085 ppm, but the Whiteface Mountain summit site in Essex County 
does not have complete data for 2004 and 2005, so there is not enough 
data to ensure the area is meeting the standard. Appendix I of 40 CFR 
part 50 stipulates that in order to be used for showing attainment of 
the standard, the three years of data must have an average percent of 
days with valid ambient monitoring data of greater than 90%, and no 
single year with less than 75% data completeness. The monitor at the 
summit of Whiteface Mountain recorded 64 and 74 percent of the required 
data in 2004 and 2005, respectively. Therefore, Essex County does not 
have sufficient data to support a determination that it is an area 
attaining the eight-hour ozone standard, and EPA is not proposing in 
this notice to make such a determination.
    EPA proposes to determine that quality-assured data from 2004 
through 2006 from Albany-Schenectady-Troy, Jefferson County and 
Rochester demonstrate that these areas met the eight-hour ozone 
standard. EPA has reviewed the latest quality-assured data, through 
September 2007, and preliminary data through the end of the ozone 
season of 2007 to insure that these areas still attain the ozone 
standard.
    EPA notes that New York's March 19, 2007 and June 14, 2007 requests 
also petitioned EPA to find that the Albany-Schenectady-Troy, Jefferson 
County, Essex County and the Buffalo-Niagara one-hour ozone 
nonattainment areas were showing attainment of the one-hour ozone 
standard. (The Rochester area was not designated as nonattainment for 
the one-hour standard, only the eight-hour standard.) EPA is not 
addressing that portion of the petition in this notice, but intends to 
propose action on this part of New York's request in a future, separate 
Federal Register notice.
    EPA is soliciting public comments on the issues discussed in this 
notice. EPA will consider these comments before taking final action. 
Interested parties may participate in the Federal rulemaking procedure 
by submitting written comments to EPA as discussed in the ADDRESSES 
section of this Federal Register.

[[Page 8640]]

IV. Summary

    EPA is proposing to determine that the Albany-Schenectady-Troy, 
Jefferson County and Rochester ozone nonattainment areas have attained 
the eight-hour ozone standard based on three years of complete, 
quality-assured monitoring data at all ozone monitoring sites in the 
areas. Data through the 2007 ozone season demonstrate that the areas 
continue to attain the standard. As provided in 40 CFR 51.918, if EPA's 
determinations that these areas have attained the eight-hour ozone 
standard are made final, they would suspend the requirements under 
section 182(b)(1) for submission of the reasonable further progress 
plan and ozone attainment demonstration and the requirements of section 
172(c)(9) concerning submission of contingency measures and any other 
planning SIP relating to attainment of the eight-hour NAAQS. This 
suspension of requirements would be effective as long as the areas 
continue to attain the eight-hour ozone standard. EPA will await 
additional, complete data before determining whether the Whiteface 
Mountain area in Essex County is attaining the standard.
    EPA emphasizes that its proposed determinations are contingent upon 
the continued monitoring and continued attainment and maintenance of 
the eight-hour ozone NAAQS in these affected areas. If these 
determinations are finalized and EPA subsequently determines, after 
notice and comment rulemaking, that an area violated the standard, the 
basis for the suspension of the planning requirements would no longer 
exist, and the area would thereafter have to address the pertinent 
requirements.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposes to make a determination based on air quality data, and 
would, if finalized, result 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 proposes to make a determination based on air 
quality data, and would, if finalized, result 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 proposed 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 proposed 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 proposes to make a determination based on air quality 
data and would, if finalized, result 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 proposed 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 proposes to determine 
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 proposed 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 
proposed 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.

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.

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

    Dated: February 6, 2008.
Alan J. Steinberg,
Regional Administrator, Region 2.
 [FR Doc. E8-2781 Filed 2-13-08; 8:45 am]
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