3720 Federal Register / Vol. 77, No. 16 / Wednesday, January 25, 2012 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2011–0956; FRL–9623–2] 

Determination of Failure To Attain the 

One-Hour Ozone Standard by 2007, 

Determination of Current Attainment of 

the One Hour Ozone Standard, 

Determinations of Attainment of the 

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: Proposed rule. 

SUMMARY: EPA is proposing four 

separate and independent 

determinations related to the New YorkNorthern New Jersey-Long Island (NY– 

NJ–CT) one-hour and 1997 eight-hour 

ozone nonattainment areas. The 

boundaries of the one-hour and eighthour ozone nonattainment areas differ 

slightly. If EPA’s determination that the 

area is currently attaining the eight-hour 

standard is finalized, EPA’s ozone 

implementation regulation 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: Comments must be received on 

or before February 24, 2012. Public 

comments on this action are requested 

and will be considered before taking 

final action. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R02– 

OAR–2011–0956, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: Werner.Raymond@epa.gov 

• 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–2011– 

0956. 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. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning EPA’s 

proposed 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 proposed 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 EPA’s proposed actions? 

II. What is the background for these proposed 

actions? 

III. What is the rationale for and effect of 

these proposed determinations? 

A. One-Hour Ozone Determinations 

B. Eight-Hour Ozone Determinations 

IV. How does EPA compute whether an area 

complies with the one-hour ozone 

standard? 

V. How does EPA compute whether an area 

complies with the 1997 eight-hour ozone 

standard? 

VI. What are EPA’s analyses of data regarding 

attainment of the one-hour and 1997 

eight-hour ozone standards in the NY-NJCT areas? 

A. Data for the One-Hour Ozone Standard 

B. Data for the 1997 eight-hour ozone 

standard 

VII. Proposed Actions 

VIII. Statutory and Executive Order Reviews 

I. What are EPA’s proposed actions? 

EPA is proposing four separate and 

independent determinations. First, with 

respect to the one-hour ozone NAAQS, 

EPA is proposing to determine that the 

New York-Northern New Jersey-Long 

Island (NY-NJ-CT) one-hour ozone 

nonattainment area previously failed to 

attain the one-hour NAAQS by its 

applicable attainment deadline of 

November 15, 2007 (based on complete 

quality-assured and certified ozone 

monitoring data for 2005–2007). 

Second, and also with respect to the 

one-hour ozone NAAQS, EPA is 

proposing to determine that the area is 

currently attaining the one-hour 

standard based on complete, qualityassured and certified ozone monitoring 

data for 2008–2010. Preliminary ozone 

monitoring data for 2011 indicate the 

area continues to attain the one-hour 

ozone standard. 

The third and fourth proposed 

determinations concern the 1997 eighthour ozone NAAQS. EPA is proposing 

to determine that the NY-NJ-CT eighthour 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. Finally, EPA is also 

proposing to determine 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. 

Preliminary data for 2011 indicate that 

the area continues to attain the 1997 


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1CFR refers to the Code of Federal Regulations, 

in this case Title 40 part 51. 

2Final Rule to Implement the 8-Hour Ozone 

National Ambient Air Quality Standard—Phase 1, 

69 FR 23951 (April 30, 2004). 

eight-hour ozone standard. If EPA’s 

determination that the area is currently 

attaining the eight-hour standard is 

finalized, 40 CFR 51.918 1 of EPA’s 

ozone implementation rule 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. 

In addition to these proposed 

determinations, EPA is intending to 

withdraw EPA’s proposed disapprovals 

of the CT and NJ 1997 eight-hour ozone 

attainment demonstrations, which were 

previously published in the Federal 

Register on May 8, 2009 (74 FR 21568 

and 21578), provided that EPA finalizes 

its proposed determination here that the 

area is currently attaining the 1997 

eight-hour ozone standard. 

In order to determine the areas’ air 

quality status for purposes of the 

proposed determinations, 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 is discussed 

at length below. 

II. What is the background for these 

proposed actions? 

The boundaries for the NY-NJ-CT onehour 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: The Bergen, 

Essex, Hudson, Hunterdon, Middlesex, 

Monmouth, Morris, Ocean, Passaic, 

Somerset, Sussex, and Union Counties 

in New Jersey; the 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. 

Each area of the country that was 

designated nonattainment for the onehour 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 FR38856), EPA 

promulgated a new, more protective 

standard for ozone based on eight-hour 

average concentrations (the ‘‘1997 eighthour 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 other areas of the 

country, effective June 15, 2005. (See, 40 

CFR 50.9(b); 69 FR at 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 eighthour 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 antibacksliding 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 onehour contingency measures or major 

source penalty fee programs among the 

measures retained as one-hour ozone 

anti-backsliding requirements.2

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 antibacksliding 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 onehour ozone NAAQS contingency 

measures. EPA has issued a proposed 

rule that would remove the vacated 

provisions of 40 CFR 51.905(e), and that 

addresses 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). 

III. What is the rationale for and effect 

of these proposed determinations? 

A. One-Hour Ozone Determinations 

After revocation of the one-hour 

ozone standard, EPA must continue to 

provide a mechanism to give effect to 

the one-hour anti-backsliding 

requirements. See South Coast v. EPA, 

47 F.3d 882, at 903. In keeping with this 

responsibility with respect to one-hour 

anti-backsliding contingency measures 

and section 185 fee programs for the 

NY-NJ-CT one hour ozone area, EPA 

proposes to determine that the NY-NJCT area failed to attain the one-hour 

ozone standard by its applicable 

attainment date. Consistent with 40 CFR 

51.905(e)(2) and the South Coast court 

decision, upon revocation of the onehour ozone NAAQS for an area, EPA is 

no longer obligated to determine 

whether an area has attained the onehour NAAQS by its applicable deadline, 

except insofar as it relates to 

effectuating the anti-backsliding 

requirements that are specifically 

retained. EPA’s proposed determination 

here—that the area did not attain the 

one-hour ozone standard by the 

November 15, 2007 deadline (based on 

data for 2005–2007) is linked solely to 

two required one-hour anti-backsliding 

measures: i.e., one-hour contingency 

measures for failure to attain under 

section 172(c)(9), and fee programs 

under sections 182(d)(3), 182(f) and 185. 

A final determination of failure to 

attain by the area’s 2007 attainment date 

will not result in reclassification of the 

area under the revoked one-hour 

standard. As a severe one-hour 

nonattainment area, the NY-NJ-CT area 

is not subject to reclassification for the 

one-hour standard, and in any event 

EPA is no longer required to reclassify 


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3722 Federal Register / Vol. 77, No. 16 / Wednesday, January 25, 2012 / Proposed Rules 

3The U.S. Court of Appeals for the District of 

Columbia Circuit upheld the provisions of 40 CFR 

51.918, which codified the Clean Data Policy. 

Previously Courts of Appeals for several other 

Circuits upheld the Clean Data Policy under the 

one-hour standard. See NRDC v. EPA,571 F.3d 1245 

(D.C. Cir. 2009); Sierra Club v. EPA, 99 F. 3d 1551 

(10th Cir.1996); Sierra Club v. EPA, 375 F.3d 

537(7th Cir. 2004) and Our Children’s Earth 

Foundation v. EPA, No. 04–73032 (9thCir. June 28, 

2005) (memorandum opinion). 

4EPA approved the RFP plan for New Jersey on 

May 15, 2009 (74 FR 22837) and the RFP plan for 

New York on August 18, 2011 (76 FR 51264). EPA 

proposed approval of the RFP plan for Connecticut 

on September 20, 2010 (75 FR 57221). 

5A determination that the area is currently 

attaining the 1997 eight-hour ozone standard is not 

equivalent to a redesignation of the area to 

attainment for that standard. Attainment of the 

ozone NAAQS is only one of the criteria set forth 

in CAA section 107(d)(3)(E) that must be satisfied 

for an area to be redesignated to attainment. To be 

redesignated, the state must submit and receive full 

approval of a redesignation request for the area that 

satisfies all of the criteria of section 107(d)(3)(E), 

including a demonstration that the improvement in 

the area’s air quality is due to permanent and 

enforceable reductions and a fully-approved SIP 

meeting all of the applicable requirements under 

section 110 and part D and a fully-approved 

maintenance plan for the 1997 eight-hour ozone 

standard. If, however, the determination of current 

attainment for the 1997 eight-hour standard is 

finalized, and EPA subsequently determines after 

notice and comment rulemaking in the Federal 

Register that the area has violated the standard, the 

basis for the suspension of these requirements for 

the area would no longer exist, and the area would 

thereafter have to address the pertinent submission 

requirements within a reasonable period of time. 

EPA would establish that time period, taking into 

account the circumstances surrounding the 

particular submissions at issue. 

any area to a higher classification for the 

one-hour ozone NAAQS based upon a 

determination that the area failed to 

attain that NAAQS by its attainment 

date. 40 CFR 51.905(e)(2)(i)(B). 

EPA’s proposed determination that 

the area failed to attain the one-hour 

ozone standard by its applicable date, if 

finalized, would bear on the area’s 

obligations with respect to two one-hour 

ozone anti-backsliding requirements 

whose implementation is triggered by a 

finding of failure to attain by the 

applicable attainment date: Section 

172(c)(9) contingency measures for 

failure to attain and sections 182(d)(3) 

and 185 major stationary source fee 

programs. 

With respect to the one-hour ozone 

anti-backsliding requirement for 

contingency measures, EPA has 

previously approved all of the States’ 

one-hour ozone attainment 

demonstrations, reasonable further 

progress plans, and contingency plans 

for this area. See 67 FR 5152 (February 

4, 2002) for New Jersey, 67 FR 5170 

(February 4, 2002) for New York, and 66 

FR 63921 (December 11, 2001) for 

Connecticut. 

Moreover, EPA is also proposing a 

separate and independent one-hour 

ozone determination—that the NY-NJCT area currently attains the one-hour 

ozone standard, based on complete, 

quality-assured and certified ozone data 

for 2008–2010, and preliminary data 

available for 2011. If this determination 

is finalized, then even if EPA finalizes 

its proposed determination that the area 

failed to attain by the 2007 deadline, it 

will not result in any one-hour ozone 

contingency measure obligations for the 

area. Under EPA’s ‘‘Clean Data Policy’’ 

interpretation, which was first 

articulated for the one-hour standard 

and then codified for the eight-hour 

ozone standard (40 CFR 51.918),3 a 

determination of attainment suspends 

obligations for attainment-related 

requirements for that standard, 

including contingency measures. See, 

for example, determination of one-hour 

ozone attainment for Baton Rouge, 75 

FR 6570 (February 10, 2010). With 

respect to the one-hour ozone antibacksliding requirement for penalty 

fees, section 182(d)(3) requires SIPs to 

include provisions required by section 

185. Section 185 requires one-hour 

ozone SIPs for severe areas to provide 

that, if the area has failed to attain by 

the attainment date, each major 

stationary source of ozone precursors 

located in the area must begin paying a 

fee to the state. Thus a final 

determination of failure to attain by the 

area’s one-hour attainment date would 

trigger the one-hour anti-backsliding 

obligation to implement the penalty fee 

program under section 182(d)(3), 182(f) 

and 185, unless that obligation is 

terminated. 

B. Eight-Hour Ozone Determinations 

EPA proposes to determine, in 

accordance with section 181(b)(2), that 

the NY-NJ-CT area attained the 1997 

eight-hour ozone standard by the 

applicable deadline for that standard, 

June 15, 2010. This proposed 

determination is based on complete, 

quality-assured and certified data for 

2007–2009. If EPA finalizes this 

determination, the area will be not be 

reclassified, there will be no obligation 

with respect to contingency measures 

for failure to attain by the attainment 

deadline, nor any other consequence 

that would have resulted had the area 

failed to attain by its attainment date. 

In addition, EPA is separately and 

independently proposing to determine 

that the NY-NJ-CT area is currently 

attaining the 1997 eight-hour ozone 

standard, based on complete qualityassured and certified data for 2008–2010 

and preliminary data for 2011 that 

indicate continued attainment. EPA’s 

ozone implementation rule at 40 CFR 

51.900–918, promulgated under sections 

172 and 182 of the Clean Air Act, 

describes the Clean Air Act 

requirements for areas designated 

nonattainment for the 1997 eight-hour 

ozone standard. For areas that attain the 

standard, section 51.918 of the 

implementation rule provides that, 

upon a determination of attainment by 

EPA, 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 (RFP) plans 4 and contingency 

measures, shall be suspended. EPA’s 

action only suspends the requirements 

to submit the SIP revisions discussed 

above.5

EPA is also intending to withdraw our 

previous proposed disapprovals of the 

ozone attainment demonstrations 

submitted by Connecticut and New 

Jersey for the NY–NJ–CT eight-hour 

ozone nonattainment area, provided that 

EPA finalizes its proposed 

determination that the area is currently 

attaining the 1997 eight-hour ozone 

standard. 

IV. How does EPA compute whether an 

area complies with the one-hour ozone 

standard? 

Although the one-hour ozone NAAQS 

as promulgated in 40 CFR 50.9 includes 

no discussion of specific data handling 

conventions, EPA’s publicly articulated 

position and the approach long since 

universally adopted by the air quality 

management community is that the 

interpretation of the one-hour ozone 

standard requires rounding ambient air 

quality data consistent with the stated 

level of the standard, which is 0.12 

ppm. 40 CFR 50.9(a) states that: ‘‘The 

level of the national one-hour primary 

and secondary ambient air quality 

standards for ozone * * * is 0.12 parts 

per million. * * * The standard is 

attained when the expected number of 

days per calendar year with maximum 

hourly average concentrations above 

0.12 parts per million * * * is equal to 

or less than 1, as determined by 

appendix H to this part.’’ Thus, 

compliance with the NAAQS is based 

on comparison of air quality 

concentrations with the standard and on 

how many days that standard has been 

exceeded, adjusted for the number of 

missing days. 

For comparison with the NAAQS, 

EPA has clearly communicated the data 

handling conventions for the one-hour 

ozone NAAQS in guidance documents. 

As early as 1979, EPA issued guidance 

stating that the level of our NAAQS 


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dictates the number of significant 

figures to be used in determining 

whether the standard was exceeded. 

The stated level of the standard is taken 

as defining the number of significant 

figures to be used in comparisons with 

the standard. For example, a standard 

level of 0.12 ppm means that 

measurements are to be rounded to two 

decimal places (0.005 rounds up), and, 

therefore, 0.125 ppm is the smallest 

concentration value in excess of the 

level of the standard. (See, ‘‘Guideline 

for the Interpretation of Ozone Air 

Quality Standards,’’ EPA–450/4–79– 

003, OAQPS No. 1.2–108, January 

1979.) EPA has consistently applied the 

rounding convention in this 1979 

guideline. See, 68 FR 19106, 19111 

(April 17, 2003), 68 FR 62041, 62043 

(October 31, 2003), and 69 FR 21717, 

21720 (April 22, 2004). Then, EPA 

determines attainment status under the 

one-hour ozone NAAQS on the basis of 

the annual average number of expected 

exceedances of the NAAQS over a threeyear period. (See, 60 FR 3349 (January 

17, 1995) and see, also, ‘‘General 

Preamble for the Implementation of 

Title I of the Clean Air Act Amendments 

of 1990,’’ at 57 FR 13498, 13506 (April 

16, 1992) (‘‘General Preamble’’)). EPA’s 

determination is based upon data that 

has been collected and quality-assured 

in accordance with 40 CFR part 58, and 

recorded in EPA’s Air Quality System 

(AQS) database, (formerly known as the 

Aerometric Information Retrieval 

System (AIRS)). To account for missing 

data, the procedures found in appendix 

H to 40 CFR part 50 are used to adjust 

the actual number of monitored 

exceedances of the standard to yield the 

annual number of expected exceedances 

(‘‘expected exceedance days’’) at an air 

quality monitoring site. EPA determines 

whether an area has attained the onehour ozone NAAQS by calculating, at 

each monitor, the average expected 

number of days over the standard per 

year (i.e., ‘‘average number of expected 

exceedance days’’) during the applicable 

3-year period. See, generally, the 

General Preamble, 57 FR 13498, April 

16, 1992 and Memorandum from D. 

Kent Berry, Acting Director, Air Quality 

Management Division, EPA, to Regional 

Air Office Directors, ‘‘Procedures for 

Processing Bump Ups and Extensions 

for Marginal Ozone Nonattainment 

Areas,’’ February 3, 1994. The term 

‘‘exceedance’’ is used throughout this 

document to describe a daily maximum 

ozone measurement that is equal to or 

exceeds 0.125 ppm which is the level of 

the standard after rounding. An area 

violates the ozone standard if, over a 

consecutive 3-year period, more than 3 

days of expected exceedances occur at 

the same monitor. For more information 

please refer to 40 CFR 50.9 ‘‘National 

one-hour primary and secondary 

ambient air quality standards for ozone’’ 

and ‘‘Interpretation of the 1–Hour 

Primary and Secondary National 

Ambient Air Quality Standards for 

Ozone’’ (40 CFR part 50, appendix H). 

V. How does EPA compute whether an 

area complies with the 1997 eight-hour 

ozone standard? 

An area achieves attainment of the 

eight-hour ozone standard when an 

area’s monitoring sites all have a design 

value of less than 0.085 ppm, calculated 

as described in 40 CFR part 50, 

Appendix I. The design value is the 

average of each year’s fourth highest 

concentration, over a three year period, 

as described in Appendix I to 40 CFR 

part 50. From 40 CFR part 50, Appendix 

I, Section 2.2: 

The standard-related summary statistic is 

the annual fourth-highest daily maximum 

eight-hour average ozone concentration, 

expressed in parts per million, averaged over 

three years. The 3-year average shall be 

computed using the three most recent, 

consecutive calendar years of monitoring 

data meeting the data completeness 

requirements described in this appendix. The 

computed 3-year average of the annual 

fourth-highest daily maximum eight-hour 

average ozone concentrations shall be 

expressed to three decimal places (the 

remaining digits to the right are truncated.) 

This proposed action addresses only 

the 1997 eight-hour ozone standard, and 

does not address the ozone standard 

that EPA established in 2008, or any 

future ozone standard. This proposed 

action does not affect and is not affected 

by future air quality designations for the 

2008 ozone standard. 

VI. What are EPA’s analyses of data 

regarding attainment of the one-hour 

and 1997 eight-hour ozone standards in 

the NY-NJ-CT areas? 

New York, New Jersey, and 

Connecticut submitted requests for EPA 

to make ‘‘Clean Data’’ determinations 

regarding whether the NY-NJ-CT area is 

currently attaining both the one-hour 

and eight-hour ozone standards. These 

requests were dated June 16, 2011, 

January 19, 2011, and April 29, 2011, 

respectively. These requests, and EPA’s 

proposed determinations, are based 

upon complete, quality-assured, 

certified ambient air monitoring data. 

These data are summarized in the tables 

below, along with EPA’s evaluation of 

whether these areas are currently 

attaining the one-hour ozone and eighthour ozone NAAQS. In addition, EPA 

evaluated the data to determine whether 

the area attained the one-hour ozone 

standard by the applicable deadline for 

that standard (November 15, 2007), and 

whether the area met its 1997 eight-hour 

ozone attainment deadline (June 15, 

2010). All of the data on which EPA has 

based its evaluations are also available 

to the public through the FOR FURTHER

INFORMATION CONTACT section and via 

www.epa.gov/ttn/airs/airsaqs/. 

A. Data for the One-Hour Ozone 

Standard 

For the time periods 2005–2007 

through 2008–2010, Table 1 shows the 

average number of expected one-hour 

ozone exceedances per year for each 

ozone monitor in the NY-NJ-CT ozone 

nonattainment area. The standard for 

the one-hour ozone NAAQS is 0.12 ppm 

and attainment is achieved when the 

number of expected exceedances is 1.0 

or less averaged over a three year 

period. The data for 2005–2007 show 

that the area did not attain the one-hour 

ozone standard by the applicable 

attainment date of November 15, 2007, 

since the area maximum expected 

exceedance rate is above 1.0. The data 

for 2008–2010, however, show that the 

area is now attaining the one-hour 

ozone standard, since the area 

maximum expected exceedance rate is 

below 1.0. Preliminary data available for 

2011 indicate that the area continues to 

attain the one-hour ozone standard. 

TABLE 1—ONE-HOUR OZONE DATA FOR THE NY-NJ-CT OZONE MONITORS

Monitor information Average number of expected exceedance days per year 

State Monitor name, county AQS ID 2005–2007 2006–2008 2007–2009 2008–2010 

CT ................ Greenwich, Fairfield Co ....................................... 090010017 1.3 1.3 0.3 0.3 

CT ................ Danbury, Fairfield Co ........................................... 090011123 3.0 1.3 1.0 0.0 

CT ................ Stratford, Fairfield Co ........................................... 090013007 1.4 1.4 0.3 0.3 

CT ................ Westport, Fairfield Co .......................................... 090019003 1.3 1.3 0.3 0.3 


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3724 Federal Register / Vol. 77, No. 16 / Wednesday, January 25, 2012 / Proposed Rules 

TABLE 1—ONE-HOUR OZONE DATA FOR THE NY-NJ-CT OZONE MONITORS—Continued 

Monitor information Average number of expected exceedance days per year 

State Monitor name, county AQS ID 2005–2007 2006–2008 2007–2009 2008–2010 

NJ ................ Teaneck, Bergen Co ............................................ 340030005 * * * * 

NJ ................ Leonia, Bergen Co ............................................... 340030006 * * * 0.0 

NJ ................ Newark-Fire House, Essex Co ............................ 340130003 * * * * 

NJ ................ Bayonne, Hudson Co ........................................... 340170006 0.3 0.0 0.0 0.0 

NJ ................ Flemington, Hunterdon Co ................................... 340190001 0.3 0.3 0.3 0.0 

NJ ................ Rutgers University, Middlesex Co ....................... 340230011 1.3 0.7 0.0 0.0 

NJ ................ Monmouth University, Monmouth Co .................. 340250005 0.3 0.0 0.0 0.0 

NJ ................ Chester, Morris Co ............................................... 340273001 0.0 0.0 0.0 0.0 

NJ ................ Colliers Mills, Ocean Co ...................................... 340290006 0.7 0.0 0.0 0.0 

NJ ................ Ramapo, Passaic Co ........................................... 340315001 0.0 0.0 0.0 0.0 

NY ............... Botanical Gardens/Harding Lab, Bronx Co ......... 360050083 * * * * 

NY ............... IS 52, Bronx Co ................................................... 360050110 0.0 0.0 0.0 0.0 

NY ............... Botanical Gardens/Pfizer Lab, Bronx Co ............. 360050133 * * 0.0 0.0 

NY ............... CCNY, New York Co ........................................... 360610135 * * 0.0 0.0 

NY ............... Queens College II, Queens Co ........................... 360810124 0.0 0.0 0.0 0.0 

NY ............... Susan Wagner, Richmond Co ............................. 360850067 0.3 0.0 0.0 0.3 

NY ............... Rockland County, Rockland Co ........................... 360870005 * * * * 

NY ............... Babylon, Suffolk Co ............................................. 361030002 1.4 1.0 0.0 0.4 

NY ............... Riverhead, Suffolk Co .......................................... 361030004 1.4 1.7 0.7 0.7 

NY ............... Holtsville, Suffolk Co ............................................ 361030009 * 1.2 0.0 0.0 

NY ............... White Plains, Westchester Co ............................. 361192004 1.7 1.8 1.4 0.4 

Highest Maximum Expected Exceedance Rate for each 3-year Period ................. 3.0 1.8 1.4 0.7 

Source: EPA Air Quality System (AQS) Database. 

* EPA calculates the expected exceedances based on the number of times a site exceeds the 0.12 ppm standard averaged over a three-year 

period and adjusted for any missing data. These sites have less than 3 years worth of data because they are either new monitors or relocated 

monitors, due to building closures or other access issues. However, the monitoring network remains adequate because any actual exceedances 

that might have occurred at these sites would still be included in the above table, although none occurred during the time periods examined. 

B. Data for the 1997 Eight-Hour Ozone 

Standard 

Table 2 shows the design values (DV) 

by county (i.e., the 3-year average of 

annual 4th highest maximum eight-hour 

average ozone concentrations) for the 

1997 eight-hour ozone NAAQS for the 

NY–NJ–CT ozone nonattainment area 

monitors for the years 2007 through 

2010. The standard for the 1997 eighthour ozone NAAQS is 0.08 ppm. A 

monitor with a design value of 0.084 

ppm or less is meeting the 1997 eighthour ozone NAAQS. 

TABLE 2—HIGHEST DESIGN VALUES (DV) IN PARTS PER MILLION (PPM) BY COUNTY FOR THE 1997 EIGHT-HOUR OZONE

NAAQS FOR THE NY-NJ-CT MONITORS

County 2007–2009 DV 2008–2010 DV 

NEW YORK: 

Bronx ................................................................................................................................................................ 0.073 0.072 

New York .......................................................................................................................................................... * 0.073 

Queens ............................................................................................................................................................. 0.074 0.074 

Richmond .......................................................................................................................................................... 0.074 0.075 

Rockland ........................................................................................................................................................... * * 

Suffolk ............................................................................................................................................................... 0.084 0.084 

Westchester ...................................................................................................................................................... 0.083 0.077 

NEW JERSEY: 

Bergen .............................................................................................................................................................. * 0.076 

Essex ................................................................................................................................................................ * * 

Hudson ............................................................................................................................................................. 0.080 0.077 

Hunterdon ......................................................................................................................................................... 0.081 0.078 

Middlesex .......................................................................................................................................................... 0.080 0.078 

Monmouth ......................................................................................................................................................... 0.081 0.080 

Morris ................................................................................................................................................................ 0.079 0.075 

Passaic ............................................................................................................................................................. 0.076 0.074 

CONNECTICUT: 

Fairfield ............................................................................................................................................................. 0.084 0.081 

Middlesex .......................................................................................................................................................... 0.081 0.077 

New Haven ....................................................................................................................................................... 0.081 0.076 

Nonattainment Area (highest) .......................................................................................................................... 0.084 0.084 

* EPA calculates the design value based on 3 consecutive years of complete (75 percent or more data capture per year) monitored data. 

These sites have less than 3 years worth of data because they are either new monitors or relocated monitors, due to building closures or other 

access issues. 


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Federal Register / Vol. 77, No. 16 / Wednesday, January 25, 2012 / Proposed Rules 3725 

In this case, all of the monitoring sites 

had a design value less than 0.085 ppm 

based on the 2007–2009 monitoring 

period, thus showing that the area met 

its June 15, 2010 deadline to attain the 

1997 eight-hour ozone standards. The 

data in Table 2 show that the 

monitoring design values remained 

below 0.085 through 2008–2010. 

Preliminary 2011 air quality data 

indicate the area continues to attain the 

1997 eight-hour ozone standard. 

VII. Proposed Actions 

For the reasons set forth in this action, 

EPA is proposing four separate and 

independent determinations related to 

the NY-NJ-CT one-hour and 1997 eighthour 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 proposing 

to determine that data for 2005–2007 

show that the NY-NJ-CT area previously 

failed to attain the one-hour standard by 

its applicable November 15, 2007 

attainment deadline. Second, however, 

EPA is proposing to determine that the 

NY-NJ-CT area is currently attaining the 

one-hour ozone standard, based on more 

recent 2008–2010 data and preliminary 

data for 2011. These proposed 

determinations regarding the one-hour 

standard, if finalized, would bear on the 

area’s obligation with respect to onehour anti-backsliding requirements for 

section 172(c)(9) contingency measures 

for failure to attain and sections 

182(d)(3) and 185 major stationary 

source fee programs. 

Third, with respect to the 1997 eighthour ozone standard, in accordance 

with section 181(b) of the CAA, EPA 

proposes to determine that data for 

2007–2009 show the NY-NJ-CT eighthour ozone nonattainment area attained 

the 1997 eight-hour ozone standard by 

its June 15, 2010 attainment deadline. 

Fourth, EPA is also proposing to 

determine that the NY-NJ-CT eight-hour 

ozone nonattainment area currently 

continues to attain the eight-hour ozone 

NAAQS, based on data for 2008–2010 

and preliminary data for 2011. 

As provided in 40 CFR 51.918, if 

EPA’s determination that the area has 

attained the eight-hour ozone standard 

is made final, it would suspend 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 would be effective as long 

as the area continues to attain the 1997 

eight-hour ozone standard. 

EPA’s proposed determination that 

the area is currently attaining the 1997 

eight-hour ozone NAAQS is contingent 

upon continued monitoring and 

continued attainment of that NAAQS. If 

the determination that the area is 

currently attaining the 1997 eight-hour 

ozone NAAQS is finalized and EPA 

subsequently determines, after notice 

and comment rulemaking, that the area 

has subsequently violated the standard, 

the basis for the suspension of 

obligations with respect to 1997 eighthour ozone attainment-related planning 

requirements would no longer exist, and 

the area would thereafter have to 

address the pertinent requirements. 

It is EPA’s intent to withdraw the May 

8, 2009 proposed disapprovals of 

Connecticut’s and New Jersey’s eighthour ozone attainment demonstrations 

for the NY-NJ-CT eight-hour ozone 

nonattainment area, provided that EPA 

finalizes its determination that the area 

currently attains the 1997 eight-hour 

ozone standard. 

EPA is soliciting public comments on 

the issues discussed in this action. EPA 

will consider these comments before 

taking final action. Interested parties 

may participate in the Federal 

rulemaking procedure by submitting 

written comments to EPA as discussed 

in the ADDRESSES section of this Federal 

Register. 

VIII. Statutory and Executive Order 

Reviews 

These actions include proposals to 

make attainment determinations based 

on air quality, and would if finalized, 

result in the suspension of certain 

Federal requirements, would not impose 

additional requirements beyond those 

imposed by state law, or would not 

impose any requirements beyond those 

required by Federal statute. 

For these reasons, these proposed 

actions: 

• Are 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); 

• 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 an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Are not a significant regulatory 

action 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Nitrogen oxides, 

Ozone, Volatile organic compounds, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

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

Dated: December 8, 2011. 

Judith A. Enck, 

Regional Administrator, Region 2. 

Dated: January 11, 2012. 

H. Curtis Spalding, 

Regional Administrator, Region 1. 

[FR Doc. 2012–1518 Filed 1–24–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 721 

[EPA–HQ–OPPT–2010–1075; FRL–9335–4] 

RIN 2070–AB27 

Proposed Significant New Use Rules 

on Certain Chemical Substances; 

Extension of Comment Period 

AGENCY: Environmental Protection 

Agency (EPA). 


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