ANDREW M. CUOMO 

GOVERNOR 

STATE OF NEW YORK 

DEPARTMENT OF ENVIRONMENTAL CONSERVATION 

ALBANY, N EW YORK 12233- 1010 

Honorable Lisa P. Jackson 

Administrator 

United States Environmental Protection Agency 

USEP A Headquarters - Mail Code: 1 l O 1 A 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

Dear Administrator Jackson: 

JUN 2 0 2012 

JOE MARTENS 

COMMISSIONER 

I am writing to you concerning an issue of the utmost importance to the State of New York, 

attainment of the ozone standards. The United States Envirorunental Protection Agency (EPA) 

recently promulgated a final rule designating the New York-N. New Jersey - Long Island, NYNJ-CT area (New York City metropolitan area) and Jamestown (Chautauqua County) as 

nonattainment of the 2008 ozone national ambient air quality standard (NAAQS). 1 I am asking 

EPA to take immediate action to address the transport of pollutants that contribute significantly 

to nonattairunent in New York. In addition, I am requesting that you reclassify the New York 

City metropolitan area as a "moderate" nonattairunent area. 

After receiving your letter of April 30, 2012 notifying him of these pending designations, 

Governor Cuomo asked me to write you regarding the transport of ozone into New York State. 

In your letter to the Governor, you recognized "that pollution crossing state boundaries can 

contribute to downwind violation of National Ambient Air Quality Standards." For New York, 

and other northeastern states, addressing transported ozone will be critical to meeting the 2008 

ozone standard. 

For over twenty years, New York State and the other Ozone Transport Commission (OTC) states 

have implemented a series of ever stricter control measures to reduce nitrogen oxides (NOx) and 

volatile organic compound (VOC) emissions. Many upwind contributor states have yet to adopt 

the most basic of these control measures. Nevertheless, EPA has granted NOx waivers to some 

of those states (as recently as 2010) that allow significant 'large sources ofNOx emissions to 

remain uncontrolled. This approach results in an inequitable distribution of control costs and is 

causing, or significantly contributing to, ozone nonattairunent problems in New York City and 

western New York (Jamestown). 

I - 77 Federal Register 30088, "Air Quality Designations for the 2008 Ozone National Ambient Air Quality 

Standards" 
2. 

In 2004, after many years of debate and analyses, reductions from the NOx SIP call were 

realized and regional ozone levels declined. Despite this clear example of the importance of 

regional NOx reductions, EPA is proposing to designate some upwind areas (Detroit and 

Louisville) as attainment even though 2009 to 2011 ozone data shows nonattainment of the 

NAAQS. Furthermore, EPA staff advises us that the Agency will not take action to reduce 

significant upwind contributions until after the next review of the ozone NAAQS is completed in 

late 2014. New York and other eastern seaboard states need EPA's assistance now in achieving 

regional NOx reductions. Fulfilling our mutual obligation to protect public health from harmful 

air pollution does not allow us to wait until the latter half of the decade, after EPA makes 

designations in 2016 under a new ozone standard that may be adopted in 2014. 

I am also requesting a "Five Percent" reclassification of the New York City metropolitan area 

from "marginal" to "moderate" pursuant to Clean Air Act section 181(a)(4). The New York City 

metropolitan area is eligible for this reclassification because its design value of 0.084 ppm is 

within five percent of 0.085 ppm, the threshold for a "moderate" classification. In the 

alternative, please consider this a voluntary reclassification request under the provisions of 

section 18l(b)(3) of the Clean Air Act. 

Predictive air quality screening modeling conducted by the Department of Environmental 

Conservation (DEC) indicates NOx emission reductions on the order of 68% from 2007 levels 

throughout the Eastern United States are needed to attain the ozone NAAQS in the New York 

City metropolitan area. Accordingly, DEC estimates that the earliest that the New York City 

metropolitan area will be able to attain the 2008 ozone NAAQS is the year 2018. Additional 

supporting information is provided in the enclosed analysis. 

This reclassification will not delay proposed environmental improvements and emission 

reductions in New York State. New York has implemented measures that will continue to 

reduce emissions (CA low emission vehicle program); will get additional reductions from 

adopted regulations still to be implemented (i.e. NOx RACT); and is moving forward with 

additional control measures as expeditiously as practicable. However, as shown in the enclosed 

analysis, these reductions alone will not be enough to realize attainment. 

The "marginal" classification is intended for those areas that are expected to come into 

attainment due to the reductions of ozone precursors from already adopted programs. 

Application of the marginal classification to areas that clearly need additional reductions will 

only serve to delay implementation of needed programs. It will result in states taking a "wait and 

see" approach that will not result in any appreciable planning and control implementation to 

reduce ozone. A "moderate" classification will require DEC to engage New Jersey and 

Connecticut in an ozone planning process. This process will identify the emission reductions in 

the New York City metropolitan area and in upwind areas that are needed to attain the 2008 

ozone NAAQS. Without a strategy to adequately address both local and transported pollution, it 

is likely to take even longer to attain the standard. 

I look forward to your approval of this request and to working with you to address the challenge 

of reducing ozone levels across the eastern United States. 
3. 

Please call me at ( 518) 402-8540 if you have any questions. 

Enclosures 
4. 

New York Metropolitan Area Reclassification Analysis 

The New York-N. New Jersey-Long Island, NY-NJ-CT area (New York City metropolitan area) 

has been designated nonattainment with a "marginal" classification for the 2008 ozone national 

ambient air quality standard (NAAQS). Clean Air Act (CAA) section 181(a)(4) provides that a 

state may request that the EPA reclassify a nonattainment area within the state to a higher 

classification if the design value is within five percent of the next higher classification. The 

design value for the New York City metropolitan area is 0.084 ppm. 

The New York State Department of Environmental Conservation (DEC) has analyzed attainment 

modeling results, estimated required emissions reductions to attain the NAAQS, reviewed 

emissions trends and considered economic realities. Consequently, the Department hereby 

requests a voluntary reclassification of the New York metropolitan area from "marginal" to 

"moderate" for the following reasons: 

As indicated in the chart below, preliminary modeling conducted by the Department for the 

Ozone Transport Commission (OTC) Modeling Committee shows that NOx emissions reductions 

on the order of 68% from 2007 levels throughout the Eastern United States are needed to attain 

the 2008 NAAQS of 0.075 ppm in the New York City metropolitan area. Even with those levels 

ofreductions, the Bayonne, NJ monitor, which is part of the New York metropolitan 

nonattainment area, is still actually predicted to exceed the nonattainment threshold. 

White Plains 

Camden NJ 73 67 

Bristol PA 72 66 

Greenwich CT 72 66 

Babylon 71 65 

NEA PA 70 64 

NYC-Queens NJ 74 72 71 

Clarksboro NJ 74 69 63 

Edgewood MD 71 66 57 

Chicopee MA 70 65 58 

5/ 24/20 12 I NOTE: A full set or results were provided in the packets 20 

The DEC predicts that it will take from 6 to l O years to implement the measures necessary to 

realize this level of control throughout the Eastern United States. Therefore, a moderate ozone 

nonattainment classification is needed to allow sufficient time to plan for, adopt and implement 

the measures needed to attain. A marginal ozone nonattainment classification will actually have 
5. 

the perverse effect of delaying attainment since it does not carry any required emission 

reductions nor does it require any planning efforts to determine the level of reductions needed to 

attain. The presumption is that the marginal area will come into attainment through reductions 

from measures already in place. Without the impetus of the Clean Air Act requirements of a 

higher classification, it is unrealistic to assume that any meaningful planning and control 

measure development will actually take place. This will no doubt result in continued 

nonattainment in 2015 and beyond which will have the effect of delaying the necessary programs 

to attain the 2008 ozone NAAQS at least another three (3) years. 

New York State and other OTC states, as a result of CAA requirements and through their own 

volition, have already adopted a series of measures, including reasonably available control 

technology (RACT) control measures, low emission vehicle standards, limits on consumer 

products and high electric demand day initiatives to reduce NOx and volatile organic compound 

(VOC) emissions. These programs will have the effect of reducing ozone levels in the near term. 

The OTC modeling committee has performed other modeling which illustrates the impacts of 

those measures on ozone air quality. It is clear from this analysis, however, that without 

substantial emission reductions from areas throughout the Eastern United States, the New York 

City metropolitan area will not be able to attain the 2008 NAAQS by 2015 as demonstrated in 

the two following charts. 

CMAQ Scenario 5 Results - OTR Only 

2015 

Preliminary '~ C u:) · ' C ·' ; ~; tJ ' ' ' 

Note: In preliminary run, reductions were applied only within the OTR. 
CALGRID Scenario 5- 2015 

Preliminary 

Future Design Values for 8-Hour Ozone 

Scenario S - 2015 Base Case 

CALGJUO 1111.111 

Moddiog D..imllio 

NHDt!S!.'3112 

EPISODES 

Jun• U • July 23, 2002 

July 30 • Au gut 11, 2002 

OESIGN VALUH 

200&·1010 

RRF THRESHOLDS 

71 PP8, to PPB 

EMISSION$ IA8E 

2002 Gau 

Rang• 

(ppb) 

e <60 

e iO · t,U 

• &e; . st.t 

70-74,9 

• 7$·7'9.t 

• 80 · 90 

• >a\15 

6. 

Scenario 5 represents estimates of emission reductions from existing programs and additional 

reductions from programs that will be implemented by 2015. As seen above in CMAQ and 

CALGRID Scenario 5 modeling results, even with the additional reductions from adopted 

measures in New York, the OTC and the entire Eastern United States, nonattainment will persist. 

Scenario 5 for CMAQ modeled a 48% reduction of on-road NOx emissions and a 43% reduction 

of electric generating unit (EGU) NOx emissions in 2015. Scenario 5 for CALGRID modeled a 

37% reduction of on-road NOx emissions and a 31% reduction in EGU emissions in 2015. With 

a projected design value of 0.082 ppm in 2015, it is the obligation of the EPA to reclassify the 

New York City area to moderate nonattainment. This reclassification will actually serve to 

expedite the efforts needed to attain the standard. 

It also should be noted that the EPA's own analysis for the final implementation rule for the 

2008 ozone NAAQS predicts nonattainment beyond the 2015 marginal attainment deadline.2 

Accounting for reductions from adopted measures throughout the country, the EPA predicts that 

the New York City metropolitan area ozone design value will be 0.0795 ppm in 2015.3 

On a related note, in 2011 the EPA finalized the Cross-State Air Pollution Rule (CSAPR) to 

reduce annual sulfur dioxide (S02) emissions, annual nitrogen oxides (NOx) emissions and/or 

2 77 Federal Register 30160 (May 21, 2012) [EPA-HQ-OAR-2010-0885, FRL-9667-9] 

3 EPA-HQ-OAR-2010-0885-0011 "Nonattainment Area Projections of2008-2010 Design Values to 2015" 
7. 

ozone season NOx emissions from power plants to address the section 11 O(a)(2)(D) transported 

air pollution requirements, thereby assisting States in attaining the 1997 ozone and fine particle 

and 2006 fine particle NAAQS4

• It does not address the 2008 ozone NAAQS. As seen by the 

analyses presented here, significant reductions in upwind areas are necessary to address 

nonattainment. As documented in the CS APR rulemaking, at least fifteen ( 15) upwind states 

contribute significantly to nonattainment of the 2008 ozone NAAQS in the New York City 

metropolitan area.

5 The EPA has yet to determine how it will address states' failure to address 

their obligations under section 11 O(a)(2)(D). It should be noted that many states have not yet 

adopted basic control strategies such as major source NOx RACT and some upwind states have 

been granted NOx waivers which allows those states to leave large significant sources ofNOx 

emissions uncontrolled. This situation is causing an inequitable distribution of control costs; and 

is causing, or significantly contributing to, ozone nonattainment in downwind areas, including 

the New York City metropolitan area. 

4 76 Federal Register 48208 (July 6, 2011) [EPA-HQ-OAR-2009-0491; FRL-9436-8) 

5 EPA-HQ-OAR-2011-0338-0002 "Air Quality Modeling Final Rule Technical Support Document (TSO)" June 

2011"