[Federal Register Volume 74, Number 183 (Wednesday, September 23, 2009)]
[Proposed Rules]
[Pages 48498-48504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22932]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2009-0638; FRL-8960-9]


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: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is proposing to determine that various ozone 
nonattainment areas in New York and New Jersey have attained the one-
hour and eight-hour National Ambient Air Quality Standards 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 eight-hour standard, the areas are: Buffalo-
Niagara Falls, Jamestown, Poughkeepsie and Essex County (Whiteface 
Mountain). The States requested these determinations, based upon three 
years of complete, quality-assured ambient air monitoring data and 
these areas have continued to attain these ozone standards based on 
examination of the most recent air quality data from 2006-2008. These 
data demonstrate that the one-hour and eight-hour ozone standards have 
been attained in these areas. If EPA makes these proposed 
determinations final for the one-hour standard, the areas subject to 
the one-hour standard will have completed their progress toward 
achieving the one-hour health standard. In the cases where EPA 
determines that areas 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 shall be suspended for as long as the areas 
continue to attain the eight-hour ozone standard. These proposed 
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.

DATES: Comments must be received on or before October 23, 2009. 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-2008-0638, 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-
2009-0638. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://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 http://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. What Are Today's Proposed Actions?
II. What Is the Background for These Actions?
A. When Were These Areas Designated?
B. How Does EPA Compute Whether an Area Complies With the One-hour 
Ozone Standard?
C. How Does EPA Compute Whether an Area Complies With the Eight-hour 
Ozone Standard?
D. Why Is EPA Determining if These Areas Are Attaining The Ozone 
Standards?
E. What Are the Likely Effects of These Determinations of 
Attainment?
F. How Are These Determinations of Attainment Different From a 
Redesignation to Attainment?
III. Did These Areas Attain Their Respective Ozone Standards?
IV. What is EPA Proposing?
V. Statutory and Executive Order Reviews

[[Page 48499]]

I. What Are Today's Proposed Actions?

    The EPA is proposing to determine that several areas designated as 
nonattainment for ozone have attained the standard. EPA proposes 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 be certified as attaining 
the one-hour ozone national ambient air quality standard (NAAQS).
    EPA also proposes that four ozone nonattainment areas in New York, 
namely the Buffalo-Niagara Falls, Jamestown, Poughkeepsie and the Essex 
County nonattainment areas, be certified as attaining the eight-hour 
NAAQS established in 1997 for ozone.
    All of these determinations are based upon three years of complete, 
quality-assured ambient air monitoring data for the years 2006-2008. In 
order to determine the area's air quality status, EPA reviewed ozone 
air quality data from the states, in accordance with 40 CFR 50.9 \1\ 
and EPA policy guidance, as well as data processing, data rounding and 
data completeness requirements as discussed later in this proposal. 
These data demonstrate that the ozone NAAQS have been attained in these 
areas.
---------------------------------------------------------------------------

    \1\ CFR refers to the Code of Federal Regulations, in this case 
Title 40, part 50.9.
---------------------------------------------------------------------------

    Pursuant to 40 CFR 51.918, if these proposed determinations are 
made final for the eight-hour ozone standard, the requirements for the 
state to submit attainment demonstrations and associated reasonably 
available control measures, reasonable further progress plans, 
contingency measures and any other 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. However, 
other Clean Air Act requirements unrelated to the planning for 
attainment of the standard may still be required in some of these 
areas, such as development of emission inventory data and application 
of Reasonably Available Control Technology to certain sources of air 
pollution.

II. What Is the Background for These Actions?

A. When Were These Areas Designated?

    The one-hour ozone designations in this proposed action were 
established by EPA following the enactment of the Clean Air Act (CAA) 
Amendments in 1990. Each area of the country that was designated 
nonattainment for the one-hour ozone NAAQS was classified by operation 
of law as marginal, moderate, serious, severe, or extreme depending on 
the severity of the area's air quality problem. (See CAA sections 
107(d)(1)(C) and 181(a)).
    EPA designated and classified most areas of the country under the 
eight-hour ozone NAAQS in an April 30, 2004 final rule (69 FR 23858). 
On April 30, 2004, EPA also issued a final rule (69 FR 23951) entitled 
``Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality 
Standard--Phase 1'', referred to as the Phase 1 Rule. Among other 
matters, this rule revoked the one-hour ozone NAAQS in most other areas 
of the country, effective June 15, 2005. (See, 40 CFR 50.9(b); 69 FR at 
23996; and 70 FR 44470, August 3, 2005.) The Phase 1 Rule also set 
forth how anti-backsliding principles will ensure continued progress 
toward attainment of the eight-hour ozone NAAQS by identifying which 
one-hour requirements remain applicable in an area after revocation of 
the one-hour ozone NAAQS. On December 22, 2006, the United States Court 
of Appeals for the District of Columbia Circuit (the Court) vacated the 
Phase 1 Rule. South Coast Air Quality Management Dist. v. EPA, 472 F.3d 
882 (DC Cir. 2006). Subsequently, in South Coast Air Quality Management 
Dist. v. EPA, 489 F.3d 1295 (DC Cir. 2007), in response to several 
petitions for rehearing, the Court clarified that the Phase 1 Rule was 
vacated only with regard to those parts of the rule that had been 
successfully challenged. The court upheld the portions of the Phase 1 
Rule relating to EPA's classification system under subpart 2. The 
portions of the rule that were vacated do not affect this proposed 
action.

B. How Does EPA Compute Whether an Area Complies With the One-hour 
Ozone Standard?

    Although the one-hour ozone NAAQS as promulgated in 40 CFR 50.9 
includes no discussion of specific data handling conventions, EPA's 
publicly articulated position and the approach long since universally 
adopted by the air quality management community is that the 
interpretation of the one-hour ozone standard requires rounding ambient 
air quality data consistent with the stated level of the standard, 
which is 0.12 ppm. 40 CFR 50.9(a) states that: ``The level of the 
national one-hour primary and secondary ambient air quality standards 
for ozone * * * is 0.12 parts per million. * * * The standard is 
attained when the expected number of days per calendar year with 
maximum hourly average concentrations of 0.12 parts per million * * * 
is equal to or less than 1, as determined by appendix H to this part.'' 
Thus, compliance with the NAAQS is based on comparison of air quality 
concentrations with the standard and on how many days that standard has 
been exceeded, adjusted for the number of missing days.
    For comparison with the NAAQS, EPA has clearly communicated the 
data handling conventions for the one-hour ozone NAAQS in guidance 
documents. As early as 1979, EPA issued guidance stating that the level 
of our NAAQS dictates the number of significant figures to be used in 
determining whether the standard was exceeded. The stated level of the 
standard is taken as defining the number of significant figures to be 
used in comparisons with the standard. For example, a standard level of 
0.12 ppm means that measurements are to be rounded to two decimal 
places (0.005 rounds up), and, therefore, 0.125 ppm is the smallest 
concentration value in excess of the level of the standard. (See, 
``Guideline for the Interpretation of Ozone Air Quality Standards,'' 
EPA-450/4-79-003, OAQPS No. 1.2-108, January 1979.) EPA has 
consistently applied the rounding convention in this 1979 guideline. 
See, 68 FR 19111 April 17, 2003, 68 FR 62043 October 31, 2003, and 69 
FR 21719 April 22, 2004. Then, EPA determines attainment status under 
the one-hour ozone NAAQS on the basis of the annual average number of 
expected exceedances of the NAAQS over a three-year period. (See, 60 FR 
3349 January 17, 1995 and see, also, ``General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' at 
57 FR 13506 April 16, 1992 (``General Preamble''). EPA's determination 
is based upon data that have been collected and quality-assured in 
accordance with 40 CFR 58, and recorded in EPA's Air Quality System 
(AQS) database, (formerly known as the Aerometric Information Retrieval 
System (AIRS)). To account for missing data, the procedures found in 
appendix H to 40 CFR 50 are used to adjust the actual number of 
monitored exceedances of the standard to yield the annual number of 
expected exceedances (``expected exceedance days'') at an air quality 
monitoring site. Under EPA's policies, we determine if an area has 
attained the one-hour ozone NAAQS by calculating, at each monitor, the 
average expected number of days over the standard per year (i.e., 
``average number of expected exceedance days'') during the applicable 
3-year period. See, generally, the General Preamble, 57 FR 13498, April 
16, 1992 and

[[Page 48500]]

Memorandum from D. Kent Berry, Acting Director, Air Quality Management 
Division, EPA, to Regional Air Office Directors; ``Procedures for 
Processing Bump Ups and Extensions for Marginal Ozone Nonattainment 
Areas,'' February 3, 1994. While the latter is explicitly applicable 
only to marginal areas, the general procedures for evaluating 
attainment in terms of the average number of expected exceedance days 
during the applicable 3-year period in this memorandum apply regardless 
of the initial classification of an area because all findings of 
attainment are made pursuant to the same CAA requirements in section 
181(b)(2).

C. How Does EPA Compute Whether an Area Complies With the Eight-hour 
Ozone Standard?

    As noted later in Table 2, 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 
50, Appendix I.
    The design value is the average of each year's fourth highest 
concentration, over a three year period, as described in Appendix I to 
40 CFR 50. From 40 CFR 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 shown in Table 2, all of the sites have complete data and a 
design value less than 0.085 ppm. All of the sites have met the 
requirements of Appendix I of 40 CFR 50, which 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.
    This proposed action does not deal with the ozone standard that EPA 
established in 2008. A new set of requirements will be needed after 
areas are designated as not attaining this new standard. Therefore, 
today's proposed action, which affects requirements developed for the 
1997 ozone standard, is not affected by the 2008 ozone standard, nor 
does it presume what air quality designations will be for the 2008 
ozone standard or what measures an area may need to attain that 
standard.

D. Why Is EPA Determining If These Areas Are Attaining the Ozone 
Standards?

    States have requested that EPA determine that certain areas have 
met the applicable ozone standard. Also, in the course of periodic 
reviews of air quality data, EPA has noted that several ozone 
nonattainment areas in New Jersey and New York are now attaining the 
one-hour and eight-hour standard. For the one-hour standard these areas 
and their constituent counties are: in New Jersey, Warren County of the 
Allentown-Bethlehem-Easton nonattainment area and Atlantic and Cape May 
Counties in the Atlantic City nonattainment area; in New York, Erie and 
Niagara Counties in the Buffalo-Niagara Falls area, Chautauqua County 
in the Jamestown nonattainment area, Dutchess and Orange Counties and 
the portion of Orange County\2\ in the Poughkeepsie nonattainment area; 
and the portion of Essex County above 4500 feet\3\ in the Whiteface 
Mountain area. Air quality data from the last three years from these 
areas is listed later in Table 1.
---------------------------------------------------------------------------

    \2\ For the one-hour standard, the other portion of Orange 
County is in the New York City nonattainment area. The portions of 
Orange County in each nonattainment area are listed in 40 CFR 
81.333.
    \3\ Note that at the time EPA designated one-hour ozone 
attainment areas for the 0.12 ppm standard, air monitoring data at 
the summit of Whiteface Mountain violated the air quality standard 
but an air quality monitor at the base of the mountain recorded 
attainment of the standard. Therefore, only the portion of Essex 
County above 4500 feet in the Whiteface Mountain area was designated 
as nonattainment. (See 40 CFR 81.333.)
---------------------------------------------------------------------------

    The Poughkeepsie one-hour nonattainment area was initially 
determined to attain the one-hour standard (59 FR 18967) but later 
violated the standard and was reclassified as nonattainment (59 FR 
38000). New York State did not request that EPA make a determination 
regarding the Poughkeepsie one-hour ozone nonattainment area. However, 
EPA has sufficient air quality data that the Poughkeepsie nonattainment 
area has attained the one-hour standard and is proposing to determine 
that the area is in attainment of the one-hour ozone standard.
    For the eight-hour ozone nonattainment areas, on March 19, 2007 the 
New York State Department of Environmental Conservation (New York) 
requested EPA to find that air monitoring data from 2004 to 2006 were 
showing attainment of the eight-hour ozone standard in various areas of 
upstate New York. 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 for the aforementioned 
areas. EPA determined that the Albany-Schenectady-Troy, Jefferson 
County, and Rochester nonattainment areas attained the eight-hour ozone 
standard on March 25, 2008. (See 73 FR 15672.) At that time, EPA 
deferred action on the Essex County area (the area around Whiteface 
Mountain over 1900 feet\4\) since the air quality data at that time 
were incomplete. EPA has reviewed additional air quality data since New 
York's original request and these areas are still recording attainment 
of the eight-hour ozone standard and the area in Essex County now has 
sufficient data to show it is attaining the standard, as shown later in 
Table 1. Recently, on July 30, 2009, New York submitted an updated 
petition requesting that EPA find that the Poughkeepsie, Buffalo-
Niagara Falls and Jamestown areas have attained the eight-hour ozone 
standard. The request included certified air quality data through the 
2008 ozone season.
---------------------------------------------------------------------------

    \4\ Note that at the time EPA designated these areas, two air 
monitoring monitors on Whiteface Mountain violated the air quality 
standard but other air quality monitors nearest to Whiteface 
Mountain, but sited at lower elevations than the monitors on 
Whiteface Mountain, did not violate the standard, so only the 
portion of Essex County above 1900 feet in the Whiteface Mountain 
area was designated as nonattainment. (See 40 CFR 81.333.)
---------------------------------------------------------------------------

    New Jersey, in its State Implementation Plan (SIP) Revision for the 
Attainment and Maintenance of the Ozone National Ambient Air Quality 
Standard, submitted to EPA on October 29, 2007, requested that EPA find 
that the Atlantic City one-hour nonattainment area and Warren County 
(part of the Allentown-Bethlehem-Easton area) were attaining the one-
hour standard.

E. What Are the Likely Effects of These Determinations of Attainment?

    EPA's ozone implementation rule at 40 CFR 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 1997 
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

[[Page 48501]]

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 surrounding the particular 
submissions at issue.

F. How Are These Determinations of Attainment Different From a 
Redesignation to Attainment?

    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 CAA 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. Did These Areas Attain Their Respective Ozone Standards?

    In New York's original request, 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 certified, quality-assured air quality data from 2007 and 
2008 to EPA's Air Quality System database. EPA has reviewed these data 
to determine if the areas proposed by New York are in attainment when 
the additional data from 2007 and 2008 are included. Tables 1 and 2 
summarize the ozone air quality data for areas in New York and include 
EPA's evaluation of whether these areas meet EPA's requirements for 
attaining the one- and eight-hour ozone NAAQS.
    New Jersey's air quality data from 2006 through 2008 show that 
certain parts of the state are attaining the one-hour standard. These 
data have been certified by the State of New Jersey as being accurate 
and meeting EPA's requirements for quality. They are summarized in 
Table 1, along with EPA's evaluation of whether these areas meet EPA's 
requirements for attaining the one-hour ozone NAAQS. All of these data 
are also available to the public via http://www.epa.gov/ttn/airs/airsaqs/.

                                Table 1--Fourth Highest Concentrations and Design Values for the One-Hour Ozone Standard
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Exceedences (Days over 0.124 ppm)
--------------------------------------------------------------------------------------------------------------------------------------------------------
EPA AQS ID                        Site..............      Year    Valid/  Four highest daily peak one-hour ozone    Actual  Adjusted  3-year average ***
                                                                   total                   (ppm)                                 for
                                                                 days **                                                     missing
                                                                                                                                data
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Allentown-Bethlehem-Easton, PA-NJ Area (includes Warren County, NJ)
--------------------------------------------------------------------------------------------------------------------------------------------------------
42-077-0004.....................  Allentown, PA.....      2006   214/214      .115      .100      .098      .094         0       0.0  0.0
                                                          2007   213/214      .104      .102      .090      .090         0       0.0  Attainment.
                                                          2008   214/214      .100      .098      .091      .088         0       0.0
42-095-0025.....................  Freemansburg, PA..      2006   209/214      .111      .100      .094      .091         0       0.0  0.0
                                                          2007   214/214      .105      .105      .093      .091         0       0.0  Attainment.
                                                          2008   214/214      .107      .095      .088      .086         0       0.0
42-095-8000.....................  Wilson, PA........      2006   211/214      .118      .095      .093      .093         0       0.0  0.0
                                                          2007   209/214      .105      .095      .094      .088         0       0.0  Attainment.
                                                          2008   209/214      .106      .093      .085      .084         0       0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Atlantic City, NJ
--------------------------------------------------------------------------------------------------------------------------------------------------------
34-001-0005.....................  Brigantine, NJ *..      2006   211/214      .107      .103      .102      .096         0       0.0  0.0
                                                          2007   199/214      .086      .085      .084      .083         0       0.0  Attainment.
                                                          2007   203/214      .109      .094      .089      .086         0       0.0
                                                          2008   203/214      .083      .081      .078      .078         0       0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Albany-Schenectady-Troy, NY Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-001-0012.....................  Albany, NY........      2006   211/214      .086      .081      .078      .077         0       0.0  0.0
                                                          2007   212/214      .114      .111      .091      .089         0       0.0  Attainment.
                                                          2008   198/214      .107      .096      .089      .082         0       0.0
36-083-0004.....................  Rensselaer, NY....      2006   208/214      .085      .082      .080      .079         0       0.0  0.0
                                                          2007   201/214      .099      .088      .087      .086         0       0.0  Attainment.
                                                          2008   210/214      .097      .096      .090      .083         0       0.0
36-091-0004.....................  Saratoga, NY......      2006   212/214      .099      .086      .083      .082         0       0.0  0.0
                                                          2007   202/214      .113      .096      .095      .090         0       0.0  Attainment.
                                                          2008   212/214      .100      .095      .093      .088         0       0.0
36-093-0003.....................  Schenectady, NY...      2006   214/214      .079      .076      .074      .074         0       0.0  0.0
                                                          2007   208/214      .100      .097      .081      .077         0       0.0  Attainment.
                                                          2008   211/214      .096      .092      .078      .078         0       0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 48502]]

 
                                                             Buffalo-Niagara Falls, NY Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-029-0002.....................  Amherst, NY.......      2006   210/214      .093      .092      .090      .090         0       0.0  0.0
                                                          2007   212/214      .100      .098      .095      .094         0       0.0  Attainment.
                                                          2008   210/214      .088      .087      .082      .080         0       0.0
36-063-1006.....................  Middleport, NY....      2006   183/214      .092      .088      .085      .081         0       0.0  0.0
                                                          2007   214/214      .100      .097      .092      .090         0       0.0  Attainment.
                                                          2008   212/214      .084      .081      .080      .079         0       0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Essex Co, NY Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-031-0002.....................  Summit Whiteface        2006   196/214      .081      .081      .080      .076         0       0.0  0.0
                                   Mtn., NY.
                                                          2007   197/214      .115      .107      .102      .094         0       0.0  Attainment.
                                                          2008   203/214      .097      .085      .081      .080         0       0.0
36-031-0003.....................  Base, Whiteface         2006   211/214      .094      .083      .080      .077         0       0.0  0.0
                                   Mtn., NY.
                                                          2007   212/214      .103      .092      .091      .086         0       0.0  Attainment.
                                                          2008   212/214      .087      .083      .077      .074         0       0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Jefferson Co, NY Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-045-0002.....................  Perch River, NY...      2006   213/214      .104      .094      .092      .091         0       0.0  0.0
                                                          2007   213/214      .081      .080      .079      .078         0       0.0  Attainment.
                                                          2008   213/214      .094      .091      .091      .090         0       0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Poughkeepsie, NY Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-027-0007.....................  Millbrook, NY.....      2006   205/214      .085      .076      .074      .071         0       0.0  0.0
                                                          2007   214/214      .114      .106      .096      .090         0       0.0  Attainment.
                                                          2008   210/214      .109      .099      .097      .091         0       0.0
36-071-5001.....................  Valley Central, NY      2006   214/214      .099      .093      .093      .088         0       0.0  1.0
                                                          2007   211/214      .145      .130      .116      .093         2       2.0  Attainment.
                                                          2008   213/214      .129      .102      .098      .087         1       1.0
36-079-0005.....................  Mt. Ninham, NY....      2006   199/214      .102      .096      .091      .087         0       0.0  0.33
                                                          2007   209/214      .125      .110      .107      .107         1       1.0  Attainment.
                                                          2008   207/214      .099      .097      .092      .090         0      0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
* A new site was established nearby the old site. Both sites collected data in 2007 for comparison.
** Each of the sites listed above recorded 75% or more of the required data each year and therefore met EPA's data completeness standards.
*** Attainment occurs when the number of days over 0.124 ppm, averaged over three years, is less than 1.1 days per year.
Note: Ozone concentration data are in parts per million (ppm).


                               Table 2--Fourth Highest Concentrations and Design Values for the Eight-hour Ozone Standard
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Ozone Concentration data in parts per million (ppm)
                                                                     ----------------------------------------------------------------     Attainment?
          EPA AQS ID                   Site        % Data Collection                                                  3-year average   (design value <85
                                                   2006, 7, 8 (Avg.)  Fourth highest  Fourth highest  Fourth highest  (design value)         ppb)
                                                                           2006            2007            2008              *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Jamestown, NY Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-013-0006...................  Dunkirk, NY......  96, 99, 99.......            .083            .086            .084            .084  Attaining.
                                                   (98).............
36-013-0011...................  Westfield , NY...  97, 97, 97.......            .075            .083            .072            .076  Attaining.
                                                   (97).............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Buffalo-Niagara Falls, NY Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-029-0002...................  Amherst..........  98, 99, 98.......            .083            .085            .076            .081  Attaining.
                                                   (98).............
36-063-1006...................  Middleport.......  85, 100, 100.....            .074            .082            .074            .076  Attaining.
                                                   (95).............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Essex Co (Whiteface Mtn), NY Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-031-0002...................  Summit Whiteface   88, 91, 94.......            .071            .084            .084            .079  Attaining.
                                 Mtn.              (91).............

[[Page 48503]]

 
36-031-0003...................  Base, Whiteface    98, 98, 98.......            .071            .076            .073            .073  Attaining.
                                 Mtn.              (98).............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Poughkeepsie, NY Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-027-0007...................  Millbrook........  93, 100, 100.....            .064            .078            .081            .075  Attaining.
                                                   (97).............
36-071-5001...................  Valley Central...  100, 99, 99......            .077            .083            .080            .080  Attaining.
                                                   (99).............
36-079-0005...................  Mt. Ninham.......  92, 97, 97.......            .073            .085            .079            .079  Attaining.
                                                   (95).............
--------------------------------------------------------------------------------------------------------------------------------------------------------
* A design value of 0.08 ppm is the goal for attainment of the eight-hour ozone standard promulgated in 1997. Therefore, any design value less than
  0.085 ppm shows attainment of the standard.

    As noted in Table 2, 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 50, Appendix 
I. In this case, all of the sites have a design value less than 0.085 
ppm in 2008, which includes the most recent year of air quality data. 
As noted in a previous Federal Register [February 14, 2008 at 73 FR 
8637], the monitor at the summit of Whiteface Mountain recorded 64 and 
74 percent of the required data in 2004 and 2005, respectively, which 
was not sufficient to meet EPA's data completeness standards. Air 
quality data from each of the years 2006, 2007 and 2008 meet EPA's 
quality requirements and data completeness requirements and allow EPA 
to determine this area is in attainment.
    Based on our review of the air quality data certified by the 
states, attainment of the eight-hour ozone standard has been reached in 
all of these areas in New York, and in all of the one-hour 
nonattainment areas in New York, except for the New York City 
nonattainment area. The areas in New Jersey outside the New York 
nonattainment areas have met the one-hour standard.

IV. What Is EPA Proposing?

    EPA's review of air quality data from 2006 to 2008 shows that ozone 
nonattainment areas of Buffalo-Niagara Falls, Jamestown, Essex County 
(Whiteface Mountain), and Poughkeepsie in New York and, in New Jersey, 
the Atlantic City and the Warren County portion of the Allentown-
Bethlehem-Easton areas attained the one-hour standard. Also, the 
Jamestown, Buffalo-Niagara Falls, Essex County and Poughkeepsie areas 
in New York have attained the 1997 eight-hour ozone standard.
    EPA's determinations are based on the most recent three years of 
complete, quality-assured monitoring data at all ozone monitoring sites 
in each of the areas. Specifically, data through the 2008 ozone season 
demonstrates that these areas 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, 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 1997 eight-hour ozone 
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.
    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.

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

[[Page 48504]]

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

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

    Dated: September 15, 2009.
George Pavlou,
Acting Regional Administrator, Region 2.
[FR Doc. E9-22932 Filed 9-22-09; 8:45 am]
BILLING CODE 6560-50-P