[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Proposed Rules]
[Pages 73570-73575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29896]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2012-0840, FRL-9761-7]


Approval and Promulgation of Implementation Plans; New Jersey and 
New York Ozone Attainment Demonstrations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing action 
on the ozone attainment demonstration portion of comprehensive State 
Implementation Plan revisions submitted by New Jersey and New York to 
meet Clean Air Act requirements for attaining the 1997 8-hour ozone 
national ambient air quality standard. EPA is proposing to approve New 
Jersey's and New York's demonstration of attainment of the 1997 8-hour 
ozone standard as they relate to their portions of three moderate 
nonattainment areas; the New York-Northern New Jersey-Long Island, NY-
NJ-CT area, the Philadelphia-

[[Page 73571]]

Wilmington-Atlantic City, PA-NJ-MD-DE area, and the Poughkeepsie area.

DATES: Comments must be received on or before January 10, 2013.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2012-0840, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [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-
2012-0840. 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 www.regulations.gov or email. 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 email comment 
directly to EPA without going through www.regulations.gov your email 
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.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 
25th Floor, New York, New York 10007-1866. EPA requests, if at all 
possible, that you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8:30 a.m. 
to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Robert F. Kelly, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866. The telephone number is (212) 637-3709. Mr. Kelly 
can also be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, wherever 
``Agency,'' ``we,'' ``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. What action is EPA proposing?
II. What is the background for EPA's proposed action?
    A. History and Time Frame of New Jersey and New York Attainment 
Demonstration SIPs
    B. Moderate Area Requirements
III. What was included in New Jersey's and New York's proposed SIP 
submittals?
    A. New Jersey's SIP Submittal and EPA's Actions
    B. New York's SIP Submittal and EPA's Actions
IV. What is EPA's basis for proposing to approve the attainment 
demonstrations?
    A. Air Quality Data and Attainment Determinations
    B. Components of the Modeled Attainment Demonstration
    C. EPA's Evaluation
V. What is EPA's conclusion?
VI. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    The Environmental Protection Agency (EPA) is proposing action on 
the ozone attainment demonstration portion of comprehensive State 
Implementation Plan (SIP) revisions submitted by New Jersey and New 
York to meet Clean Air Act (Act or CAA) requirements for attaining the 
0.08 parts per million (ppm) 8-hour ozone national ambient air quality 
standards (NAAQS or standard).\1\ EPA is proposing to approve New 
Jersey's and New York's SIP revisions which demonstrate attainment of 
the 1997 8-hour ozone standard as they relate to their portions of 
three moderate nonattainment areas:
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    \1\ Unless otherwise specifically noted in the action, 
references to the 8-hour ozone standard are to the 0.08 ppm ozone 
standard promulgated in 1997.
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     The New York-Northern New Jersey-Long Island, NY-NJ-CT 
area, also called the New York City Metropolitan area,
     The Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE 
area, also called the Philadelphia area, and
     The Poughkeepsie area.
    The EPA is proposing to approve New Jersey's and New York's 8-hour 
ozone attainment demonstration SIP revisions because the EPA has 
determined that the New York City Metropolitan, Philadelphia, and 
Poughkeepsie moderate nonattainment areas have attained the ozone NAAQS 
by their respective attainment deadlines. This proposed determination 
is based on complete quality assured and certified ambient air 
monitoring data from 2007 to 2011 that show the area has monitored 
attainment of the 1997 8-hour ozone NAAQS during this monitoring 
period.

II. What is the background for EPA's proposed action?

A. History and Time Frame of New Jersey and New York Attainment 
Demonstration SIPs

    In 1997, EPA revised the health-based NAAQS for ozone, setting it 
at 0.08 ppm averaged over an 8-hour time frame. EPA set the 8-hour 
ozone standard based on scientific evidence demonstrating that ozone 
causes adverse health effects at lower ozone concentrations and over 
longer periods of time than was understood when the pre-existing 1-hour 
ozone standard was set. EPA determined that the 8-hour standard would 
be more protective of human health, especially with regard to children 
and adults who are active outdoors, and individuals with a pre-existing 
respiratory disease, such as asthma.
    On April 30, 2004 (69 FR 23858), EPA finalized its attainment/
nonattainment designations for areas across the country with respect to 
the 8-hour ozone standard. These actions became effective on June 15, 
2004. Among those

[[Page 73572]]

nonattainment areas are the New York City Metropolitan area, the 
Philadelphia Area and the Poughkeepsie area. The New York City 
Metropolitan nonattainment area is composed of: the Bergen, Essex, 
Hudson, Hunterdon, Middlesex, Monmouth, Morris, Passaic, Somerset, 
Sussex, Union, and Warren Counties in New Jersey; the Bronx, Kings, 
Nassau, New York, Queens, Richmond, Rockland, Suffolk, and Westchester 
Counties in New York; and the Fairfield, Middlesex and New Haven 
Counties in Connecticut. The Philadelphia Area includes the entire 
State of Delaware; Cecil County in Maryland; Atlantic, Burlington, 
Camden, Cape May, Cumberland, Gloucester, Mercer, Ocean, and Salem 
Counties in New Jersey; and Bucks, Chester, Delaware, Montgomery, and 
Philadelphia Counties in Pennsylvania. The Poughkeepsie nonattainment 
area includes Dutchess, Orange and Putnam Counties in New York. See 40 
CFR 81.307, 81.308, 81.321, 81.331, 81.333, and 81.339.
    Also, on April 30, 2004 (69 FR 23951), EPA promulgated the Phase 1 
8-hour ozone Implementation Rule which provided how areas designated 
nonattainment for the 1997 8-hour ozone standard would be classified. 
These designations triggered the Act's requirements under section 
182(b) for moderate nonattainment areas, including a requirement to 
submit an attainment demonstration. EPA's Phase 2 8-hour ozone 
implementation rule, published on November 29, 2005 (70 FR 71612) 
(Phase 2 Rule) specifies that states must submit attainment 
demonstrations for their nonattainment areas to the EPA by no later 
than three years from the effective date of designation, that is, by 
June 15, 2007. 40 CFR 51.908(a).
    Although the focus of this proposed rulemaking action is on the 
attainment demonstrations for the 1997 8-hour ozone standard, we note 
that EPA has subsequently revised the ozone standard. On March 12, 
2008, EPA revised both the primary and secondary NAAQS for ozone to a 
level of 0.075 ppm (annual fourth-highest daily maximum 8-hour average 
concentration, averaged over 3 years) to provide increased protection 
of public health and the environment.\2\ The 2008 ozone NAAQS retain 
the same general form and averaging time as the 0.08 ppm NAAQS set in 
1997, but are set at a more protective level. State emission reduction 
efforts already underway to meet the 1997 8-hour ozone standard will 
continue with implementation of the 2008 ozone NAAQS.
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    \2\ See 73 FR 16436; March 27, 2008. For a detailed explanation 
of the calculation of the 3-year 8-hour average, see 40 CFR part 50, 
Appendix I.
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B. Moderate Area Requirements

    EPA's November 29, 2005 Phase 2 Rule addresses, among other things, 
the control obligations that apply to areas designated nonattainment 
for the 1997 8-hour NAAQS. The Phase 1 and Phase 2 Rules outline the 
SIP requirements and deadlines for various requirements in areas 
designated as moderate nonattainment. For such areas, modeling and 
attainment demonstrations with projection year emission inventories 
were due by June 15, 2007, along with reasonable further progress 
plans, reasonably available control technology (RACT), reasonably 
available control measures (RACM), motor vehicle emissions budgets and 
contingency measures (40 CFR 51.908(a), and (c) 59.910, 59.912). This 
proposed action addresses New Jersey's and New York's demonstration of 
attainment of the 1997 8-hour ozone standard. Moderate areas are 
required to attain the 1997 8-hour ozone NAAQS by no later than six 
years after designation, or June 15, 2010. See 40 CFR 51.903. In order 
to demonstrate attainment by June 2010, the area must adopt and 
implement all controls necessary for attainment by the beginning of the 
2009 ozone season and demonstrate that the level of the standard will 
be met during the 2009 ozone season. The Philadelphia Area qualified 
for a one-year extension of its attainment date, based on the complete, 
certified ambient air quality data for the 2009 ozone season. On 
January 21, 2011, EPA approved a one-year extension of the Philadelphia 
Area's attainment date, from June 15, 2010 to June 15, 2011. See 76 FR 
3838 and 76 FR 3840.

III. What was included in New Jersey's and New York's proposed SIP 
submittals?

A. New Jersey's SIP Submittal and EPA's Actions

    After completing the appropriate public notice and comment 
procedures, New Jersey made a series of submittals in order to address 
the Act's 8-hour ozone attainment requirements. On August 1, 2007, New 
Jersey submitted its RACT rules, which included a determination that 
many of the RACT rules currently contained in its SIP meet the RACT 
obligation for the 8-hour standard, and also included commitments to 
adopt revisions to several regulations where the State identified more 
stringent emission limitations that it believed should be considered 
RACT. On October 29, 2007, New Jersey submitted to EPA a comprehensive 
8-hour ozone SIP to address the Act's 8-hour ozone attainment 
requirements for the New Jersey portions of the New York City 
Metropolitan and the Philadelphia nonattainment areas. New Jersey's 
proposed SIP included, among other elements, attainment demonstrations, 
reasonable further progress (RFP) plans for 2008 and 2009, reasonably 
available control measures analyses for both areas, contingency 
measures, on-road motor vehicle emission budgets, and general 
conformity emission budgets. Finally, as part of the RACT evaluation, 
on December 14, 2007, New Jersey submitted to EPA an assessment of how 
it planned to address EPA's revised Control Technique Guidelines. New 
Jersey's attainment demonstration SIP revisions are the only subject of 
this proposed rulemaking.
    EPA has taken several actions on New Jersey's SIP revisions to 
address the requirements of the 1997 8-hour ozone standard:
     On July 17, 2008 (73 FR 41068), EPA made a finding that 
the motor vehicle emissions budgets for the New Jersey portions of the 
New York City Metropolitan area and the Philadelphia area associated 
with the respective reasonable further progress and attainment 
demonstrations are adequate for transportation conformity purposes.
     On May 15, 2009 (74 FR 22837), EPA approved the RFP plans, 
RFP contingency measures, and RACM analyses from New Jersey.
     On August 3, 2010 (75 FR 45483) and on December 22, 2010 
(75 FR 80340), EPA approved SIP revisions for numerous statewide RACT 
rules to control emissions from sources of volatile organic compounds, 
nitrogen oxides, particulate matter and sulfur dioxide to address the 
RACT requirements for the 1997 8-hour ozone standard.
    New Jersey has submitted all required SIP revisions to address the 
1997 8-hour ozone standard, and has implemented all of the emission 
control measures, including contingency measures, contained in these 
SIP revisions. EPA's approval of these SIP revisions, in combination 
with this proposed rulemaking action to approve the attainment 
demonstrations will serve to completely address New Jersey's 
requirements under the 1997 8-hour ozone standard.

B. New York's SIP Submittal and EPA's Actions

    After completing the appropriate public notice and comment 
procedures,

[[Page 73573]]

New York made a series of submittals in order to address the Act's 8-
hour ozone attainment requirements. On September 1, 2006, New York 
submitted its state-wide 8-hour ozone RACT SIP, which included a 
determination that many of the RACT rules currently contained in its 
SIP meet the RACT obligation for the 8-hour standard and also included 
commitments to adopt revisions to several regulations where the State 
identified more stringent emission limitations that it believed should 
now be considered RACT. On February 8, 2008, New York submitted two 
comprehensive 8-hour ozone SIPs--one for the New York City Metropolitan 
area, entitled, ``New York SIP for Ozone--Attainment Demonstration for 
New York Metro Area'' and one for the Poughkeepsie nonattainment area, 
entitled, ``New York SIP for Ozone--Attainment Demonstration for 
Poughkeepsie, NY Area.'' On December 28, 2009 and January 26, 2011, New 
York supplemented its February 8, 2008 submittal. The submittals 
included the 2002 base year emissions inventory, projection year 
emissions, attainment demonstrations, RFP plans, RACM analysis, RACT 
analysis, contingency measures and on-road motor vehicle emission 
budgets. New York's attainment demonstration SIP revisions are the only 
subjects of this proposed rulemaking.
    EPA has taken several actions on New York's SIP revisions to 
address the requirements of the 1997 8-hour ozone standard:
     On May 28, 2010 (75 FR 29897), EPA approved SIP revisions 
for several of New York's RACT rules for emissions of volatile organic 
compounds to address the RACT requirements for the 1997 8-hour ozone 
standard.
     On July 13, 2010 (75 FR 43066), EPA conditionally approved 
New York's 8-hour ozone statewide RACT analysis and the 8-hour ozone 
RACM analysis for the New York City Metropolitan area. The condition 
was that New York submits to EPA the RACT rules committed to in New 
York's RACT plan, which ultimately New York did submit.
     On August 2, 2010 (75 FR 45057), EPA made the finding that 
the motor vehicle emissions budgets for the New York portions of the 
New York City Metropolitan area and the Poughkeepsie area associated 
with the respective reasonable further progress and attainment 
demonstrations are adequate for transportation conformity purposes.
     On August 18, 2011 (76 FR 51264), EPA approved the 2002 
statewide base year emissions inventory and the projection year 
emissions, the motor vehicle emissions budgets used for planning 
purposes, the reasonable further progress plan, and the contingency 
measures as they relate to the New York City Metropolitan area.
     On March 8, 2012 (77 FR 13974), EPA approved SIP revisions 
for several of New York's RACT rules for emissions of volatile organic 
compounds to address the conditional approval of New York's RACT plan 
to meet the requirements for the 1997 8-hour ozone standard.
    New York has submitted all required SIP revisions to address the 
1997 8-hour ozone standard, and has implemented all of the emission 
control measures, including contingency measures, contained in these 
SIP revisions. EPA's approval of these SIP revisions, in combination 
with this proposed rulemaking action to approve the attainment 
demonstrations for the 1997 8-hour ozone standard will serve to 
completely address New York's requirements under the 1997 8-hour ozone 
standard.

IV. What is EPA's basis for proposing to approve the attainment 
demonstrations?

A. Air Quality Data and Attainment Determinations

    With respect to the New York City Metropolitan, Philadelphia, and 
Poughkeepsie areas, EPA has evaluated the ambient air quality 
monitoring data and has determined that all three areas attained the 8-
hour ozone standard by the required attainment date.
    In a June 18, 2012 Federal Register notice (77 FR 36163), EPA made 
several determinations, including two determinations regarding the 1997 
8-hour ozone NAAQS for the New York City Metropolitan moderate 
nonattainment area. (Note EPA published a technical correction to the 
June 18, 2012 action on August 9, 2012 (77 FR 47533)). First, EPA made 
a clean data determination that the New York City Metropolitan area had 
attained the 1997 8-hour ozone NAAQS. This determination was based upon 
complete, quality assured and certified ambient air monitoring data 
that showed the New York City Metropolitan area had monitored 
attainment of the 1997 8-hour ozone NAAQS for the 2007-2009 and 2008-
2010 monitoring periods. Ambient air monitoring data for the 2009-2011 
monitoring period is consistent with continued attainment. Second, 
pursuant to section 181(b)(2)(A) of the CAA, EPA made a determination 
of attainment that the New York City Metropolitan area had attained the 
1997 8-hour ozone NAAQS by its attainment date of June 15, 2010.
    In a March 26, 2012 Federal Register notice (77 FR 17341), EPA made 
two determinations regarding the 1997 8-hour ozone NAAQS for the 
Philadelphia moderate nonattainment area. First, EPA made a clean data 
determination that the Philadelphia area had attained the 1997 8-hour 
ozone NAAQS. This determination was based upon complete, quality 
assured and certified ambient air monitoring data that showed the 
Philadelphia area had monitored attainment of the 1997 8-hour ozone 
NAAQS for the 2008-2010 monitoring period. Ambient air monitoring data 
for the 2009-2011 monitoring period is consistent with continued 
attainment. Second, pursuant to section 181(b)(2)(A) of the CAA, EPA 
made a determination of attainment that the Philadelphia area had 
attained the 1997 8-hour ozone NAAQS by its attainment date of June 15, 
2011.
    On December 7, 2009 (74 FR 63993), EPA made a clean data 
determination for the Poughkeepsie area and announced the attainment 
determination in the Federal Register. The clean data determinations 
were based on 2006-2008 quality-assured and certified ozone monitoring 
data for the Poughkeepsie area. Based on complete, quality-assured and 
certified ozone monitoring data since the 2006-2008 monitoring period, 
the Poughkeepsie area continues to show attainment through 2011, and 
with preliminary ozone data through 2012.
    While not required, New Jersey and New York requested EPA to make 
these determinations in certain circumstances. New Jersey requested EPA 
to make a determination that the New York City Metropolitan area 
attained the 8-hour ozone NAAQS in a letter dated January 19, 2011. New 
York requested EPA to make determinations that the New York City 
Metropolitan area and the Poughkeepsie area have attained the 8-hour 
ozone NAAQS in letters dated June 16, 2011 and July 30, 2009, 
respectively. Copies of these rulemakings containing the determinations 
of attainment and the clean data determinations are included in the 
Docket (EPA-R02-OAR-2012-0840) and available at www.regulations.gov. 
The reader is referred to these other rulemakings for additional 
information regarding all of the complete, quality-assured and 
certified ozone monitoring data which served as the basis for these 
determinations.
    EPA is aware that preliminary ambient air quality monitoring data 
for 2012 may indicate that the New York City Metropolitan and 
Philadelphia areas are no longer attaining the 1997 8-

[[Page 73574]]

hour ozone NAAQS, while the Poughkeepsie area continues to attain the 
8-hour ozone NAAQS. However, 2012 monitoring data is not relevant to 
this proposed rulemaking on SIP revisions which demonstrate how the 
states met their plan to attain the 1997 8-hour ozone standard by the 
June 15, 2010 attainment date (June 15, 2011 for the Philadelphia 
area). Based on data through 2011, these areas are attaining the 1997 
8-hour ozone NAAQS. EPA has a continuing obligation to review the air 
quality data each year to determine whether areas are meeting the NAAQS 
and will continue to conduct that review in the future after data is 
complete, quality-assured, certified and submitted to EPA.
    Lastly, pursuant to 40 CFR 51.918, these determinations suspend the 
requirements for various SIP items, including, the requirement to 
submit an attainment demonstration, an RFP plan, and section 172(c)(9) 
contingency measures for the eight-hour ozone NAAQS for so long as the 
area continues to attain the ozone NAAQS. However, section 110(k)(2) of 
the CAA requires EPA to take action on any administratively complete 
SIP revision submittal within 12 months of the SIP being deemed 
complete. Therefore, while the clean data determinations suspend the 
state's obligation to submit the attainment demonstration SIP revision, 
the determinations do not suspend EPA's obligation to take action on 
the SIP revision if it has been submitted by the state and deemed to be 
complete. EPA was sued by Sierra Club to take final action on these 
particular attainment demonstration SIP revisions ((see Sierra Club v. 
Jackson, Civil Action No. 11-2180-RBW) (D.D.C.)). EPA is proposing to 
take such final action in this notice. The proposed rulemaking is 
intended to address EPA's obligations.

B. Components of the Modeled Attainment Demonstrations

    Section 110(a)(2)(k) of the Act requires states to prepare air 
quality modeling to demonstrate how they will meet ambient air quality 
standards. EPA determined that states must use photochemical grid 
modeling, or any other analytical method determined by the 
Administrator to be at least as effective, to demonstrate attainment of 
the ozone health-based standard in areas classified as ``moderate'' or 
above, and to do so by the required attainment date. See 40 CFR 
51.908(c). EPA requires an approvable attainment demonstration, showing 
that attainment will occur by the attainment deadline, using air 
quality modeling that meets EPA's guidelines and a `weight of evidence' 
analysis that uses a variety of information to determine if the results 
of the modeling analysis are supported by supplemental information or 
need to be modified.
    New Jersey submitted an attainment demonstration for the New York 
City Metropolitan and Philadelphia areas that included a modeling 
analysis and a two-part weight of evidence analysis, which the State 
said would result in attainment by the attainment date. The modeling 
analysis predicted continued nonattainment by 2009. The first part of 
the weight of evidence analysis included adjustments to the modeling 
results to account for model bias. The second part of the weight of 
evidence analysis included an evaluation of additional factors that 
would support a conclusion that attainment will be reached by 2009, 
despite the conclusion of the adjusted modeling analysis that predicted 
continued nonattainment by 2009.
    New York submitted an attainment demonstration for the New York 
City Metropolitan and Poughkeepsie areas that included a modeling 
analysis and a weight of evidence analysis. With respect to the New 
York City Metropolitan area, New York's modeling analysis predicted 
continued nonattainment by 2009. Based on the measured ozone levels at 
the time (2007), New York did not support a weight of evidence 
conclusion that attainment will be reached by 2009. With respect to the 
Poughkeepsie area, New York's modeling analysis predicted attainment by 
2009.
    EPA determined that the photochemical grid modeling conducted by 
the states was consistent with EPA's guidelines and the model performed 
acceptably. Taking into account that EPA made clean data determinations 
and determinations of attainment of the 1997 8-hour ozone NAAQS 
attainment date for the New York City Metropolitan, Philadelphia and 
Poughkeepsie areas, EPA is proposing to approve New Jersey's and New 
York's demonstrations of attainment of the 1997 8-hour ozone standard 
for these three moderate nonattainment areas.
    In addition, as noted earlier, EPA has already approved the RFP 
plans for the New York City Metropolitan and Philadelphia areas. Given 
the fact that these areas attained the ozone standard by the attainment 
date suggests that the RFP plans may have been sufficient for the 
moderate nonattainment areas to reach attainment. These RFP plans 
contained corresponding emission control measures and the states 
developed and adopted additional control measures to ensure attainment 
of the ozone standard by the attainment date. All of the control 
measures that were relied on for attainment and contained in the RFP 
plans were submitted as SIP revisions and approved by EPA. Therefore, 
the demonstration of attainment for the New York City Metropolitan, 
Philadelphia and Poughkeepsie areas in New Jersey and New York SIPs are 
approvable because New Jersey and New York each adopted all of the 
control measures in its ozone plans.

C. EPA's Evaluation

    In summary, the basic photochemical grid modeling used by New 
Jersey and New York in its SIP submittal meets EPA's guidelines and, 
when used with the methods recommended in EPA's modeling guidance, is 
acceptable to EPA. Air quality data through 2011 supports the states' 
conclusions that the areas will demonstrate attainment of the 8-hour 
ozone standard by the attainment date. The purpose of the attainment 
demonstration is to show how the areas will meet the standard by the 
attainment date. All the control measures included in the attainment 
demonstration SIPs have already been adopted, submitted, approved and 
implemented. Based on (1) the states following EPA's modeling guidance, 
(2) the air quality data through 2011, (3) the areas attaining the 
standard by the attainment date, and (4) the implemented SIP approved 
control measures, EPA is proposing to approve the New Jersey and New 
York attainment demonstration SIP revisions.

V. What is EPA's conclusion?

    EPA has evaluated New Jersey's and New York's submittals for 
consistency with the Act, EPA regulations, and EPA policy. EPA has 
evaluated the information provided by New Jersey and New York and has 
considered all other information it deems relevant to attainment of the 
1997 8-hour ozone standard, i.e., clean data determinations, 
determinations that these areas attained the standard by the applicable 
attainment date, statewide RACT analysis approval, reasonable further 
progress plan approvals (including all applicable control strategy 
regulations), continued attainment of the 1997 8-hour ozone standard 
based on quality assured and certified monitoring data, and the 
implementation of the more stringent 2008 8-hour ozone standard. EPA is 
therefore proposing to approve the attainment demonstrations for the 
New York City Metropolitan, Philadelphia and Poughkeepsie 1997 8-hour 
ozone moderate nonattainment areas.

[[Page 73575]]

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: November 26, 2012.
Judith Enck,
Regional Administrator, Region 2.
[FR Doc. 2012-29896 Filed 12-10-12; 8:45 am]
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