[Federal Register Volume 62, Number 245 (Monday, December 22, 1997)]
[Rules and Regulations]
[Pages 66822-66825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33080]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY 26-2-176a; FRL-5936-8]


Determination of Attainment of the One-Hour Ozone Standard for 
the Poughkeepsie, New York Ozone Nonattainment Area and Determination 
Regarding Applicability of Certain Reasonable Further Progress and 
Attainment Demonstration Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is determining, through direct final procedure, that 
the Poughkeepsie moderate ozone nonattainment area in New York has 
attained the one-hour National Ambient Air Quality Standard (NAAQS) for 
ozone. This determination is based upon three years of complete, 
quality assured ambient air monitoring data for the years 1995-97. This 
data demonstrates that the one-hour ozone NAAQS has been attained in 
this area. On the basis of this determination, EPA is also determining 
that certain reasonable further progress and attainment demonstration 
requirements, along with certain other related requirements, of Part D 
of Title 1 of the Clean Air Act are not applicable to this area.
    In the proposed rules section of this Federal Register, EPA is 
proposing this determination and soliciting public comment on it. If 
adverse comments are received on this direct final rule, EPA will 
withdraw this final rule and address these comments in a final rule on 
the related proposed rule which is being published in the proposed 
rules section of this Federal Register.

DATES: This action will be effective Febraury 5, 1998 unless adverse or 
critical comments are received by January 21, 1998. If the effective 
date is delayed, a timely document will be published in the Federal 
Register.

ADDRESSES: Written comments should be mailed to Ronald Borsellino, 
Chief, Air Programs Branch, Environmental Protection Agency, Region 2, 
290 Broadway, New York, NY 10007-1866. Copies of the relevant material 
for this notice are available for inspection during normal business 
hours at: Environmental Protection Agency, Region 2 Office, Air 
Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-
1866.

FOR FURTHER INFORMATION CONTACT: Robert F. Kelly, Air Programs Branch, 
Environmental Protection Agency, Region 2, at the above address. Phone: 
212-637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

    Subpart 2 of Part D of Title I of the Clean Air Act (CAA) contains 
various air quality planning and state implementation plan (SIP) 
submission requirements for ozone nonattainment areas. EPA has 
interpreted provisions regarding reasonable further progress (RFP) and 
attainment demonstrations, along with certain other related provisions, 
so as not to require SIP submissions if an ozone nonattainment area 
subject to those requirements is monitoring attainment of the one-hour 
ozone standard (i.e., attainment of the NAAQS is demonstrated with 
three consecutive years of complete, quality assured air quality 
monitoring data). As described below, EPA has previously interpreted 
the general provisions of subpart 1 of part D of Title I (sections 171 
and 172) so as not to require the submission of SIP revisions 
concerning RFP, attainment demonstrations, or contingency measures. As 
explained in a memorandum dated May 10, 1995 from John Seitz to the 
Regional Air Division Directors, entitled ``Reasonable Further 
Progress, Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard,'' EPA has interpreted the more specific RFP, attainment 
demonstration and related provisions of subpart 2 in the same manner.
    First, with respect to RFP, section 171(1) states that, for 
purposes of part D of Title I, RFP ``means such annual incremental 
reductions in emissions of the relevant air pollutant as are required 
by this part or may reasonably be required by the Administrator for the 
purpose of ensuring attainment of the applicable national ambient air 
quality standard by the applicable date.'' Thus, whether dealing with 
the general RFP requirement of section 172(c)(2), or the more specific 
RFP requirements of subpart 2 for classified ozone nonattainment areas 
(such as the 15 percent plan requirement of section 182(b)(1)), the 
stated purpose of RFP is

[[Page 66823]]

to ensure attainment by the applicable attainment date.<SUP>1</SUP> If 
an area has in fact attained the one-hour standard, the stated purpose 
of the RFP requirement will have already been fulfilled and EPA does 
not believe that the area needs to submit revisions providing for the 
further emission reductions described in the RFP provisions of section 
182(b)(1).
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    \1\ EPA notes that paragraph (1) of subsection 182(b) is 
entitled ``PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS'' and 
that subparagraph (B) of paragraph 182(c)(2) is entitled 
``REASONABLE FURTHER PROGRESS DEMONSTRATION,'' thereby making it 
clear that both the 15 percent plan requirement of section 182(b)(1) 
and the 3 percent per year requirement of section 182(c)(2) are 
specific varieties of RFP requirements.
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    EPA notes that it took this view with respect to the general RFP 
requirement of section 172(c)(2) in the General Preamble for the 
Interpretation of Title I of the Clean Air Act Amendments of 1990 (57 
FR 13498, April 16, 1992), and it is now extending that interpretation 
to the specific provisions of subpart 2. In the General Preamble, EPA 
stated, in the context of a discussion of the requirements applicable 
to the evaluation of requests to redesignate nonattainment areas to 
attainment, that the ``requirements for RFP will not apply in 
evaluating a request for redesignation to attainment since, at a 
minimum, the air quality data for the area must show that the area has 
already attained. Showing that the State will make RFP towards 
attainment will, therefore, have no meaning at that point.'' (57 FR at 
13564.) <SUP>2</SUP>
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    \2\ See also ``Procedures for Processing Requests to Redesignate 
Areas to Attainment,'' from John Calcagni, Director, Air Quality 
Management Division, to Regional Air Division Directors, September 
4, 1992, at page 6 (stating that the ``requirements for reasonable 
further progress * * * will not apply for redesignations because 
they only have meaning for areas not attaining the standard'') 
(hereinafter referred to as ``September 1992 Calcagni memorandum'').
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    Second, with respect to the attainment demonstration requirements 
of section 182(b)(1) an analogous rationale leads to the same result. 
Section 182(b)(1) requires that the plan provide for ``such specific 
annual reductions in emissions * * * as necessary to attain the 
national primary ambient air quality standard by the attainment date 
applicable under this Act.'' As with the RFP requirements, if an area 
has in fact monitored attainment of the one-hour standard, EPA believes 
there is no need for an area to make a further submission containing 
additional measures to achieve attainment of the one-hour standard. 
This is also consistent with the interpretation of certain section 
172(c) requirements provided by EPA in the General Preamble to Title I, 
as EPA stated there that no other measures to provide for attainment 
would be needed by areas seeking redesignation to attainment since 
``attainment will have been reached.'' (57 FR at 13564; see also 
September 1992 Calcagni memorandum at page 6.) Upon attainment of the 
NAAQS, the focus of state planning efforts shifts to the maintenance of 
the NAAQS and the development of a maintenance plan under section 175A.
    Similar reasoning applies to the contingency measure requirements 
of section 172(c)(9). EPA has previously interpreted the contingency 
measure requirement of section 172(c)(9) as no longer being applicable 
once an area has attained the one-hour standard since those 
``contingency measures are directed at ensuring RFP and attainment by 
the applicable date.'' (57 FR at 13564; see also September 1992 
Calcagni memorandum at page 6.) As the section 172(c)(9) contingency 
measures are linked with the RFP requirements of section 182(b)(1), the 
requirement no longer applies once an area has attained the one-hour 
standard.
    This action is only a suspension of the requirements to submit the 
SIP revisions discussed above. If the area were to violate the one-hour 
ozone NAAQS, the basis for the determination that the area need not 
make the pertinent SIP revisions would no longer exist. The EPA would 
notify the state of that determination and would also provide 
notification to the public in the Federal Register. Such a 
determination would mean that the area would have to address the 
pertinent SIP requirements within a period of time, which EPA would 
establish taking into account the individual circumstances surrounding 
the particular SIP submissions at issue.
    However, EPA recently promulgated a new eight-hour ozone standard. 
The President's Directive of July 16, 1997 outlines how EPA will make 
the transition from the old one-hour standard to the new SIP 
requirements for the eight-hour standard. The Directive states that EPA 
will revoke the one-hour standard once an area has air monitoring data 
showing attainment of the one-hour standard. If EPA revokes the one-
hour standard for an area, the requirement for the area to submit RFP 
requirements and an attainment demonstration for the one-hour standard 
will be permanently ended.
    The state must continue to operate an appropriate air quality 
monitoring network, in accordance with 40 CFR part 58, to verify the 
attainment status of the area. The air quality data relied upon to 
determine that the area is attaining the ozone standard must be 
consistent with 40 CFR part 58 requirements and other relevant EPA 
guidance and recorded in EPA's Aerometric Information Retrieval System 
(AIRS).
    The determination that is being made with this Federal Register 
document that air quality data shows attainment of the one-hour 
standard is not equivalent to the redesignation of the area to 
attainment. Using monitoring data to show attainment of the ozone NAAQS 
is only one of the criteria set forth in 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 that section, including the requirement of a demonstration that the 
improvement in the area's air quality is due to permanent and 
enforceable reductions and the requirements that the area have a fully-
approved SIP meeting all of the applicable requirements under section 
110 and Part D and a fully-approved maintenance plan.
    Furthermore, the determination made in this notice does not shield 
an area from future EPA action. EPA can require emissions reductions 
from sources in the area where there is evidence, such as photochemical 
grid modeling, showing that emissions from sources in the area 
contribute significantly to nonattainment in, or interfere with 
maintenance by, other nonattainment areas. EPA has authority under 
section 110(a)(2) to require such emission reductions if necessary and 
appropriate to deal with transport situations. Also, EPA can require 
SIPs from this area if EPA or the state proposes, in future actions, 
that the area is in violation of the eight-hour standard.

II. Analysis of Air Quality Data

    On November 17, 1997, New York requested that EPA find that air 
monitoring data from New York State for the Poughkeepsie ozone 
nonattainment area shows that the area is attaining the one-hour ozone 
standard. New York State, also on November 17, 1997, submitted quality 
assured data (consistent with the requirements contained in 40 CFR part 
58 and recorded in AIRS) through the end of the 1997 ozone season and 
certified that these data met EPA's requirements. The EPA has reviewed 
the ambient air monitoring data for ozone from 1995 through 1997 for 
the Poughkeepsie ozone nonattainment area, which includes Dutchess, 
Putnam and northern Orange Counties in New York. The data were taken 
from the

[[Page 66824]]

EPA-approved New York State air quality monitoring network. It should 
be noted that New York expanded air monitoring in the Poughkeepsie area 
from one to three monitors during the 1990s. The monitors in these 
locations were sited to measure ozone concentrations typical of 
concentrations across the area. New York did this to better define the 
extent of ozone nonattainment in the area. Expanding the network 
increased the opportunity for finding violations of the ozone standard 
in the Poughkeepsie area. EPA believes that these data are 
representative of the Poughkeepsie ozone nonattainment area. This is 
especially true since ozone is not emitted directly from sources, but 
is formed from pollutants that react in sunshine over a period of time. 
The ozone air quality data for the Poughkeepsie ozone nonattainment 
area, summarized in Table I, shows that the area has met the one-hour 
NAAQS.

       Table I.--Exceedances of the One-hour Ozone Standard for Monitoring Sites in the Poughkeepsie Ozone      
                                               Nonattainment Area                                               
                                                 [From EPA AIRS]                                                
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                                     Number of exceedances                                                      
                                    (in parentheses)  Number   Total number   Average number                    
                                    of expected exceedances     of expected     of expected    Attainment status
               Site                         in bold             exceedances     exceedances         1995-7      
                                  ---------------------------     1995-7          1995-7                        
                                     1995     1996     1997                                                     
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Millbrook........................      (0)      (0)      (0)             0.0             0.0  Attain.           
                                       0.0      0.0      0.0  ..............  ..............  ..................
Mt. Ninham.......................      (2)      (1)      (0)             3.1             1.0  Attain.           
                                       2.0      1.1      0.0  ..............  ..............  ..................
Valley Central...................      (0)      (1)      (0)             1.0             0.3  Attain.           
                                       0.0      1.0      0.0  ..............  ..............  ..................
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Note: Expected exceedances are calculated from the actual number of exceedances ( ), adjusted for missing data  
  as required by Appendix H. The 0.12 ppm one-hour average ozone standard is attained when the three year       
  average of expected exceedances is 1.0 or less. The expected and average number of exceedances are rounded to 
  the nearest tenth. [See CFR Part 51, Appendix H.]                                                             

As noted in Table I, attainment of the one-hour ozone standard is 
achieved when an area's monitoring sites have 1.0 or less exceedances 
per year, averaged over a three year period from 1995 through 1997. 
Since all of the monitors in the Poughkeepsie ozone nonattainment area 
average 1.0 or less exceedances per year, the Poughkeepsie area is 
attaining the one-hour NAAQS for ozone. Attaining the ozone standard 
would relieve New York from submitting a reasonable further progress 
plan whose purpose was to bring the area into attainment. Likewise, New 
York would not have to submit an attainment demonstration since the 
area has attained the one-hour ozone standard.

III. Final Action

    EPA determines that the Poughkeepsie ozone nonattainment area has 
attained the one-hour ozone standard based on three years of quality-
assured monitoring data at all three sites in the area. As a 
consequence of EPA's determination that the Poughkeepsie area has 
attained the one-hour ozone standard, the requirements of section 
182(b)(1) concerning the submission of the 15 percent plan and ozone 
attainment demonstration and the requirements of section 172(c)(9) 
concerning contingency measures shall not be applicable to the area. 
This is effective as long as the area continues to attain the one-hour 
ozone standard, or until EPA revokes the one-hour standard.
    EPA emphasizes that as long as the one-hour standard applies to the 
Poughkeepsie area, these determinations are contingent upon the 
continued monitoring and continued attainment and maintenance of the 
one-hour ozone NAAQS in this affected area. If while the one-hour 
standard is still in effect, a violation of the one-hour ozone NAAQS is 
monitored in the Poughkeepsie area (consistent with the requirements 
contained in 40 CFR part 58 and recorded in AIRS), EPA will provide 
notice to the public in the Federal Register. Then EPA would reinstate 
the requirements of section 182(b)(1) and section 172(c)(9) for the 
Poughkeepsie area since the basis for the determination that they are 
not needed would not exist.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial action and anticipates no 
adverse comments. EPA is strictly acting on the basis of real data, 
without modification or interpretation that impels EPA to make the 
determination in this document. However, in a separate document in this 
Federal Register publication, the EPA is proposing to approve this 
action in case adverse or critical comments be filed. This action will 
be effective February 5, 1998 unless, by January 21, 1998, adverse or 
critical comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time. If no such comments are received, the public is 
advised that this action will be effective February 5, 1998.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revisions to any SIP. Each request for revision of the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

IV. Administrative Requirements

Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify

[[Page 66825]]

that the rule will not have a significant impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and government entities with 
jurisdiction over populations of less than 50,000.
    This action removes a requirement that the Clean Air Act required 
the State to address. Therefore, because this action does not impose 
any new requirements, I certify that it does not have an impact on any 
small entities.

Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that this action does not include a federal 
mandate that may result in estimated annual costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector. This federal action imposes no new requirements, 
and accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. section 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. section 804(2).

Petitions for Judicial Review

    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 February 20, 1998. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, Intergovernmental relations, 
Reporting and recordkeeping requirements.

    Dated: December 4, 1997.
William J. Muszynski,
Acting Regional Administrator, Region 2.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart HH--New York

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


52.1683  Control strategy: Ozone.

* * * * *
    (f) Attainment Determination--EPA has determined that, as of 
February 5, 1998, the Poughkeepsie ozone nonattainment area (consisting 
of Dutchess and Putnam Counties and northern Orange County) has air 
monitoring data that attains the one-hour ozone standard and that the 
requirements of section 182(b)(1) (reasonable further progress and 
attainment demonstration) and related requirements of section 172(c)(9) 
(contingency measures) of the Clean Air Act do not apply to the area.

[FR Doc. 97-33080 Filed 12-19-97; 8:45 am]
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