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[Federal Register Volume 77, Number 117 (Monday, June 18, 2012)]
[Rules and Regulations]
[Pages 36163-36170]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14716]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2011-0956; FRL-9682-7]

Determinations of Failure To Attain the One-Hour Ozone Standard 
by 2007, Current Attainment of the One-Hour Ozone Standard, and 
Attainment of the 1997 Eight-Hour Ozone Standards for the New York-
Northern New Jersey-Long Island Nonattainment Area in Connecticut, New 
Jersey and New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing four separate and independent determinations 
related to the New York-Northern New Jersey-Long Island (NY-NJ-CT) one-
hour and 1997 eight-hour ozone nonattainment areas. The boundaries of 
the one-hour and eight-hour ozone nonattainment areas differ slightly. 
With respect to the NY-NJ-CT one-hour nonattainment area, EPA is 
determining that the area previously failed to attain the one-hour 
ozone National Ambient Air Quality Standard (NAAQS) by its applicable 
attainment deadline of November 15, 2007 (based on complete, quality-
assured and certified ozone monitoring data for 2005-2007), and EPA is 
also determining that the area is currently attaining the now revoked 
one-hour ozone standard based on complete, quality-assured and 
certified ozone monitoring data for 2008-2010.
    Quality-assured ozone monitoring data in the Air Quality System for 
2011 indicate the area continues to attain the revoked one-hour ozone 
standard. With respect to the NY-NJ-CT 1997 eight-hour ozone 
nonattainment area, EPA is determining that the area attained the 1997 
eight-hour ozone standard by the applicable deadline, June 15, 2010, 
based on complete, quality-assured and certified ozone monitoring data 
for 2007-2009. EPA is also determining that the area is currently 
attaining the 1997 eight-hour ozone standard based on complete, 
quality-assured and certified ozone monitoring data for 2008-2010. 
Quality-assured ozone monitoring data for 2011 indicate that the area 
continues to attain the 1997 eight-hour ozone standard.
    EPA's ozone implementation regulation for the 1997 eight-hour ozone 
standard provides that the requirements for the States 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 that ozone standard shall be suspended 
for as long as the area continues to attain the standard. A 
determination of attainment does not constitute a redesignation to 
attainment. Redesignation requires the states to meet a number of 
additional criteria, including EPA approval of a state plan to maintain 
the air quality standard for ten years after redesignation.

DATES: Effective Date: This rule is effective on July 18, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2011-0956. All

[[Page 36164]]

documents in the docket are listed on the www.regulations.gov Web site. 
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, 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 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. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The Docket telephone number 
is 212-637-4249.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning EPA's 
action related to New Jersey or New York, please contact Paul Truchan, 
Air Programs Branch, Environmental Protection Agency, 290 Broadway, 
25th floor, New York, New York 10008-1866, telephone number (212) 637-
4249. If you have questions concerning EPA's action related to 
Connecticut, please contact Richard Burkhart, Air Quality Planning 
Unit, Environmental Protection Agency, EPA New England Regional Office, 
5 Post Office Square--Suite 100, Mail Code OEP05-02, Boston, MA 02109-
3912, telephone number (617) 918-1664, fax number (617) 918-0664, email 
burkhart.richard@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What are the actions EPA is taking?
II. What is the background for these actions?
III. What comments were received on these actions and what are EPA's 
responses?
IV. Final Actions
V. Statutory and Executive Order Reviews

I. What are the actions EPA is taking?

    EPA is finalizing four separate and independent determinations for 
the New York-Northern New Jersey-Long Island (NY-NJ-CT) ozone 
nonattainment area (hereafter, ``the NY-NJ-CT area'').

A. Determination of Failure To Attain the One-Hour Ozone Standard by 
Applicable Attainment Date

    EPA is determining that the NY-NJ-CT one-hour ozone nonattainment 
area previously failed to attain the one-hour ozone National Ambient 
Air Quality Standard (NAAQS) by its applicable attainment deadline of 
November 15, 2007 (based on complete, quality-assured and certified 
ozone monitoring data for 2005-2007).

B. Determination of Current Attainment of the One-Hour Ozone Standard

    EPA is determining that the NY-NJ-CT one-hour ozone nonattainment 
area is currently attaining the one-hour ozone standard based on 
complete, quality-assured and certified ozone monitoring data for 2008-
2010. Quality-assured ozone monitoring data for 2011 in the Air Quality 
System (AQS) indicate the area continues to attain the one-hour ozone 
standard.

C. Determination of Attainment of the 1997 Eight-Hour Ozone Standard by 
Applicable Attainment Date

    EPA is determining that the NY-NJ-CT eight-hour ozone nonattainment 
area attained the 1997 eight-hour standard by the applicable deadline, 
June 15, 2010, based on complete, quality-assured and certified ozone 
monitoring data for 2007-2009.

D. Determination of Continued Attainment of the 1997 Eight-Hour Ozone 
Standard

    EPA is determining that the area is currently attaining the 1997 
eight-hour ozone standard based on complete, quality-assured and 
certified ozone monitoring data for 2008-2010. Quality-assured data 
available in the AQS for 2011 indicate that the area continues to 
attain the 1997 eight-hour ozone standard. Based on the determination 
that the area is currently attaining the 1997 eight-hour standard, 40 
CFR 51.918 \1\ of EPA's ozone implementation rule for the 1997 eight-
hour ozone standard provides that the requirements for the States 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 that 
standard shall be suspended for as long as the area continues to attain 
the standard. Quality-assured ozone monitoring data for 2011 in AQS 
indicate the area continues to attain the 1997 eight-hour ozone 
standard.\2\
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    \1\ CFR refers to the Code of Federal Regulations, in this case 
Title 40 part 51.
    \2\ Greenwich Point Park, Connecticut (AQS 090010017) an ozone 
monitor in the New York-Northern New Jersey-Long Island one-hour and 
1997 eight-hour ozone nonattainment areas was taken out of service 
on August 28, 2011 in an attempt to protect the site from the 
prediction of the landfall of Hurricane Irene, at or near New York 
City, New York. In the end, the Hurricane storm surge and/or storm 
driven waves did submerge an electric meter box, servicing the ozone 
monitor. The meter box was replaced and power was restored by 
January 4, 2012. The result of this power outage was the loss of 
ozone data from August 28 to September 30, 2011. As a result of this 
loss of data, the Greenwich Point Park ozone monitor fell just short 
of 75 percent data completeness required. Nevertheless, all 
available 2011 ozone data indicate New York-Northern New Jersey-Long 
Island one-hour and 1997 eight-hour ozone nonattainment areas 
continue in attainment for both the 1-hour and 8-hour ozone 
standards in 2011. Monitoring data for all other monitors in the 
area for the states of New York and Connecticut are certified as 
complete and indicated attainment of both standards. The ozone data 
for New Jersey is in AQS, is quality assured, and is complete, but 
as of May 4, 2012 the NJ ozone data have not yet been certified.
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    In addition, EPA is withdrawing EPA's proposed disapprovals of 
Connecticut's and New Jersey's 1997 eight-hour ozone attainment 
demonstrations, which were previously published in the Federal Register 
on May 8, 2009 (74 FR 21568 and 74 FR 21578).
    In order to determine the areas' air quality status for purposes of 
this action, EPA reviewed ozone monitoring air quality data from the 
States, in accordance with 40 CFR 50.9, 40 CFR part 50 appendix H and 
appendix I, and EPA policy and guidance, as well as data processing, 
data rounding and data completeness requirements. EPA's review of the 
air quality data and related rationale for these determinations are 
explained in the Notice of Proposed Rulemaking (NPR) published in the 
Federal Register on January 25, 2012 (77 FR 3720) and will not be 
restated here.

II. What is the background for these actions?

    The boundaries for the NY-NJ-CT one-hour and the eight-hour ozone 
nonattainment areas are slightly different. For the one-hour ozone 
NAAQS of 0.12 parts per million (ppm), the area is composed of: Bergen, 
Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean, Passaic, 
Somerset, Sussex, and Union Counties in New Jersey; Bronx, Kings, 
Nassau, New York, Queens, Richmond, Rockland, Suffolk, Westchester 
Counties and part of Orange County in New York; and parts of Fairfield 
and Litchfield Counties in Connecticut. The 1997 eight-hour ozone 
nonattainment area is composed of many of the same counties as the one-
hour ozone nonattainment area but does not include Ocean County in New 
Jersey, any part of Orange County in New York or any part of Litchfield 
County in Connecticut, and does include Warren County in New Jersey, 
and all of Fairfield, New Haven and Middlesex Counties in Connecticut. 
The one-hour ozone standard designations were established by EPA 
following the enactment of the Clean Air Act (CAA) Amendments in 1990. 
See 56 FR 56694 (November 6, 1991). Each area of the country that was

[[Page 36165]]

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). The NY-NJ-CT one-hour ozone 
nonattainment area was designated nonattainment and classified as 
severe-17, with an attainment deadline of November 15, 2007.
    On July 18, 1997, (62 FR 38856), EPA promulgated a new, more 
protective standard for ozone based on eight-hour average 
concentrations (the ``1997 eight-hour ozone NAAQS''). 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). The NY-NJ-CT 1997 
eight-hour ozone nonattainment area was designated nonattainment and 
classified as moderate with an attainment deadline of June 15, 2010.
    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 areas 
of the country, effective June 15, 2005. See, 40 CFR 50.9(b); 69 FR 
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 ozone requirements remain applicable in an area after 
revocation of the one-hour ozone NAAQS.
    Although EPA revoked the one-hour ozone standard (effective June 
15, 2005), eight-hour ozone nonattainment areas remain subject to 
certain one-hour anti-backsliding requirements based on their one-hour 
ozone classification. Initially, EPA's rules to address the transition 
from the one-hour to the eight-hour ozone standard did not include one-
hour nonattainment area contingency measures or major source penalty 
fee programs among the measures retained as one-hour ozone anti-
backsliding requirements.\3\ However, on December 23, 2006, the United 
States Court of Appeals for the District of Columbia Circuit determined 
that EPA should not have excluded these requirements (and certain 
others not relevant here) from its anti-backsliding requirements. South 
Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 
2006) reh'g denied 489 F.3d 1245 (clarifying that the vacatur was 
limited to the issues on which the court granted the petitions for 
review). Thus, the Court vacated the provisions that excluded these 
requirements. As a result, states must continue to meet the obligations 
for one-hour ozone NAAQS contingency measures. EPA has issued a rule 
that, among other things, removed the vacated provisions of 40 CFR 
51.905(e), and addressed the anti-backsliding requirement for 
contingency measures for failure to attain or make reasonable further 
progress toward attainment of the one-hour standard. See 74 FR 2936 
(January 16, 2009) (proposed rule); 74 FR 7027 (February 12, 2009) 
(notice of public hearing and extension of comment period), and 77 FR 
28424 (May 14, 2012) (final rule).
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    \3\ Final Rule to Implement The 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 1, 69 FR 23951 (April 30, 2004).
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III. What comments were received on these actions and what are EPA's 
responses?

    EPA received six distinct comments from three parties: the New 
Jersey Department of Environmental Protection (NJDEP), Public Service 
Enterprise Group, Inc. (PSEG) and Sierra Club. No adverse comments were 
directed at EPA's monitoring data-based air quality determinations, in 
and of themselves. One commenter (Sierra Club) submitted adverse 
comments concerning EPA's discussion of certain regulatory effects and 
consequences of these determinations. Below, EPA summarizes those 
comments and sets forth EPA's responses.
    1. Two commenters (NJDEP and PSEG) urged EPA to determine that the 
section 185 fee requirement under the one-hour standard for the NY-NJ-
CT nonattainment area is no longer applicable to the nonattainment area 
because the area attained the one-hour standard. One commenter (PSEG) 
alternatively suggested EPA issue a Termination Determination for the 
section 185 fee requirement based upon the complete, quality-assured 
monitoring data showing attainment with the one-hour ozone NAAQS in the 
area due to permanent and enforceable emission reductions implemented 
in the area. The commenter contended that such a Termination 
Determination would not be dependent upon the Agency's previous section 
185 fee guidance, which was vacated by the D.C. Circuit Court, but 
would instead be consistent with the statutory objectives of section 
185 and the reasoning of the Court in South Coast Air Quality 
Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006) (South 
Coast). Sierra Club, in its comments, requested that EPA apply section 
185 requirements for the period from 2007-2010.
    Response: On January 29, 2011, April 29, 2011 and June 16, 2011, 
the Departments of Environmental Protection for the States of New 
Jersey, Connecticut and New York, respectively, requested that EPA make 
a determination that the NY-NJ-CT area has attained the 1-hour ozone 
standard due to permanent and enforceable emissions reductions, and 
that therefore the States should be relieved of any obligation to 
implement the penalty fees for that area under section 185. EPA is 
considering these requests and will take separate notice and comment 
rulemaking shortly to address them. EPA has not yet proposed any action 
on these requests and thus cannot take any final action with respect to 
them in this rulemaking.
    EPA in this rulemaking is finalizing its determination that the 
area has attained the 1-hour ozone standard based on certified air 
quality data for 2008-2010, and continuing through 2011. No commenter 
has requested that EPA require the States to implement the section 185 
penalty fee program in this area in the period subsequent to the area's 
attainment of the 1-hour standard in 2010. Below, EPA addresses one 
commenter's (Sierra Club) contentions with respect to requiring penalty 
fees for the period prior to 2010. EPA will be addressing any remaining 
issues with respect to terminating one-hour ozone section 185 penalty 
fee requirements in this area in future rulemaking actions.
    2. A commenter (Sierra Club) contends that EPA has no authority to 
withdraw its proposed disapprovals of the 1997 eight-hour ozone 
attainment demonstration for the NY-NJ-CT eight-hour nonattainment 
area. The commenter cites 42 U.S.C. 7410(k)(2) and (3) as requiring EPA 
to act within 12 months of a finding of completeness. Also, commenter 
asserts that a determination of attainment (Clean Data Determination) 
does not and cannot suspend EPA's obligation to approve or disapprove a 
SIP submission after it has been submitted to EPA.
    Response: Assuming that, in a situation where EPA has already 
conducted notice and comment rulemaking to determine that an area is in 
attainment of the standard, the Agency is nevertheless obliged to 
conduct additional rulemaking on a plan to accomplish what has been 
done, under section 110(k)(2), EPA is not obligated to finalize a prior 
version of a proposed rulemaking on the plan after circumstances have 
changed. In this case, EPA's determination, after notice and comment 
rulemaking, that the area

[[Page 36166]]

attained the 1997 eight-hour ozone NAAQS by its attainment date, 
eliminates the basis for the prior proposed disapproval. Under these 
circumstances, it is reasonable, proper and correct for EPA to withdraw 
the proposed disapproval. EPA may then proceed to take into account the 
determination that the area has attained, in a subsequent proposed 
action to approve the submitted attainment demonstration SIPs. 
Alternatively, in view of EPA's final determination of attainment for 
the area, the States of Connecticut and New Jersey may choose to 
withdraw their attainment demonstrations. Thus, the commenter's 
concerns are misplaced. Withdrawal of the proposed disapprovals is 
consistent with, and in no way prohibits further action with respect to 
the attainment demonstrations in accordance with the EPA's 
determination that the monitoring data show the area has attained the 
1997 eight-hour standard since 2009.
    3. A commenter (Sierra Club) argues that the NY-NJ-CT area's 
failure to attain the one-hour ozone NAAQS by its deadline of November 
15, 2007 triggers penalty fees for 2007-2010 and contingency plan 
requirements under the Clean Air Act.
    A. Sierra Club states that the NY-NJ-CT nonattainment area did not 
attain by its November 15, 2007 attainment date, and cites South Coast, 
472 F.3d at 903, in support of its position that EPA must enforce 
certain anti-backsliding requirements, including section 185 fees. The 
commenter complains that EPA in its proposed determination of 
nonattainment for the NY-NJ-CT area (see 77 FR 3724) did not require 
payment of fees for 2007-2010.
    Response: First, we wish to emphasize, as EPA stated in its 
proposal, that the purpose of this rulemaking action is to make four 
specific air quality determinations regarding whether the NY-NJ-CT area 
attained the one-hour and 1997 eight-hour ozone standards. While EPA's 
proposal noted that these determinations bear on one-hour anti-
backsliding requirements for contingency measures and section 185 
penalty fees, this action does not attempt to address or resolve all 
the implementation issues regarding those requirements. Thus at the 
outset, Sierra Club's position that EPA's specific rulemakings on air 
quality determinations must also include resolutions of all anti-
backsliding implementation issues that may flow from them is incorrect. 
While EPA recognizes that the anti-backsliding requirement for the one-
hour contingency measures and section 185 fees are linked to the 
determination of failure to meet the attainment deadline for that 
standard, EPA's rulemakings here regarding those determinations do not, 
and are not required to, dispose of all implementation issues for those 
requirements or for others, such as those raised in Sierra Club's 
comments regarding milestones and additional planning.
    In its comments, Sierra Club argues that EPA's determination that 
the NY-NJ-CT area failed to attain by its one-hour ozone attainment 
deadline also requires EPA to decide here that it must retroactively 
collect penalties under section 185 for the period before EPA made its 
determination.\4\ We disagree. Neither EPA's determination, nor the 
South Coast case, compels EPA to reach this conclusion or even to 
decide that issue here. EPA intends to address issues regarding one-
hour anti-backsliding requirements in future rulemakings on 
implementation of the section 185 requirements for the NY-NJ-CT area. 
Nevertheless, we wish to state our preliminary views on Sierra Club's 
comments below. EPA's preliminary views are set forth in the remainder 
of the response below, and are not necessary to and are independent of 
its air quality determinations of attainment contained in this final 
rulemaking.
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    \4\ As explained above and elsewhere in our response to 
comments, EPA disagrees with Sierra Club's contentions regarding 
retroactive collection of fees. As a technical point, however, we 
note that under section 185, the earliest year for which fees could 
ever have been required to be paid is the calendar year following 
the attainment date, November 15, 2007. Thus, it is clear that under 
no circumstances would fees be due for 2007.
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    Sierra Club's comments quote at length from South Coast, 472 F.3d 
at 902-903. While EPA acknowledges that this decision established that 
section 185 fee requirements were to be included as anti-backsliding 
measures, the Court in that case did not direct any specific means of 
enforcement of these requirements, nor the method for determining 
whether an area failed to attain by its attainment date. That decision 
established only that the section 185 and contingency measure 
requirements were ``applicable.'' It did not establish or even address 
how those requirements were to be implemented.\5\
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    \5\ Moreover, as EPA explained above, those issues are ancillary 
to the determination of failure to attain the one-hour ozone 
standard that EPA is finalizing in this rulemaking.
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    The D.C. Circuit, however, has previously upheld EPA's longstanding 
practice of making determinations of an area's failure to meet 
attainment deadlines solely through notice and comment rulemaking--
Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002).\6\ In that case--
which similarly arose from a determination of failure of a one-hour 
ozone nonattainment area to meet its attainment deadline, the D.C. 
Circuit rejected a litigant's \7\ demand to make the consequences of 
that determination retroactive to the time period before EPA made the 
determination. In that case, Sierra Club similarly argued that EPA's 
overdue determination that the St. Louis one-hour ozone nonattainment 
area failed to attain by its attainment deadline should apply 
retroactively, and that the Court should require retroactive 
reclassification of the area. The Court rejected Sierra Club's 
contention that EPA's rulemaking was not required to determine a 
failure to attain: ``No matter what the Sierra Club thinks the Clean 
Air Act or the APA required of EPA, the fact remains that `EPA's 
established practice for making a final decision concerning 
nonattainment and reclassification is to conduct a rulemaking under the 
APA, not to issue a letter, a list, or some other informal document.' * 
* * [citations omitted.]'' The Court concluded: ``In other words, if 
there has not been a rulemaking there has not been an attainment 
determination.'' 285 F.3d at 66.
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    \6\ Sierra Club v. Whitman was discussed and distinguished in a 
recent D.C. Circuit decision that addressed retroactivity in a quite 
different context, where, unlike the situation here, EPA sought to 
give its regulations retroactive effect. National Petrochemical and 
Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C. Cir. 2010), rehearing 
denied 643 F.3d 958 (D.C. Cir. 2011), cert denied 132 S. Ct. 571 
(2011).
    \7\ In this case, also Sierra Club.
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    The Court also refused to accept Sierra Club's assertion that the 
Court should compel EPA to give retroactive effect to its 
determination, resulting in reclassification as of the area's 
attainment date. The Court stated: ``Although EPA failed to make the 
nonattainment determination within the statutory time frame, Sierra 
Club's proposed solution only makes the situation worse. Retroactive 
relief would likely impose large costs on the States, which would face 
fines and suits for not implementing air pollution prevention plans 
[earlier], even though they were not on notice at the time.'' 285 F.3d 
at 68.
    While it is true that the Clean Air Act provides that both 
reclassification and penalty fees are consequences of failure to attain 
the ozone standard, the D.C. Circuit in Sierra Club recognized that 
these weighty consequences are not triggered until EPA makes a 
determination, after notice and comment rulemaking, of failure to 
attain. In that case the court also rejects

[[Page 36167]]

the view that adverse consequences from the determination should be 
imposed retroactively, especially if they would, as here, subject the 
States to additional burdens caused by retroactive requirements that 
were not triggered prior to conclusion of the rulemaking process.
    Several features of our rulemaking for the NY-NJ-CT area provide 
additional grounds for application of a position similar to that which 
the court took in the St. Louis Sierra Club case. In the case of St. 
Louis, when the question of retroactive application arose, the area 
remained in nonattainment of the one-hour standard, which was also 
still the only standard in effect. Here, unlike St. Louis, EPA has 
determined that the NY-NJ-CT area is currently attaining both the one-
hour and eight-hour standards, and thus there is significantly less 
reason to consider imposing retroactive penalties that are intended to 
bring about the attainment that has already occurred.
    Sierra Club here argues, unpersuasively, that the South Coast 
opinion supports retroactive imposition of penalties, quoting the 
Court's statement that, unless section 185 requirements were 
applicable, ``a state could go unpenalized without ever attaining even 
the original NAAQS * * *.'' 472 F.3d at 903. Here, however, this 
possibility does not exist. EPA's final determinations in this 
rulemaking establish that the NY-NJ-CT area has in fact attained not 
only the original one-hour standard, but also the 1997 eight-hour 
NAAQS.
    Sierra Club quotes the Court's statement in South Coast that 
``Congress set the penalty deadline well into the future, giving states 
and industry ample notice and sufficient incentives to avoid the 
penalties.'' 372 F.3d at 903. Notice of the existence of penalty 
provisions, however, is not the same as notice that these provisions 
have been triggered. As the D.C. Circuit recognized in Sierra Club v. 
EPA, only when EPA issues a final notice determining that an area has 
failed to attain by the attainment date can that failure be 
definitively established. The case of the NY-NJ-CT area presents a 
particularly compelling context in which to apply this principle. The 
NY-NJ-CT area has been attaining the one-hour standard since 2010 and 
the eight-hour standard for the time period 2007-2010, and data for 
2011 continues this trend. No incentives--and certainly no penalties--
are required for the area to reach attainment,\8\ a goal that the area 
has met, preserved and exceeded. Under these circumstances, and based 
on the D.C. Circuit's and EPA's long held position on the issue of 
retroactive consequences of determinations of failure to attain, EPA 
cannot see a reason to impose penalties on sources in the NY-NJ-CT 
area. As explained above, EPA is determining that the area is 
currently, and has for some time been, attaining both the one-hour and 
eight-hour ozone standards. Thus no anti-backsliding purpose is served 
by retroactive imposition of fees for a failure to meet a deadline for 
a revoked standard--under circumstances that existed years ago, which 
have since been eclipsed by continuous attainment. EPA believes that 
compelling the States and sources to address old penalties now would 
also divert attention and resources from efforts to achieve current, 
forward-looking environmental goals, including the stricter 2008 ozone 
standard. In these circumstances, giving retroactive effect to EPA's 
determination of failure to attain the standard here would be 
unreasonable, and it would, as the Court held in Sierra Club v. 
Whitman, ``only mak[e] the situation worse.''
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    \8\ Sierra Club appears to recognize this, since it does not 
request EPA to impose penalties for the time period after the area 
attained the standard (2010 to the present).
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    B. Sierra Club asserts that the NY-NJ-CT nonattainment area is 
subject to contingency plan requirements for failure to attain the one-
hour standard and that EPA failed to impose this requirement on the 
States. Sierra Club argues that EPA must ensure that the contingency 
measures approved for New York, New Jersey, and Connecticut in 67 FR 
5170, 67 FR 5152, and 66 FR 63921 are implemented and enforced, and 
Sierra Club contends that EPA has improperly failed to carry out this 
obligation. Sierra Club asserts that EPA's determination that the area 
has attained the one-hour ozone standard (Clean Data Determination) 
does not allow removal of these contingency measures, which Sierra Club 
states became applicable in 2007 and which must remain in place to 
prevent backsliding.
    Response: Contingency measures for the one-hour ozone standard were 
previously approved and have been implemented in the NY-NJ-CT 
nonattainment area. See for New York: 67 FR 5170 (February 4, 2002) and 
40 CFR 52.1683(i)(3); for New Jersey: 67 FR 5152 (February 4, 2002) and 
40 CFR 52.1582(h)(4); for Connecticut: 66 FR 63921 (December 11,2001) 
and 40 CFR 52.377. There is no need for EPA to require the states to 
implement the contingency measures, because all the identified measures 
are part of the applicable SIP and have already been implemented. The 
States have not requested removal of the contingency measures from 
their respective SIPs and therefore they continue in effect. EPA has 
never proposed to remove the measures approved as contingency measures 
in this area. The States would have to request a SIP revision if they 
wanted to remove these measures from their applicable SIP and would 
have to demonstrate compliance with section 110(l). Thus, the measures 
identified as contingency measures continue to remain in SIP. Moreover, 
as explained in EPA's Clean Data Policy,\9\ the purpose of contingency 
measures for failure to attain is linked to attainment. EPA in this 
rulemaking has determined that the area has already attained the one-
hour ozone standard, and therefore no additional contingency measures 
are needed.
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    \9\ Memorandum from John S. Sietz, Director, OAQPS, dated May 
10, 1995, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment 
Areas Meeting the Ozone National Ambient Air Quality Standard'' 
(``Clean Data Policy'').
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    C. Sierra Club argues that the NY-NJ-CT ozone nonattainment area is 
subject to the milestone one-hour ozone anti-backsliding requirements 
of the Act. The commenter asserts that EPA errs in failing to impose 
rate of progress (ROP) or reasonable further progress (RFP) milestones 
on the nonattainment area. The commenter asserts that 42 U.S.C. 7511(d) 
requires the states to submit revised SIPs that incorporate updated ROP 
plans for the one-hour ozone standard.
    Response: As stated in the proposed rulemaking, EPA has previously 
approved one-hour RFP and ROP plans for the NY-NJ-CT area. See for New 
York: 67 FR 5170 February 4, 2002 and 40 CFR 52.1683(i)(2); for New 
Jersey: 67 FR 5152 February 4, 2002 and 40 CFR 52.1582(h)(3); for 
Connecticut: 66 FR 63921 December 11, 2001 and 40 CFR 52.377. Nowhere 
in its January 25, 2012 proposal (77 FR 3720), did EPA propose to 
remove from the approved SIPs the measures that resulted in satisfying 
the ROP or RFP plan requirements for the area. Nor have the States 
requested removal of those provisions.
    Sierra Club's comment relies on section 181(b)(4)(A), and quotes 
language providing that, if a severe area fails to attain, certain 
reductions continue '' until the standard is attained.'' Here, EPA's 
determinations in this rulemaking establish that the area has attained 
the one-hour ozone standard, so any such obligation would now be at an 
end. And, as explained in

[[Page 36168]]

Comment 3A, no prior failure to attain was established until EPA's 
final determination in this rulemaking (see response to Comment 3A 
above). In this rulemaking, EPA is finalizing its determinations that 
the NY-NJ-CT nonattainment area is currently attaining both the one-
hour and eight-hour ozone NAAQSs. Under 40 CFR 51.918 and the 
interpretation set forth in EPA's longstanding Clean Data Policy, these 
determinations suspend the obligations to submit any outstanding 
planning requirements, including ROP. Based on the monitoring data that 
show attainment of both ozone standards, there is no need to require 
the States to revise or submit new ROP plans or new RFP milestones for 
the one-hour ozone SIPs. Additional ozone reductions have resulted from 
implementation of the eight-hour ozone standard. EPA has approved ROPs 
for the 1997 ozone standard SIPs in Connecticut, New Jersey and New 
York, which function to further reduce ozone precursors to a greater 
extent than would be required by submission of an additional RFP for 
the one-hour ozone standard.
    4. Sierra Club contends that the NY-NJ-CT ozone nonattainment area 
must submit a revised one-hour ozone SIP and asserts that EPA's failure 
to require a new SIP for the NY-NJ-CT area upon finalizing its proposed 
determination of nonattainment is improper and contrary to law.
    Response: We disagree that EPA's determination here that the NY-NJ-
CT area failed to attain the one-hour ozone standard triggers any CAA 
section 179(d) requirement to prepare and submit SIP revisions. A new 
section 179(d) ozone plan, triggered by section 179(c) is not an 
applicable anti-backsliding requirement under EPA's anti-backsliding 
regulations. As EPA has explained in other rulemakings, only those 
anti-backsliding requirements that were specifically retained are 
applicable, and the requirements of section 179(c) and (d) are not 
included. See 76 FR 82133 (December 30, 2011). As EPA stated in its 
proposal, the only anti-backsliding measures that pertain to this 
determination of failure to meet the one-hour deadline are one-hour 
contingency measures for failure to attain and section 185 penalty 
fees.
    Moreover, under EPA's Clean Data Policy EPA's determination that 
the area is currently attaining the one-hour ozone standard obviates 
the need for submission of any planning requirements related to 
attainment of the standard.

IV. Final Actions

    EPA is making four separate and independent determinations related 
to the NY-NJ-CT one-hour and 1997 eight-hour ozone nonattainment areas. 
These determinations are based upon complete, quality-assured and 
certified ozone monitoring data. First, with respect to the one-hour 
ozone standard, and pursuant to EPA's authority to ensure 
implementation of one-hour ozone anti-backsliding requirements and CAA 
section 301, EPA is determining that data for 2005-2007 show that the 
NY-NJ-CT area previously failed to attain the one-hour ozone standard 
by its applicable November 15, 2007 attainment deadline. Second, and 
more importantly, EPA is determining that the NY-NJ-CT area is 
currently attaining the one-hour ozone standard, based on more recent 
complete, quality-assured and certified data for 2008-2010. Quality-
assured ozone monitoring data in the AQS for 2011 indicate the area 
continues to attain the revoked one-hour ozone standard.
    Third, with respect to the 1997 eight-hour ozone standard, in 
accordance with section 181(b) of the CAA, EPA is determining that 
complete, quality-assured and certified ozone monitoring data for 2007-
2009 show the NY-NJ-CT eight-hour ozone nonattainment area attained the 
1997 eight-hour ozone standard by its June 15, 2010 attainment 
deadline. Fourth, EPA is also determining that the NY-NJ-CT eight-hour 
ozone nonattainment area currently continues to attain the eight-hour 
ozone NAAQS, based on complete, quality-assured and certified data for 
2008-2010. Quality-assured ozone monitoring data in the AQS for 2011 
indicate the area continues to attain the 1997 eight-hour ozone 
standard.
    As provided in 40 CFR 51.918, EPA's determination that the area has 
attained the eight-hour ozone standard suspends the requirements under 
section 182(b)(1) for submission of the attainment demonstration, 
reasonable further progress plan, contingency measures and any other 
planning SIP relating to attainment of the 1997 eight-hour NAAQS. This 
suspension of requirements is effective for so long as the area 
continues to attain the 1997 eight-hour ozone standard.
    For the reasons stated in its proposed notice and response to 
comments here, EPA is also withdrawing the May 8, 2009 proposed 
disapprovals of Connecticut's and New Jersey's eight-hour ozone 
attainment demonstrations for the NY-NJ-CT eight-hour ozone 
nonattainment area.

V. Statutory and Executive Order Reviews

    These actions, make attainment determinations based on air quality 
and result in the suspension of certain Federal requirements, will not 
impose additional requirements beyond those imposed by state law, or 
will not impose any requirements beyond those required by Federal 
statute. For these reasons, these actions:
     Are not ``significant regulatory actions'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are 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.);
     Do 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);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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
     Do 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.
    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

[[Page 36169]]

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 August 17, 2012. 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 section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: May 15, 2012.
Judith A. Enck,
Regional Administrator, Region 2.
    Dated: May 27, 2012.
H. Curtis Spalding,
Regional Administrator, Region 1.

    Part 52, 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 H--Connecticut

0
2. Section 52.377 is amended by adding paragraphs (j) and (k) to read 
as follows:

Sec.  52.377  Control strategy: Ozone.

* * * * *
    (j) Determination of Attainment for the One-Hour Ozone Standard. 
Effective July 18, 2012, EPA is determining that the New York-Northern 
New Jersey-Long Island (NY-NJ-CT) one-hour ozone nonattainment area did 
not meet its applicable one-hour ozone attainment date of November 15, 
2007, based on 2005-2007 complete, quality-assured and certified ozone 
monitoring data. Separate from and independent of this determination, 
EPA is determining that the New York-Northern New Jersey-Long Island 
(NY-NJ-CT) one-hour ozone nonattainment area has attained the one-hour 
ozone standard, based on 2008-2010 complete, quality-assured and 
certified ozone monitoring data at all monitoring sites in the area and 
data showing the area continued to attain through 2011.
    (k) Determination of Attainment for the Eight-Hour Ozone Standard. 
Effective July 18, 2012 EPA is determining, that complete, quality-
assured and certified ozone monitoring data for 2007-2009 show the NY-
NJ-CT eight-hour ozone nonattainment area attained the 1997 eight-hour 
ozone standard by its June 15, 2010 attainment deadline. Therefore, EPA 
has met the requirement pursuant to CAA section 181(b)(2)(A) to 
determine, based on the area's air quality data as of the attainment 
date, whether the area attained the standard. EPA also determined that 
the NY-NJ-CT nonattainment area will not be reclassified for failure to 
attain by its applicable attainment date under section 181(b)(2)(A). 
EPA is also determining that the NY-NJ-CT eight-hour ozone 
nonattainment area currently continues to attain the eight-hour ozone 
NAAQS, based on complete, quality-assured and certified data for 2008-
2010 and data through 2011. This determination, in accordance with 40 
CFR 51.918, suspends the requirements for this area to submit an 
attainment demonstration, associated reasonably available control 
measures, a reasonable further progress plan, contingency measures, and 
other planning SIPs related to attainment of the standard for as long 
as this area continues to meet the 1997 annual eight-hour ozone NAAQS.

Subpart FF--New Jersey

0
3. Section 52.1576 is amended by designating the existing text as 
paragraph (a), adding and reserving paragraph (b), and adding new 
paragraphs (c) and (d) to read as follows:

Sec.  52.1576  Determinations of attainment.

* * * * *
    (c) Based upon EPA's review of the air quality data for the three-
year period 2005 to 2007, EPA determined, as of June 18, 2012, that the 
New York-Northern New Jersey-Long Island (NY-NJ-CT) one-hour ozone 
nonattainment area did not meet its applicable one-hour ozone 
attainment date of November 15, 2007. Separate from and independent of 
this determination, based on 2008-2010 complete, quality-assured ozone 
monitoring data at all monitoring sites in the area, and data for 2011, 
EPA determined, as of June 18, 2012, that the NY-NJ-CT one-hour ozone 
nonattainment area has attained the one-hour ozone standard.
    (d) Based upon EPA's review of complete, quality-assured and 
certified air quality data for the three-year period 2007 to 2009, and 
data for 2011, EPA determined, as of June 18, 2012, that the New York-
Northern New Jersey-Long Island (NY-NJ-CT) eight-hour ozone moderate 
nonattainment area attained the 1997 eight-hour ozone NAAQS by the 
applicable attainment date of June 15, 2010. Therefore, EPA has met the 
requirement pursuant to CAA section 181(b)(2)(A) to determine, based on 
the area's air quality data as of the attainment date, whether the area 
attained the standard. EPA also determined that the NY-NJ-CT 
nonattainment area will not be reclassified for failure to attain by 
its applicable attainment date under section 181(b)(2)(A).

0
4. Section 52.1582 is amended by designating paragraph (n) as paragraph 
(n)(1), and adding new paragraph (n)(2) to read as follows:

Sec.  52.1582  Control strategy and regulations: Ozone.

* * * * *
    (n) Attainment determination. (1) * * *
    (2) EPA has determined, as of June 18, 2012, that based on 2007 to 
2009 complete, quality-assured and certified ambient air quality data, 
additional data showing continued attainment through 2011, the New 
York-Northern New Jersey-Long Island, NY-NJ-CT, eight-hour ozone 
moderate nonattainment area has attained the 1997 eight-hour ozone 
NAAQS. This determination, in accordance with 40 CFR 51.918, suspends 
the requirements for this area to submit an attainment demonstration, 
associated reasonably available control measures, a reasonable further 
progress plan, contingency measures, and other planning SIPs related to 
attainment of the standard for as long as this area continues to meet 
the 1997 annual eight-hour ozone NAAQS.

Subpart HH--New York

0
5. Section 52.1679 is added to read as follows:

[[Page 36170]]

Sec.  52.1679  Determinations of attainment.

    (a) Based upon EPA's review of complete, quality-assured air 
quality data for the 3-year period 2005 to 2007, EPA determined, as of 
June 18, 2012, that the New York-Northern New Jersey-Long Island (NY-
NJ-CT) one-hour ozone nonattainment area did not meet its applicable 
one-hour ozone attainment date of November 15, 2007. Separate from and 
independent of this determination, based on 2008-2010 complete, 
quality-assured ozone monitoring data at all monitoring sites in the 
area, and data for 2011, EPA determined, as of June 18, 2012, that the 
NY-NJ-CT one-hour ozone nonattainment area met the one-hour ozone 
NAAQS.
    (b) Based upon EPA's review of complete, quality-assured and 
certified air quality data for the 3-year period 2007 to 2009, and data 
for 2011, EPA determined, as of June 18, 2012, that the New York-
Northern New Jersey-Long Island (NY-NJ-CT) eight-hour ozone moderate 
nonattainment area attained the 1997 eight-hour ozone NAAQS by the 
applicable attainment date of June 15, 2010. Therefore, EPA has met the 
requirement pursuant to CAA section 181(b)(2)(A) to determine, based on 
the area's air quality data as of the attainment date, whether the area 
attained the standard. EPA also determined that the NY-NJ-CT 
nonattainment area will not be reclassified for failure to attain by 
its applicable attainment date under section 181(b)(2)(A).

0
6. Section 52.1683 is amended by adding new paragraph (f)(2)(viii) to 
read as follows:

Sec.  52.1683  Control strategy: Ozone.

* * * * *
    (f) * * *
    (2) * * *
    (viii) New York-Northern New Jersey-Long Island, NY-NJ-CT, eight-
hour ozone moderate nonattainment area (consisting of the Bronx, Kings, 
Nassau, New York, Queens, Richmond, Rockland, Suffolk and Westchester 
Counties) as of June 15, 2010 and data showing the area continued to 
attain through 2011.
* * * * *
[FR Doc. 2012-14716 Filed 6-15-12; 8:45 am]
BILLING CODE 6560-50-P
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