[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Rules and Regulations]
[Pages 63993-63995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28971]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2009-0638; FRL-9088-8]


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: Final rule.

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SUMMARY: The EPA is determining that various ozone nonattainment areas 
in New York and New Jersey have attained the one-hour and eight-hour 
National Ambient Air Quality Standards (NAAQS) 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 1997 eight-hour standard, the areas are Buffalo-Niagara Falls, 
Jamestown, Poughkeepsie and Essex County in New York. These 
determinations are based upon certified ambient air monitoring data 
that show each area has monitored attainment of ozone NAAQS based on 
complete, quality-assured ambient air monitoring data for the three-
year period ending in 2008. These data demonstrate that the one-hour 
and eight-hour ozone standards have been attained in these areas. These 
areas that have attained the one-hour standard have completed their 
progress toward achieving the one-hour health standard. For the areas 
that 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 are suspended for as long as the areas continue to attain the 
eight-hour ozone standard. These 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. In addition, preliminary data for 2009 show that these 
areas continue to attain the standard.

DATES: Effective Date: This rule is effective on January 6, 2010.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R02-OAR-2008-0638. 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. Final Action
IV. Statutory and Executive Order Reviews

[[Page 63994]]

I. EPA's Action

    EPA is determining 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 are 
certified as attaining the one-hour ozone national ambient air quality 
standard (NAAQS). The Buffalo-Niagara Falls, Jamestown, Poughkeepsie 
and Essex County eight-hour ozone nonattainment areas in New York have 
attained the 1997 eight-hour 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 2006 to 2008. All these data are available in the EPA Air Quality 
System (AQS) database.
    The rationale for EPA's determination is explained in the Proposed 
Rulemaking published on September 23, 2009 (74 FR 48498) and will not 
be restated here. No public comments were received on the proposal.

II. The Effect of EPA's Action

    The following areas subject to the one-hour standard have completed 
their progress toward achieving the one-hour health standard: 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.
    For the areas that attained the eight-hour standard, that is, the 
Buffalo-Niagara Falls, Jamestown, Poughkeepsie and Essex County ozone 
nonattainment areas this determination suspends the requirements for 
various State Implementation Plan (SIP) items, including, where 
applicable, the requirement to submit an attainment demonstration, a 
reasonable further progress plan, and section 172(c)(9) contingency 
measures for the eight-hour ozone NAAQS for so long as these areas 
continue to attain the ozone NAAQS. EPA makes this determination under 
the provisions of EPA's ozone implementation rule (see 40 CFR 51.918).
    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 eight-
hour ozone NAAQS until such time as EPA determines that they meet the 
CAA requirements for redesignation to attainment.
    If EPA subsequently determines that any of these areas has violated 
the current eight hour ozone standard, after notice-and-comment 
rulemaking in the Federal Register, the basis for the suspension of 
these requirements would no longer exist for that area, and the area 
that violated the eight hour standard would have to address the 
pertinent requirements.

III. Final Action

    EPA is determining the following areas have attained the 1-hour 
standard: 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. EPA is also 
determining that the following areas in New York have attained the 
eight hour standard: Buffalo-Niagara Falls, Jamestown, Poughkeepsie and 
Essex County (Whiteface Mountain). For the eight hour ozone 
nonattainment areas, 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 eight hour ozone NAAQS for these areas, where 
applicable. If an area no longer attains the standard, that area must 
submit the required SIP planning elements required by the CAA.

IV. 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

[[Page 63995]]

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 February 5, 2010. 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, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: November 24, 2009.
George Pavlou,
Acting 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 FF--New Jersey

0
2. Section 52.1582 is amended by revising paragraph (l) to read as 
follows:


Sec.  52.1582  Control strategy and regulations: Ozone.

* * * * *
    (l) Attainment Determination. EPA is determining that the 1-hour 
ozone nonattainment areas in New Jersey listed below have attained the 
1-hour ozone standard on the date listed and that the reasonable 
further progress and attainment demonstration requirements of section 
182(b)(1) and related requirements of section 172(c)(9) (contingency 
measures) of the Clean Air Act do not apply to these areas.
    (1) Philadelphia-Wilmington-Trenton (consisting of Burlington, 
Camden, Cumberland, Gloucester, Mercer, and Salem Counties) as of 
November 15, 2005. EPA also has determined, as of November 15, 2005, 
the Philadelphia-Wilmington-Trenton severe 1-hour ozone nonattainment 
area is not subject to the imposition of the section 185 penalty fees.
    (2) Atlantic City (consisting of Atlantic and Cape May Counties) as 
of January 6, 2010.
    (3) Warren County as of January 6, 2010.
* * * * *

Subpart HH--New York

0
2. Section 52.1683 is amended as follows:
0
a. By revising paragraph (f)(1).
0
b. In paragraph (f)(2)(i) by removing the comma at the end of the 
paragraph and adding a period in its place.
0
c. In paragraph (f)(2)(ii) by removing ``, and'' at the end of the 
paragraph and adding in its place a period.
0
d. By adding paragraphs (f)(2)(iv), (f)(2)(v), (f)(2)(vi), and 
(f)(2)(vii).


Sec.  52.1683  Control strategy: Ozone.

* * * * *
    (f) * * *
    (1) EPA is determining that the 1-hour ozone nonattainment areas in 
New York listed below have attained the 1-hour ozone standard on the 
date listed and that the reasonable further progress and attainment 
demonstration requirements of section 182(b)(1) and related 
requirements of section 172(c)(9) (contingency measures) of the Clean 
Air Act do not apply to these areas.
    (i) Albany-Schenectady-Troy (consisting of Albany, Greene, 
Montgomery, Rensselaer, Saratoga, and Schenectady Counties) as of 
January 6, 2010.
    (ii) Buffalo-Niagara Falls (consisting of Erie and Niagara 
Counties) as of January 6, 2010.
    (iii) Essex County as of January 6, 2010.
    (iv) Jefferson County, as of January 6, 2010.
    (v) Poughkeepsie (consisting of Dutchess, and Putnam Counties and 
northern Orange County) as of January 6, 2010.
    (2) * * *
    (iv) Buffalo-Niagara Falls (consisting of Erie and Niagara 
Counties) as of January 6, 2010.
    (v) Jamestown (consisting of Chautauqua County) as of January 6, 
2010.
    (vi) Poughkeepsie (consisting of Dutchess, Orange and Putnam 
Counties) as of January 6, 2010.
    (vii) Essex County (consisting of Whiteface Mountain) as of January 
6, 2010.
* * * * *
[FR Doc. E9-28971 Filed 12-4-09; 8:45 am]
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