[Federal Register Volume 83, Number 191 (Tuesday, October 2, 2018)]
[Rules and Regulations]
[Pages 49492-49495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21329]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2018-0422; FRL-9984-81--Region 2]


Approval and Promulgation of Air Quality Implementation Plans; 
New York; Determination of Attainment of the 2008 8-Hour Ozone National 
Ambient Air Quality Standard for the Jamestown, New York Marginal 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a 
determination that the Jamestown, New York Marginal Nonattainment Area 
(Jamestown Area or Area) has attained the 2008 8-hour ozone National 
Ambient Air Quality Standard (NAAQS). This determination is based upon 
complete, quality-assured, and certified ambient air monitoring data 
that shows the Area has monitored attainment of the 2008 8-hour ozone 
NAAQS for both the 2012-2014 and 2015-2017 monitoring periods. This 
action does not constitute a redesignation to attainment. The Jamestown 
Area will remain nonattainment for the 2008 8-hour ozone NAAQS until 
such time as EPA determines that the Jamestown Area meets the Clean Air 
Act (CAA) requirements for redesignation to attainment, including an 
approved maintenance plan. This action is being taken under the CAA.

DATES: This final rule is effective on November 1, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA-R02-OAR-2018-0422. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available,

[[Page 49493]]

e.g., Confidential Business Information (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 electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, (212) 637-3381, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On March 12, 2008, EPA revised both the primary and secondary NAAQS 
for ozone to a level of 0.075 parts per million (ppm) (annual fourth-
highest daily maximum 8-hour average concentration, averaged over three 
years) to provide increased protection of public health and the 
environment. 73 FR 16436 (March 27, 2008).\1\ The 2008 ozone NAAQS 
retains the same general form and averaging time as the 0.08 ppm NAAQS 
set in 1997, but is set at a more protective level. On May 21, 2012 (77 
FR 30088), effective July 20, 2012, EPA designated as nonattainment any 
area that was violating the 2008 8-hour ozone NAAQS based on the three 
most recent years (2008-2010) of air monitoring data. The Jamestown 
Area (specifically, Chautauqua County) was designated as a marginal 
ozone nonattainment area. See 40 CFR 81.333.
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    \1\ 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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    Marginal areas designated in the May 21, 2012 rule are required to 
attain the 2008 8-hour ozone NAAQS by the applicable deadline of July 
20, 2015. See 40 CFR 51.903. On May 4, 2016, EPA determined that 
complete, quality-assured, and certified air quality monitoring data 
from the 2012-2014 monitoring period indicated that the Jamestown Area 
attained the 2008 8-hour ozone NAAQS by that attainment date. See 81 FR 
26697.
    Under the provisions of EPA's ozone implementation rule (40 CFR 
51.918), if EPA also issues a determination (as it is doing here) that 
an area is attaining the relevant standard through a rulemaking that 
includes public notice and comment (known informally as a Clean Data 
Determination), the requirements for a State to submit certain required 
planning SIPs related to attainment of the eight-hour NAAQS, such as 
attainment demonstrations, reasonable further progress plans and 
contingency measures, shall be suspended. EPA's action only suspends 
the requirements to submit the SIP revisions discussed above.\2\
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    \2\ For more information on the EPA's Clean Data Policy, see 
https://www.epa.gov/ozone-pollution/redesignation-and-clean-data-policy-cdp for documents such as the Memorandum from John S. Seitz, 
Director, Office of Air Quality Planning and Standards, ``Reasonable 
Further Progress, Attainment Demonstration, and Related Requirements 
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air 
Quality Standard'' (May 10, 1995).
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    This suspension remains in effect until such time, if ever, that 
EPA (i) redesignates the area to attainment, at which time those 
requirements no longer apply, or (ii) subsequently determines that the 
area has violated the 2008 8-hour ozone NAAQS. Although these 
requirements are suspended, if the State provides these submissions to 
EPA for review and approval at any time, EPA is not precluded from 
acting upon them.

II. EPA's Evaluation

    An area may be considered to be attaining the 2008 8-hour ozone 
NAAQS if there are no violations, as determined in accordance with 40 
CFR part 50, based on three complete, consecutive calendar years of 
quality-assured ambient air monitoring data. Under EPA regulations at 
40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year 
average of the annual fourth-highest daily maximum 8-hour average ozone 
concentrations at an ozone monitor is less than or equal to 0.075 ppm. 
See 40 CFR part 50, appendix P. This 3-year average is referred to as 
the design value. When the design value is less than or equal to 0.075 
ppm at each monitor within the area, then the area is attaining the 
NAAQS. Also, the data meets the regulatory completeness requirement 
when the average percent of days with valid ambient monitoring data is 
greater than or equal to 90 percent (%), and no single year has less 
than 75% data completeness as determined in appendix P of 40 CFR part 
50. The data must be collected and quality-assured in accordance with 
40 CFR part 58, and recorded in the EPA Air Quality System (AQS).
    As was discussed in EPA's July 20, 2018 (83 FR 34506) proposal, EPA 
has reviewed the complete, quality-assured, and certified ozone ambient 
air monitoring data for the monitoring periods for both 2012-2014 and 
2015-2017 for the Jamestown Area. For both monitoring periods, the 
design values for the Jamestown monitor in Chautauqua County are less 
than or equal to 0.075 ppm, and the monitor meets the data completeness 
requirements. Based on the 2012-2014 data from the AQS database and 
consistent with the requirements contained in 40 CFR part 50, EPA has 
concluded that this Area attained the 2008 8-hour ozone NAAQS. In 
addition, complete, quality-assured, and certified data through the 
2017 ozone season demonstrate that the area continues to attain the 
standard.

III. Comments Received in Response to EPA's Proposed Action

    On July 20, 2018 (83 FR 34506), EPA proposed to make a 
determination that the Jamestown Area has attained the 2008 8-hour 
ozone NAAQS. In response to EPA's July 20, 2018 proposed determination 
for the Jamestown Area, EPA received several comments from the public 
during the 30-day public comment period. After reviewing the comments, 
EPA has determined that most of the comments are outside the scope of 
our proposed action or fail to identify any material issue 
necessitating a response. The comments do not raise issues germane to 
EPA's proposed action. For this reason, EPA will not provide a specific 
response to those comments. Those comments may be viewed under Docket 
ID Number EPA-R02-OAR-2018-0422 on the http://www.regulations.gov 
website. EPA did however receive one comment that is germane to EPA's 
proposed action.
    Comment: Please consider keeping plans in place to monitor and 
follow up with the ozone level in Jamestown. Keeping a close eye on 
data and holding people accountable for meeting a standard of 0.075 ppm 
ozone may be more likely to continue the downward trend in ozone than 
if we just stop communicating with local leadership on this issue.
    Response: This determination of attainment is not equivalent to a 
redesignation under section 107(d)(3) of the CAA. The designation 
status of the Jamestown Area will remain nonattainment for the 2008 8-
hour ozone NAAQS until such time as EPA determines that the Area meets 
the CAA requirements for redesignation to attainment, including an 
approved maintenance plan. While this determination of attainment for 
the Jamestown Area suspends the reasonable further progress and 
attainment demonstration requirements of section 182(b)(1) and related 
requirements of section 172(c)(9) of the CAA, it does not suspend or 
rescind the requirements of CAA sections 110(a)(2)(B) and (I) for 
monitoring and implementing the various ozone related emissions 
reduction control strategies that have been adopted by New York State 
and approved by EPA over the years. Therefore, the New York State

[[Page 49494]]

Department of Environmental Conservation (NYSDEC) and EPA will continue 
to assess the ozone ambient air monitoring data for the Jamestown 
monitor in Chautauqua County. If certified air quality data indicates 
issues with continuing attainment of the 2008 ozone NAAQS, the EPA 
will, to the extent necessary, work with NYSDEC and use appropriate CAA 
authorities to address those air quality issues.

IV. Final Action

    EPA is finalizing a determination that the Jamestown Area has 
attained the 2008 8-hour ozone NAAQS. This determination (informally 
known as a Clean Data Determination) is based upon complete, quality 
assured, and certified ambient air monitoring data that show the 
Jamestown Area has monitored attainment of the 2008 8-hour ozone NAAQS 
for the 2012-2014 and 2015-2017 monitoring periods. Complete and 
quality assured and certified data for these periods demonstrate that 
the area continues to attain the standard during both time periods. As 
provided in 40 CFR 51.918, EPA's determination that this area has 
attained the 8-hour ozone standard suspends the requirements under CAA 
section 182(b)(1) for submission of a reasonable further progress plan 
and ozone attainment demonstration. In addition, this final 
determination means the requirements of CAA section 172(c)(9) 
concerning submission of contingency measures and any other planning 
SIP relating to attainment of the 2008 8-hour ozone NAAQS shall be 
suspended for so long as the Jamestown Area continues to attain the 
2008 8-hour ozone NAAQS. Although these requirements would be 
suspended, EPA would not be precluded from acting upon these elements 
at any time if submitted to EPA for review and approval.
    Finalizing this determination does not constitute a redesignation 
of the Jamestown Area to attainment for the 2008 8-hour ozone NAAQS 
under CAA section 107(d)(3). This determination of attainment also does 
not involve approving any maintenance plan for the Jamestown Area and 
does not determine that the Jamestown Area has met all the requirements 
for redesignation under the CAA, including that the attainment be due 
to permanent and enforceable measures. Therefore, the designation 
status of the Jamestown Area will remain nonattainment for the 2008 8-
hour ozone NAAQS until such time as EPA takes final rulemaking action 
to determine that such Area meets the CAA requirements for 
redesignation to attainment.

V. Statutory and Executive Order Reviews

    This action finalizes an attainment determination based on air 
quality data, resulting in the suspension of certain Federal 
requirements. The action would not impose any additional requirements. 
For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because this action is not significant under 
Executive Order 12866;
     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 (Pub. L. 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 CAA; 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, the attainment determination does not apply on any 
Indian reservation land or in any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action 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 December 3, 2018. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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 CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

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

    Dated: September 19, 2018.
Peter D. Lopez,
Regional Administrator, Region 2.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart HH--New York

0
2. In Sec.  52.1683, add paragraph (q) to read as follows:


Sec.  52.1683  Control strategy: Ozone.

* * * * *
    (q) EPA is determining that the Jamestown marginal nonattainment 
area

[[Page 49495]]

(consisting of Chautauqua County) has attained the 2008 8-hour ozone 
national ambient air quality standard (NAAQS). This determination 
(informally known as a Clean Data Determination) is based upon 
complete, quality assured, and certified ambient air monitoring data 
that show the Jamestown Area has monitored attainment of the 2008 8-
hour ozone NAAQS for the 2012-2014 and 2015-2017 monitoring periods. 
Under the provisions of EPA's ozone implementation rule (see 40 CFR 
51.918), this determination suspends the reasonable further progress 
and attainment demonstration requirements of section 182(b)(1) and 
related requirements of section 172(c)(9) of the Clean Air Act for this 
area as long as the area does not monitor any violations of the 8-hour 
ozone standard. If a violation of the ozone NAAQS is monitored in this 
area, this determination shall no longer apply.

[FR Doc. 2018-21329 Filed 10-1-18; 8:45 am]
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