[Federal Register Volume 73, Number 58 (Tuesday, March 25, 2008)]
[Rules and Regulations]
[Pages 15672-15674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6027]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2008-0078; FRL-8546-2]


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: Final rule.

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SUMMARY: The EPA is determining that three ozone nonattainment areas in 
New York, the Albany-Schenectady-Troy, Jefferson County and Rochester 
areas, have attained the 8-hour National Ambient Air Quality Standard 
(NAAQS) for ozone. This determination is based upon certified ambient 
air monitoring data that show each area has monitored attainment of the 
8-hour ozone NAAQS based on complete, quality-assured ambient air 
monitoring data for the three year period ending in 2006. In addition, 
data for 2007 show that the areas continue to attain the standard. This 
determination suspends any applicable requirements for these areas to 
submit an attainment demonstration, a reasonable further progress plan, 
contingency measures, and other planning State Implementation Plans 
related to attainment of the 8-hour ozone NAAQS. These requirements 
shall remain suspended for so long as these areas continue to attain 
the ozone NAAQS. New York proposed that Essex County had also attained 
the 8-hour ozone standard, but because of incomplete data, a 
determination of attainment cannot be made at this time.

DATES: Effective Date: This rule is effective on March 25, 2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R02-OAR-2008-0078. 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 (212) 637-4249, fax 
number (212) 637-3901, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. EPA's Action
II. The Effect of EPA's Action
III. The Effective Date of EPA's Action
IV. Final Action
V. Statutory and Executive Order Reviews

I. EPA's Action

    EPA is determining that the Albany-Schenectady-Troy, Jefferson 
County and Rochester 8-hour ozone nonattainment areas have attained the 
8-hour National Ambient Air Quality Standard (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 2004 to 2006. In addition, based on quality 
controlled and quality assured ozone data, these areas continued to 
attain the ozone NAAQS in 2007, the most recent year of data available. 
All these data are available in the EPA Air Quality System (AQS) 
database. Essex County did not have enough complete data to make a 
determination of attainment at this time.
    Other specific requirements of the determination and the rationale 
for EPA's proposed action are explained in the Notice of Proposed 
Rulemaking (NPR) published on February 14, 2008 (73 FR 8638) and will 
not be restated here. No public comments were received on the NPR.

II. The Effect of EPA's Action

    Under the provisions of EPA's ozone implementation rule (see 40 CFR 
51.918), this determination suspends the requirements for the Albany-
Schenectady-Troy, Jefferson County and Rochester ozone nonattainment 
areas to submit an attainment demonstration, a reasonable further 
progress plan, section 172(c)(9) contingency measures, and any other 
planning State Implementation Plans (SIPs) related to attainment of the 
8-hour ozone NAAQS for so long as these areas continue to attain the 
ozone NAAQS.
    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 8-hour 
ozone NAAQS until such time as EPA determines that they meet the CAA 
requirements for redesignation to attainment.
    If EPA subsequently determines, after notice-and-comment rulemaking 
in the Federal Register, that any of these areas has violated the 
current 8-hour ozone standard, the basis for the suspension of these 
requirements would no longer exist for that area, and the area that 
violated the 8-hour standard would have to address the pertinent 
requirements.

III. The Effective Date of EPA's Action

    EPA finds that there is good cause for this approval to become 
effective on the date of publication of this action in the Federal 
Register, because a delayed effective date is unnecessary due to the 
nature of the approval. The expedited effective date for this action is 
authorized under both 5 U.S.C. 553(d)(1), which provides that rule 
actions may become effective less than 30 days after publication if the 
rule ``grants or recognizes an exemption or relieves a restriction'' 
and 5 U.S.C. 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.'' As noted above, this 
determination of attainment suspends the requirements for New York to 
submit attainment demonstrations, reasonable further progress plans, 
section 172(c)(9) contingency measures, and any other planning SIPs 
related to attainment of the 8-hour ozone NAAQS in each of these areas 
for so long as an area continues to attain the ozone NAAQS. The 
suspension of these requirements is sufficient reason to allow an 
expedited effective date of this rule under 5 U.S.C. 553(d)(1). In 
addition, New York's suspension from these requirements provides good 
cause to make this rule effective on the date

[[Page 15673]]

of publication of this action in the Federal Register, pursuant to 5 
U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed 
in 5 U.S.C. 553(d) is to give affected parties a reasonable time to 
adjust their behavior and prepare before the final rule takes effect. 
Where, as here, the final rule suspends requirements rather than 
imposing obligations, affected parties, such as the State of New York, 
do not need time to adjust and prepare before the rule takes effect.

IV. Final Action

    EPA is determining that the Albany-Schenectady-Troy, Jefferson 
County and Rochester 8-hour ozone nonattainment areas have attained the 
8-hour ozone standard and continue to attain the standard based on data 
through the 2007 ozone season. 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 8-hour ozone NAAQS for these areas. If 
one or more of these areas no longer attains the standard, that area or 
areas would have to submit the required SIP planning elements required 
by the CAA for each particular area. EPA is codifying this 
determination in 40 CFR 52.1683 as a new paragraph (f)(2). The existing 
text of paragraph (f) has been designated as (f)(1) without any 
changes.

V. 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 May 27, 2008. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: March 18, 2008.
Alan J. Steinberg,
Regional Administrator, Region 2.

0
Part 52 of chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart HH--New York

0
2. Section 52.1683 is amended by revising paragraph (f) to read as 
follows:


Sec.  52.1683  Control strategy: Ozone.

* * * * *
    (f) Attainment Determination. (1) 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.

[[Page 15674]]

    (2) EPA is determining that the 8-hour ozone nonattainment areas in 
New York listed below have attained the 8-hour ozone standard on the 
date listed. Under the provisions of EPA's ozone implementation rule 
(see 40 CFR 51.918), this determination suspends the reasonable further 
progress and attainment demonstration requirements of section 182(b)(1) 
and related requirements of section 172(c)(9) of the Clean Air Act for 
each of these areas as long as the area does not monitor any violations 
of the 8-hour ozone standard. If a violation of the ozone NAAQS is 
monitored this determination shall no longer apply in the area where 
the violation occurs.
    (i) Albany-Schenectady-Troy (consisting of Albany, Greene, 
Montgomery, Rensselaer, Saratoga, Schenectady, and Schoharie Counties) 
as of March 25, 2008,
    (ii) Jefferson County, as of March 25, 2008, and
    (iii) Rochester (consisting of Genesee, Livingston, Monroe, 
Ontario, Orleans and Wayne Counties) as of March 25, 2008.
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 [FR Doc. E8-6027 Filed 3-24-08; 8:45 am]
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