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N O R TH W ES T R O C K Y M O U N TA I N WA S H I N G T O N , D . C . I N T ER N A TI O N A L

W A S H I N G T O N , D C O F F I C E 1 6 2 5 M A S S A C H U S E T T S A V E N U E , S U I T E 7 0 2 W A S H I N G T O N , D C 2 0 0 3 6

T : 2 0 2 . 6 6 7 . 4 5 0 0 F : 2 0 2 . 6 6 7 . 2 3 5 6 D C O F F I C E @ E A R T H J U S T I C E . O R G W W W . E A R T H J U S T I C E . O R G

June 16, 2014

Richard Ruvo

Chief, Air Programs Branch

Environmental Protection Agency

Region 2 Office

290 Broadway, 25th Floor

New York, NY 10007

VIA EMAIL AND REGULATIONS.GOV

Re: Docket ID No. EPA-R02-OAR-2014-0251 (Rescission of Determination of Attainment and 

Call for Attainment Plans for New York, New Jersey and Connecticut for the 1997 8-

Hour Ozone National Ambient Air Quality Standard for the NY-NJ-CT 1997 Ozone 

Nonattainment Area

Dear Mr. Ruvo:

Earthjustice and Sierra Club, on behalf of its more than 65,000 members in Connecticut, 

New Jersey and New York, submit the following comments on EPA’s proposal to rescind its 

“clean data determination” for the NY-NJ-CT 1997 ozone nonattainment area (“New York City 

area”), published in the Federal Register on May 15, 2014, at 79 Fed. Reg. 27,830.

First, we strongly support EPA’s proposal to rescind the clean data determination and to 

reinstate the planning requirements of the Clean Air Act that will bring the New York City area 

into attainment with the 1997 ozone standard. The 2012 design values make clear that the New 

York City area has a 2012 design value of 87 ppb, which plainly exceeds the 1997 8-hour ozone 

standard of effectively 84 ppb. The 2013 design values confirm this, showing a design value of 

89 ppb. 

Notably, the only years in which the New York City area attained the 1997 

NAAQS―with design values of 84 ppb, equal to the NAAQS, see EPA, Design Values 2012: 

Ozone Detailed Information tbl.3b, epa.gov/airtrends/pdfs/Ozone_DesignValues_20102012_

FINAL_02_07_14.xlsx (July 1, 2013)―include air quality data for 2009, which had unusual

summer weather that limited ozone formation in the Northeast. See EPA, Response to Comments 

on Implementation of the 2008 National Air Quality Standards for Ozone: Nonattainment Area 

Classifications Approach, Attainment Deadlines, and Revocation of the 1997 Ozone Standards for 

Transportation Conformity Purposes 18 (EPA-HQ-OAR-2010-0885-0065, Apr. 2012). Removing this

outlier year from the design value calculations beginning in 2012 reveals that the New York 
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City area’s attainment of the 1997 ozone standard was temporary, and was most likely due to 

the happenstance of unusual weather and not due to permanent and enforceable reductions in 

ozone-forming pollution. Under these circumstances, a “clean data” waiver of requirements for 

the New York City area was and is antithetical to the Clean Air Act, which bars relaxation of 

control requirements for nonattainment areas until such areas show that they are meeting the 

standard “due to permanent and enforceable reductions in emissions,” and satisfy all other 

requirements for redesignation to attainment. 42 U.S.C. §§7407(d)(3)(E), 7505a(c). As the D.C. 

Circuit has held, “the Act creates a one-way ratchet, ‘plac[ing] states onto a one-way street 

whose only outlet is attainment’ of the NAAQS.” NRDC v. EPA, 643 F.3d 311, 322 (D.C. Cir. 

2011) (quoting S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 900 (D.C. Cir. 2006)). EPA 

must put the New York City area back onto that one-way street.

Second, we urge EPA to require New York, New Jersey, and Connecticut to move more

swiftly to clean up their air. Without explanation, EPA proposes to give the states

approximately 19 months from the date it publishes notice of its final action in the Federal 

Register to submit plans to meet the requirements that were suspended by the clean data 

determination and to respond to the SIP call: 30 days for the action to take effect, then the 

statutory maximum of 18 months to respond to the SIP call. 79 Fed. Reg. at 27,833. EPA has no 

authority to allow the states to delay submission of the plans affected by the clean data 

determination. EPA’s rules provide that a clean data determination only suspends the relevant 

planning requirements “until such time as ... EPA determines that the area has violated the 8-

hour ozone NAAQS.” 40 C.F.R. §51.918 (emphasis added). There is no provision in the rule for 

further suspension of the planning requirements until some later date to be specified ad hoc by 

EPA. As any planning requirements that were suspended by the clean data determination are 

already long overdue under the Act and EPA rules, and as EPA’s only basis for suspending 

those requirements is gone, the agency has no authority to further delay compliance with those 

requirements.

For the same reasons, EPA cannot use the artifice of a SIP call to facilitate further delay.

As noted above, the clean data rule allows for suspension of planning requirements only for so 

long as the area remains in attainment. There is no provision in that rule for EPA to promote 

further delay by engaging in a SIP call process after the area has fallen back into violation of the 

standard, and such an approach unlawfully flouts the Act’s express deadlines for 

nonattainment area plans and timely attainment, as set out in Subpart 2 of Part D. Temporary 

attainment of the standard does not allow EPA to abandon those deadlines and related 

requirements. States that choose to suspend planning requirements based on temporary 

attainment do so at their own risk: The Act does not allow them to evade Subpart 2’s deadlines 

if they fall back into nonattainment. EPA itself has taken the position that Subpart 2 deadlines 
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are not delayed merely because a state’s expectations of attainment are not sustained, and that 

such states risk being subjected to sanctions and FIPs if they put off planning that proves to be 

necessary. See 57 Fed. Reg. 13,498, 13,506 (Apr. 16, 1992) (“areas that wait until the end of their 

attainment period before requesting to bump up after already missing implementation 

requirements...are likely to have insufficient time for implementing the more stringent 

requirements of the next higher classification,” and will therefore risk “sanctions and/or FIP 

implementation that could result from failure to meet SIP submittal or implementation 

requirements.”).

Even if EPA could lawfully give the states additional time to submit these overdue plans

through a SIP call, EPA provides no reason for delaying the effective date of the SIP call by 30 

days. Indeed, there is no plausible reason. Instead, there is good cause for EPA to make the rule

effective immediately upon promulgation. See 5 U.S.C. §553(d)(3). For one, EPA has explained 

that the purpose of the 30-day period is “to give affected parties a reasonable time to adjust 

their behavior and prepare before the final rule takes effect.” E.g., 75 Fed. Reg. 62,470, 62,471 

(Oct. 12, 2010) (clean data determination for 1997 ozone NAAQS for Knoxville, TN); 73 Fed. 

Reg. 15,672, 15,672-73 (Mar. 25, 2008) (clean data determination for 1997 ozone NAAQS for 

various areas in New York). Here, EPA’s proposed rule would simply require the affected states 

to make plans. There is no reason that they need 30 days to “adjust their behavior and prepare” 

to make plans that EPA proposes will be due a year and a half later.1

Nor does EPA provide a reasoned basis for allowing a full 18 months for submission of 

the requisite plans and for responding to the SIP call. The 18-month time frame is particularly 

irrational given that none of the three affected states will be working off a blank slate. 79 Fed. 

Reg. at 27,831-32 (describing some past ozone SIP developments that EPA now proposes to 

reinstate and to make object of SIP call). Given the serious health threats presented by ozone 

and that the Act requires attainment “as expeditiously as practicable,” 42 U.S.C. §7511(a)(1), and 

given that this area is already past the outside attainment deadlines for both moderate and 

serious areas under the 1997 standard, EPA must require submission of the required plans at 

the earliest possible date. In this regard, we note that EPA’s SIP call for PSD program revisions 

to address greenhouse gases required almost all of the affected states to submit the required SIP 

 

1 Notably, EPA has a record of making clean data determinations and even a nonattainment 

designation effective either immediately or in well under 30 days. E.g., 77 Fed. Reg. 76,867, 

76,867 (Dec. 31, 2012) (making clean data determination for 2006 fine particulate matter NAAQS 

for New York-N. New Jersey-Long Island, NY-NJ-CT immediately effective); 73 Fed. Reg. at 

15,672-73 (making clean data determination for 1997 ozone NAAQS for various areas in New 

York immediately effective); 73 Fed. Reg. 17,897, 17,898 (Apr. 2, 2008) (setting effective date of 

designation of Denver area as nonattainment for 1997 ozone NAAQS to be April 15, 2008).
4

revisions in less than four months. 75 Fed. Reg. 77,698, 77,705 (Dec. 13, 2010). In light of the 

urgency of protecting public health from ozone, and given that the states have already done 

much of the ground work for the plans here, there is no reason to allow more time for submittal 

of corrective SIPs here.

Third, EPA must bump the New York City area up to severe for the 1997 ozone 

NAAQS.2 As discussed above, Subpart 2 puts nonattainment areas on a one-way street to 

attainment. In particular, Subpart 2 calls on EPA to classify areas based on the severity of 

nonattainment and an area’s failure to actually attain. Here, EPA must reclassify the New York 

City area in accordance with Subpart 2 to put the area back on the street to attainment.

Failure to reclassify the New York City area flouts Subpart 2, and creates an inconsistent 

result that Congress could not have intended. In passing Subpart 2, Congress meant to limit 

EPA discretion. S. Coast, 472 F.3d 887-88, 894. But EPA is paying Subpart 2 essentially no heed 

here. Subpart 2 makes clear that if a nonattainment area fails to bring its ozone pollution levels 

into compliance with the NAAQS by the relevant attainment deadline, the area must be 

bumped up to a stricter nonattainment classification. 42 U.S.C. §7511(b)(2). Similarly, Subpart 2

makes clear that if an area designated attainment falls out of attainment, it goes directly onto 

Subpart 2’s path, rendering it subject to bump-ups. Id. §7511(b)(1). Yet, by not bumping up the 

New York City area, EPA evidently takes the position that it has discretion to allow a 

nonattainment area that temporarily attains, without ever being redesignated, to escape the 

one-way path that Subpart 2 sets up. That position cannot be reconciled with the Clean Air Act.

Fourth, the two options EPA proposes to give the states for responding to the SIP call

also must be made stronger. For the first option—simply updating SIPs to show how the New 

York City area will re-attain the 1997 NAAQS—EPA calls for the plans to achieve attainment 

“as expeditiously as practicable.” 79 Fed. Reg. at 27,831. Given that the attainment deadlines 

have passed, EPA must require the states to show attainment at the earliest possible date using 

all available controls. See Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990). Further, since the area 

is legally obligated to come into attainment with the stricter 2008 NAAQS no later than 2015, 

EPA can in no event allow the states more time than that to come into attainment with the less 

protective 1997 NAAQS. 

For the second option—that states respond by providing plans for attaining the 2008 

NAAQS—EPA gives two suboptions, both of which are flawed. With respect to the voluntary 

 

2 The area, designated nonattainment for the 1997 NAAQS in 2004, has already missed the 

deadline for serious areas to attain. See 40 C.F.R. §51.903(a) tbl.1 (giving serious areas outside 

deadline of 9 years from date of designation).
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reclassification option, without any legal analysis, EPA announces that it will only grant a 

voluntary bump-up if all three states request it. 79 Fed. Reg. at 27,833 n.4. The Clean Air Act 

does not require that all states request a voluntary bump up, and EPA lacks authority to invent 

such a requirement. Rather, §181(b)(3) of the Act makes clear that if “any State” requests a 

bump-up of “a nonattainment area in that State,” EPA “shall grant the request.” 42 U.S.C. 

§7511(b)(3). The New York City area is a nonattainment area that is in each of the three states:

the New York State portions of the New York City area are in New York State, with the same 

holding for New Jersey and Connecticut. Thus, the Act’s voluntary bump-up provision 

demands that EPA grant any of the three states’ requests to bump-up the New York City area.

Even if a voluntary bump up request by New York State could not trigger bump up of 

the entire multi-state nonattainment area, the plain language of §181(b)(3) would at the very 

least require EPA to bump-up the portion of the New York City area within that state, for that 

portion is “a nonattainment area in that State.” Id. Indeed, almost exactly two years ago, New 

York State requested a bump-up of the New York City area for the 2008 NAAQS. Letter from 

Joe Martens, Comm’r, N.Y. State Dept. of Envtl. Conserv., to Lisa P. Jackson, Admin’r, U.S. EPA, 

at 2 (June 20, 2012) [hereinafter New York Bump-Up Request]; see also EPA-HQ-OA-2008-0265-

0053 at 2 (action initiation list for July 2012) (initiating action to respond to New York’s 

reclassification request). EPA must immediately finalize action to respond to that request.

EPA’s unexplained position that all three states must request a bump-up for the entire 

New York City area is also inconsistent with the other options EPA proposes. EPA only requires 

that the three states move in lockstep for the voluntary bump-up option; for the other two 

options, EPA does not express any position on whether all three states must follow the same 

course. 

With respect to the voluntary preparation of an attainment SIP option, the option not 

only flouts the Act’s mandatory requirements for any SIP submission that EPA suspended, but

is of questionable efficacy. Given EPA’s proposed 18-month deadline for responding to the SIP 

call, assuming EPA finalizes the rescission in July or August (as we trust it will), the affected 

states will not have to submit the voluntary attainment SIP until the end of 2015 or early 2016. 

By that time, the New York City area either will or will not have attained the 2008 NAAQS, for 

its attainment deadline is in 2015. Plans submitted at the end of 2015 or in 2016 detailing how 

the states will attain by 2015 will serve little purpose. 

Besides, it is highly likely that the area will not attain by its deadline. New York has 

already forcefully argued to EPA that the New York City area will not be able to attain by 2015, 

and requested that the area be bumped up. New York Bump-Up Request 2, 4-6. EPA itself 

predicted in 2012 that the New York City area would not attain the 2008 NAAQS by 2015 even 

with the Cross State Air Pollution Rule being in effect (which it has not been). See EPA-HQ-
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OAR-2010-0885-0011 “Sites 08‐10 DV > 75 ppb” at 11 (PDF p.78) (projecting 2015 design value 

for New York City area of 79.5 ppb).

The voluntary attainment plan option will likely accomplish little more than 

perpetuating delay of needed air quality improvements for the more than 20 million people in 

the New York City area. EPA’s poor record of adhering to the Act’s procedures for determining 

whether an area attained and responding to a failure to attain, see 42 U.S.C. §7511(b)(2), suggests 

that by the time the New York City area is bumped up, the 2018 deadline for a moderate area to 

attain the 2008 NAAQS will already be looming and the three states will have little time to 

effectuate SIPs that will accomplish the necessary emissions reductions in time. Cf. 57 Fed. Reg. 

at 13,506 (“areas that wait until the end of their attainment period before requesting to bump up 

after already missing implementation requirements...are likely to have insufficient time for 

implementing the more stringent requirements of the next higher classification,” and will 

therefore risk “sanctions and/or FIP implementation that could result from failure to meet SIP 

submittal or implementation requirements.”). The area will likely need another bump-up. To 

forestall additional delay, EPA instead must grant New York State’s voluntary bump-up 

request forthwith. 

Sincerely,

/s/ Seth L. Johnson 

Seth L. Johnson

Attorney