```

[Federal Register Volume 77, Number 16 (Wednesday, January 25, 2012)]
[Proposed Rules]
[Pages 3720-3725]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1518]

[[Page 3720]]

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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.

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SUMMARY: EPA is proposing 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. 
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-NJ-CT 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, quality-assured 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 
eight-hour ozone NAAQS. EPA is proposing to determine 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. 
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

[[Page 3721]]

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.
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    \1\ CFR refers to the Code of Federal Regulations, in this case 
Title 40 part 51.
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    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 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: 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 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 FR38856), 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 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 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 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 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 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).
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    \2\ 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 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-NJ-CT 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 one-hour ozone NAAQS for 
an area, EPA is no longer obligated to determine whether an area has 
attained the one-hour 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

[[Page 3722]]

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-NJ-CT 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 anti-backsliding 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.
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    \3\ The 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).
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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 quality-assured 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\
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    \4\ EPA 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).
    \5\ A 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.
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    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

[[Page 3723]]

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 three-year 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 one-hour 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 eight-hour 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
----------------------------------------------------------------------------------------------------------------
                          Monitor name,
        State                 county           AQS ID       2005-2007     2006-2008     2007-2009     2008-2010
----------------------------------------------------------------------------------------------------------------
CT...................  Greenwich,              090010017           1.3           1.3           0.3           0.3
                        Fairfield Co.
CT...................  Danbury, Fairfield      090011123           3.0           1.3           1.0           0.0
                        Co.
CT...................  Stratford,              090013007           1.4           1.4           0.3           0.3
                        Fairfield Co.
CT...................  Westport, Fairfield     090019003           1.3           1.3           0.3           0.3
                        Co.

[[Page 3724]]

 
NJ...................  Teaneck, Bergen Co.     340030005             *             *             *             *
NJ...................  Leonia, Bergen Co..     340030006             *             *             *           0.0
NJ...................  Newark-Fire House,      340130003             *             *             *             *
                        Essex Co.
NJ...................  Bayonne, Hudson Co.     340170006           0.3           0.0           0.0           0.0
NJ...................  Flemington,             340190001           0.3           0.3           0.3           0.0
                        Hunterdon Co.
NJ...................  Rutgers University,     340230011           1.3           0.7           0.0           0.0
                        Middlesex Co.
NJ...................  Monmouth                340250005           0.3           0.0           0.0           0.0
                        University,
                        Monmouth Co.
NJ...................  Chester, Morris Co.     340273001           0.0           0.0           0.0           0.0
NJ...................  Colliers Mills,         340290006           0.7           0.0           0.0           0.0
                        Ocean Co.
NJ...................  Ramapo, Passaic Co.     340315001           0.0           0.0           0.0           0.0
NY...................  Botanical Gardens/      360050083             *             *             *             *
                        Harding Lab, Bronx
                        Co.
NY...................  IS 52, Bronx Co....     360050110           0.0           0.0           0.0           0.0
NY...................  Botanical Gardens/      360050133             *             *           0.0           0.0
                        Pfizer Lab, Bronx
                        Co.
NY...................  CCNY, New York Co..     360610135             *             *           0.0           0.0
NY...................  Queens College II,      360810124           0.0           0.0           0.0           0.0
                        Queens Co.
NY...................  Susan Wagner,           360850067           0.3           0.0           0.0           0.3
                        Richmond Co.
NY...................  Rockland County,        360870005             *             *             *             *
                        Rockland Co.
NY...................  Babylon, Suffolk Co     361030002           1.4           1.0           0.0           0.4
NY...................  Riverhead, Suffolk      361030004           1.4           1.7           0.7           0.7
                        Co.
NY...................  Holtsville, Suffolk     361030009             *           1.2           0.0           0.0
                        Co.
NY...................  White Plains,           361192004           1.7           1.8           1.4           0.4
                        Westchester Co.
----------------------------------------------------------------------------------------------------------------
Highest Maximum Expected Exceedance Rate for each 3-year           3.0           1.8           1.4           0.7
 Period.
----------------------------------------------------------------------------------------------------------------
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 eight-hour ozone NAAQS is 0.08 ppm. A monitor 
with a design value of 0.084 ppm or less is meeting the 1997 eight-hour 
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.

[[Page 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 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 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 one-hour 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 eight-hour 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 eight-hour 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 eight-hour 
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 eight-hour 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
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