Response to Comments

Proposed Rule: 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 Standards for the NY-NJ-CT 

1997 Ozone Nonattainment Area

April 8, 2016
1

Table of Contents 

1.0 Introduction...................................................................................................................2

2.0 Comments Received............................................................................................................6

Supported proposed action..................................................................................6

Opposed to proposed action................................................................................6

Reclassification of area to the next highest classification ..................................9

Expedite attainment ..........................................................................................10

Applicability to 2008 ozone NAAQS...............................................................11

Transport related comments..............................................................................12

Attainment Planning Requirements..................................................................22

Table 1. Explanation of Acronyms and Frequently Used Abbreviations

Acronym Long Name

CAA Clean Air Act

CDD Clean Data Determination

CFR Code of Federal Regulations

CSAPR Cross State Air Pollution Rule

DV Design Value

EGU Electric Generating Unit

EIIP Emission Inventory Improvement Program

EPA United States Environmental Protection Agency

FR Federal Register

HEDD High Energy Demand Days

I/M Inspection and maintenance

MVEB Motor Vehicle Emissions Budget

NAAQS National Ambient Air Quality Standards

NOx Nitrogen Oxides

PPB Parts per Billion

PPM Parts per Million

RACM Reasonably Available Control Measures

RACT Reasonably Available Control Technology

RFP Reasonable Further Progress

ROP Rate of Progress

SIP State Implementation Plan
2

1.0 Introduction 

On April 30, 2004 (69 FR 23858), the EPA finalized its attainment/nonattainment 

designations for areas across the country with respect to the 1997 8-hour ozone standard of 0.08 

parts per million (ppm). The New York-N. New Jersey-Long Island, NY-NJ-CT 1997 8-hour 

ozone nonattainment area (hereafter, the NY-NJ-CT area or the NY-NJ-CT nonattainment area)

was designated a moderate ozone nonattainment area and is composed of: Bergen, Essex, 

Hudson, Hunterdon, Middlesex, Monmouth, Morris, Passaic, Somerset, Sussex, Union, and 

Warren Counties in New Jersey; Bronx, Kings, Nassau, New York, Queens, Richmond, 

Rockland, Suffolk, and Westchester Counties in New York; and Fairfield, Middlesex, and New 

Haven Counties in Connecticut. See 40 CFR 81.307, 81.331, and 81.333. Also, on April 30, 2004 

(See 69 FR 23951), the EPA promulgated the Phase 1, 8-hour ozone implementation rule which 

provided how areas designated nonattainment for the 1997 8-hour ozone standard would be 

classified. These designations triggered the Clean Air Act (CAA or Act) requirements under 

section 182(b) for moderate nonattainment areas, including a requirement to submit an 

attainment demonstration. The EPA's Phase 2 ozone implementation rule for the 1997 8-hour 

ozone standard, published on November 29, 2005 (See 70 FR 71612) (Phase 2 Rule), specifies 

that states must submit attainment demonstrations for their nonattainment areas to the EPA by no 

later than three years from the effective date of designation, that is, by June 15, 2007 (See 40 

CFR 51.908(a)). All three states comprising portions of the NY-NJ-CT area timely submitted the 

required attainment demonstration for the area.

On March 12, 2008, the EPA revised the ozone NAAQS to a level of 0.075 ppm to 

provide increased protection of public health and the environment. The 2008 ozone NAAQS 

retain the same general form and averaging time as the 0.08 ppm NAAQS set in 1997, but are set 

at a more protective level. State and Federal emission reduction efforts adopted to meet the 1997 

8-hour ozone standard will continue with implementation of the 2008 ozone NAAQS. In 

addition, on May 21, 2012 (See 77 FR 30088), effective July 20, 2012, the EPA designated as 

nonattainment any area that was violating the 2008 8-hour ozone NAAQS based on the three 

most recent years of air quality data. The NY-NJ-CT nonattainment area was designated as a 

marginal ozone nonattainment area for the 2008 ozone NAAQS.1 The boundaries for the 2008 

ozone nonattainment area are identical to the 1997 ozone nonattainment area. As a result of its 

“marginal” classification, the area is required to attain the 2008 ozone standard by July 20, 20152

 

1

See 40 CFR 81.307. 81.331, and 81.333.

2 The EPA originally established the attainment deadline to meet the 2008 ozone NAAQS to be 

December 31, 2015 (See 77 FR 30167, May 21, 2012), but pursuant to a challenge of the EPA’s

interpretation of the attainment deadlines, on December 23, 2014, the D.C. Circuit issued a 

decision rejecting, among other things, the Classifications Rule’s attainment deadlines for the 

2008 ozone nonattainment areas, finding that the EPA did not have statutory authority under the 

CAA to extend those deadlines to the end of the calendar year. NRDC v. EPA, 777 F.3d 456, 
3

but is not required to submit an attainment demonstration for the 2008 ozone standard.

Furthermore, on November 25, 2014,

3

the EPA again proposed to revise the ozone NAAQS. The 

EPA has finalized the 2015 ozone NAAQS standard in the Federal Register,

4

but has neither

proposed nor finalized designations or implementation regulations for this standard.

In the 2008 ozone NAAQS State Implementation Plan (SIP) Requirements: Final Rule,5

the EPA revoked the 1997 ozone NAAQS for all purposes and established anti-backsliding 

requirements for that NAAQS. The EPA retained a listing of the designated areas for the revoked 

1997 ozone NAAQS in 40 CFR Part 81, for the sole purpose of identifying anti-backsliding 

requirements that may apply to the areas. Accordingly, in an area designated nonattainment for 

the 2008 ozone NAAQS and nonattainment for the 1997 ozone NAAQS at the time of revocation 

of the 1997 ozone NAAQS, as is the case with multi-state NY-NJ-CT nonattainment area, the 

states will be obligated to implement the applicable requirements set forth in 40 CFR 51.1100(o). 

As such, the complete list of applicable requirements in 40 CFR 51.1100(o) is: (1) RACT; (2) 

Vehicle I/M programs; (3) Major source applicability cut-offs for purposes of RACT; (4) ROP 

and/or RFP reductions; (5) the Clean fuels fleet program under CAA section 183(c)(4) of the

CAA; (6) Clean fuels for boilers under section 182(e)(3) of the CAA; (7) Transportation control 

measures during heavy traffic hours as provided under section 182(e)(4) of the CAA; (8)

Enhanced (ambient) monitoring under section 182(c)(1) of the CAA; (9) Transportation controls 

under section 182(c)(5) of the CAA; (10) Vehicle miles traveled provisions under section

182(d)(1)(A) of the CAA; (11) NOx requirements under section 182(f) of the CAA; (12) 

Attainment demonstrations; (13) Nonattainment contingency measures; (14) Nonattainment NSR

major source thresholds and offset ratios;6(15) CAA section 185 requirements for Severe and 

Extreme areas for failure to attain; (16) RACM; and (17) Contingency measures for SIPs

invoking section 182(e)(5) of the CAA.

On June 18, 2012 (77 FR 36163), the EPA issued a clean data determination (CDD) for 

 

464– 69 (D.C. Cir. 2014). Accordingly, as part of the final 2008 ozone NAAQS SIP

Requirements Rule (See 80 FR 12264, March 6, 2015), the EPA modified the maximum 

attainment dates for all nonattainment areas for the 2008 ozone NAAQS, consistent with the 

court’s decision. As relevant here, the SIP Requirements Rule established a maximum deadline 

for Marginal nonattainment areas of 3 years from the effective date of designation, or July 20,

2015, to attain the 2008 ozone NAAQS. See 80 FR at 12268; 40 CFR 51.1103.

3

See 79 FR 75234, (December 17, 2014), “National Ambient Air Quality Standards for Ozone: 

Proposed Rule.”

4

See 80 FR 65292, (October 26, 2015), “National Ambient Air Quality Standards for Ozone: 

Final Rule.” Additionally, in this rule, the EPA changed the beginning of ozone monitoring 

seasons.

5

See 80 FR 12296, (March 6, 2015).

6

It should be noted that replacement of nonattainment NSR SIP provisions with PSD upon

successful redesignation to attainment does not relieve sources of their obligations under 

previously established permit conditions.
4

the NY-NJ-CT area with respect to the 1997 8-hour ozone standard. On May 15, 2014 (79 FR 

27830), the EPA issued a notice of proposed rulemaking (NPR) proposing to rescind this CDD

and proposing a SIP Call for submittal of a new ozone attainment demonstration for the NY-NJCT area for the 1997 ozone NAAQS. The EPA also proposed that states could opt to respond to 

the SIP Call for a new 1997 ozone NAAQS attainment demonstration by requesting a voluntary 

reclassification, or “bump-up,” to Moderate for the 2008 ozone NAAQS and in turn to submit an 

attainment demonstration for that more stringent standard. We requested public comments on 

this proposal and the comment period ended June 14, 2014. The EPA received a number of 

comments that can be accessed through the EPA’s docket website at www.regulations.gov. The 

official docket for the May 15, 2014 proposal is identified by Docket ID number EPA-R02-

OAR-2014-0251. The comments we received in response to the May 15, 2014, proposal (79 FR 

27830) to rescind the CDD for the NY-NJ-CT 1997 8-hour ozone nonattainment area and the 

accompanying SIP Call for attainment plans are summarized in detail with accompanying 

responses in this document.

It is important to note that before taking final action on the rescission of the CDD for the 

NY-NJ-CT area, the EPA issued a proposal on August 27, 2015 (80 FR 51992) to determine, 

among other things, that the NY-NJ-CT area failed to attain the 2008 ozone NAAQS by the 

applicable attainment deadline of July 20, 2015. The EPA also determined that the area was not 

eligible for a 1-year attainment date extension because the 4th highest daily maximum 8-hour 

average for at least one monitor in the area was greater than 0.075 ppm for 2014, the year 

preceding the attainment year. We indicated in the August 27, 2015 proposal that if we finalized 

our action finding that the area had failed to attain and reclassified the area as Moderate for the 

2008 ozone NAAQS, New Jersey, New York, and Connecticut would be required to submit a 

Moderate area attainment demonstration for the 2008 ozone NAAQS by the SIP submission date 

established under that action. We noted that the states’ submissions of adequate SIPs 

demonstrating attainment of the 2008 ozone NAAQS would also serve to satisfy a final SIP Call 

under CAA section 110(k)(5) for new demonstrations showing how the area would attain the less 

stringent 1997 ozone NAAQS.

7 We also noted that either of our proposed 2008 ozone SIP 

revision due dates would meet the statutory timeframe permitted for a response to aSIP Call for 

the 1997 ozone NAAQS for the area identified in the May 2014 proposal. We solicited but did 

not receive comments on our August 27, 2015 proposal about our statement that submitting an 

attainment plan for the 2008 ozone standard could satisfy a final SIP Call on the 1997 ozone 

standard. The official docket for this August 2015 proposal is identified by Docket ID number 

EPA-HQ-OAR-2015-0468 and can be accessed through the www.regulations.gov website. 

In EPA’s final rule associated with our August 2015 proposed actions, with regard to the 

NY-NJ-CT area, we are finalizing a determination of failure the area to attain the 2008 ozone 

NAAQS by the attainment date, and the area is being reclassified to Moderate for the 2008 ozone 

NAAQS. We are therefore establishing that the respective states must submit a revision to their 

SIP addressing the CAA’s pollution control requirements for a Moderate ozone nonattainment 

area by January 1, 2017. We are also finalizing the rescission of the CDD for the 1997 ozone 

NAAQS and the accompanying SIP Call. The SIP Call finds that the SIPs for New Jersey, New 

 

7

See 80 FR 51992 (August 27, 2015).
5

York, and Connecticut are substantially inadequate for demonstrating attainment of the 1997 

standard and thus requires New Jersey, New York, and Connecticut to submit new plans.

In the agency’s August 27, 2015, proposal regarding determinations of attainment of the 

2008 Marginal ozone areas, the EPA discussed how its proposed actions affected the May 2014 

proposed options for responding to a SIP Call for the 1997 8-hour ozone NAAQS. Specifically, 

the proposed option to permit the relevant states to respond to the final SIP Call by requesting 

reclassification to Moderate for the 2008 ozone standard [see CAA section 181(b)(3)] would 

consequently require that the states submit SIPs demonstrating how they would attain the more 

stringent 2008 standard as expeditiously as practicable. We explicitly noted in the August 2015 

proposal that, if we were to finalize the determination that the NY-NJ-CT area failed to attain the 

2008 ozone NAAQS by the Marginal area attainment date, the area would be reclassified by 

operation of law, and thus effectively eliminating the need for the three states to voluntarily 

request reclassification. The area would then be subject to Moderate nonattainment area planning

requirements, and the subsequent submission of Moderate area attainment plans for the 2008 

ozone standard would necessarily satisfy a final SIP Call for the NY-NJ-CT area on the 1997 

ozone standard, because an approvable plan would demonstrate attainment of a more stringent 

NAAQS. We also noted that either of the proposed 2008 ozone attainment plan due dates would 

meet the statutory timeframe for the SIP revision due subsequent to a SIP Call for the 1997 

ozone NAAQS for the area.

Included in this document are summaries of the comments received on the May 15, 2014 

proposed rule and the EPA’s responses. Comments are arranged consistent with the relevant 

sections of the proposed rule.

Table 2. List of Commenters and Associated Docket Numbers 

Docket Number Commenter Name

EPA-R02-OAR-2014-0251-0002 Anonymous Commenter

EPA-R02-OAR-2014-0251-0003 Robert J. Klee, Commissioner, Connecticut Department of 

Energy and Environmental Protection, Hartford, 

Connecticut

EPA-R02-OAR-2014-0251-0004 Roger Caiazza, Director, Environmental Energy Alliance of 

New York, Albany, New York 

EPA-R02-OAR-2014-0251-0005 Jane Korzinski, Esq., Assistant Commissioner, New Jersey 

Department of Environmental Protection, Trenton, New 

Jersey

EPA-R02-OAR-2014-0251-0006 Andrea Schmitz, Vice President, Environment, Health and 

Safety, Consolidated Edison Company of New York 

Incorporated, New York, New York

EPA-R02-OAR-2014-0251-0007 Haley Stein, Senior Counsel, Environmental Law Division, 

New York City Law Department, New York, New York

EPA-R02-OAR-2014-0251-0008 Joseph J. Martens, Commissioner, New York State 

Department of Environmental Conservation, Albany, New 

York

EPA-R02-OAR-2014-0251-0009 Seth L. Johnson, Attorney, Earthjustice, Washington, D.C. 
6

2.0 Comments Received

Supported proposed action

Comment: Commenter (0004) supported the EPA’s proposal to rescind the CDD and to 

reinstate the CAA requirements that will bring the NY-NJ-CT area into attainment with the 1997 

ozone standard. The commenter pointed out that design values (DV) for the NY-NJ-CT area in 

2012 (0.087 parts per million- ppm) and 2013 (0.089 ppm) exceeded the 1997 8-hour ozone 

standard of 0.084 ppm.

Response: The EPA is finalizing the rescission of the CDD and issuing a SIP Call under 

CAA section 110(k)(5).

Comment: Commenter (0009) urged the EPA to require New York, New Jersey and 

Connecticut to move swiftly to clean up their air. The commenter argued that the EPA has no 

authority to allow the states to delay submission of the plans affected by the CDD and 19 months 

is too long. The commenter further argued that the EPA provided no reason for delaying the 

effective date of the SIP Call by 30 days. The commenter contended that there is no reason to 

give the states 30 days to “adjust their behavior and prepare” to make plans that the EPA

proposes will be due a year and half later. The commenter also contended that there isn’t a 

reasoned basis for allowing a full 18 months for submission of the requisite plans and for the 

corresponding SIP Call. An 18-month time frame is irrational because none of the 3 affected 

states will be working off a blank slate. 

Response: The EPA proposed the SIP Call pursuant to section 110(k)(5) of the CAA.

The provisions of 110(k)(5) state: “The Administrator shall notify the State of the inadequacies, 

and may establish reasonable deadlines (not to exceed 18 months after the date of such notice) 

for the submission of such plan revisions.” The EPA is finalizing the requirement that states 

must submit a Moderate area SIP demonstrating attainment of the 2008 ozone NAAQS for this 

area as expeditiously as practicable but no later than January 1, 2017, which is less than 9 

months from the date of signature of the final notice. It will be necessary for the states to develop 

revised attainment demonstrations and, if necessary, identify, develop, propose and adopt 

additional local control strategies that would achieve emissions reductions towards attainment of 

the more stringent 2008 standard as expeditiously as practicable but no later than July 20, 2018. 

In doing so, the EPA expects that the states’ attainment plan submittal should satisfy the SIP Call 

for the 1997 ozone NAAQS as long as it meets the attainment planning requirements for the 

2008 ozone NAAQS.

Opposed to proposed action

Comment: Commenter (0009) contended that the clean data rule allows for suspension 

of planning requirements only for so long as the area remains in attainment. The commenter 

stated, “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 
7

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.”

Response: We disagree with the commenter that a SIP Call under CAA section 110(k)(5) 

is inappropriate here. The EPA approved the New York and New Jersey 1997 8-hour ozone 

attainment demonstration plans on February 11, 2013 (78 FR 9596). The EPA proposed, but has 

not finalized, approval of the Connecticut ozone attainment plan for the NY-NJ-CT area. See 78 

FR 27161; May 9, 2013. As shown by the recent violations of the standard, the states’ 

implementation plans are substantially inadequate to attain the NAAQS, and as such, the 

Administrator is thus requiring the states to revise their plans to correct the inadequacies. The 

new SIP submissions must demonstrate attainment by a new expeditious attainment date and 

may need to include additional control measures that would require the states to go through the

formal administrative process required for a SIP revision, including public review and comment.

Comment: Commenter (0005) asked that the EPA forgo action on the proposed SIP Call 

and focus its and the states’ resources on implementation of the 2008 ozone standard and ozone 

transport.

Another commenter believed that the SIP Call is not necessary and is a burden on state 

resources. The EPA should focus its efforts on the implementation of the 0.075 ppm ozone 

standard and not the 0.085 ppm8 SIP Call.

Response: The EPA does not disagree with the commenter that focusing attention on 

addressing the more stringent 2008 standard would preserve resources and also simultaneously 

address the less stringent 1997 standard. That is why in the proposed rescission of the CDD and 

proposed SIP Call, the EPA provided states the opportunity to voluntarily reclassify for purposes 

of the 2008 ozone standard and to begin working on Moderate area plans to meet that more 

stringent standard as a way to also address attainment of the 1997 standard.

Today, we are finalizing our determination that the NY-NJ-CT nonattainment area failed 

to attain the 2008 standard by its Marginal attainment date of July 20, 2015, and we are 

reclassifying the area to Moderate by operation of law in accordance with CAA section 

181(b)(2)(A). By simultaneously rescinding the CDD for this area for the 1997 standard and 

issuing a final SIP Call, the EPA anticipates that New Jersey, Connecticut, and New York may 

respond to the SIP Call by submitting their Moderate area plans for the 2008 ozone NAAQS by

the due date of January 1, 2017.

The EPA is focusing on both ozone transport and on planning for attainment of the 2008 

ozone standard, as well as ensuring that the NY-NJ-CT area has an adequate attainment 

demonstration that will achieve expeditious attainment of the 1997 ozone NAAQS. As explained 

in more detail below, the EPA recognizes that ozone transport is a problem for the NY-NJ-CT 

area, and the Agency has taken significant steps towards addressing ozone transport and the 

statutory obligations of states upwind of the NY-NJ-CT area that contribute to the nonattainment 

problem in that area. However, such action does not preclude or absolve the Agency of also 

 

8 The 1997 ozone 8-hour NAAQS standard was 0.08 ppm. The commenter represented the 

standard as 0.085 ppm.
8

fulfilling the statutory and regulatory requirement to ensure that New York, New Jersey, and 

Connecticut have adequate state implementation plans that address how attainment of the 1997 

ozone NAAQS will be achieved.

Comment: Two commenters (0004 & 0005) claimed that the NY-NJ-CT area will attain 

the old 0.085 ppm standard by 2018 or sooner without the SIP Call. Additionally, the 

commenters maintained that the proposed SIP Call is not needed because ozone levels in the area 

will be well below the old 0.085 ppm ozone standard due to emission reductions requirements 

already in the pipeline, which will be implemented well ahead of any new control measures 

resulting from the SIP Call.

Response: The EPA has determined that the NY-NJ-CT area has violated the 8-hour 

ozone NAAQS based on complete, quality-assured air monitoring data. Pursuant to the 

provisions of 40 CFR 51.1118, the area no longer qualifies for SIP planning requirements to be 

suspended. Those previously suspended provisions require the states with jurisdiction over the 

nonattainment area to submit SIPs that will provide for attainment of the 1997 8-hour ozone 

NAAQS as “expeditiously as practicable.” Notwithstanding the revocation of the 1997 ozone 

standard, the requirement to have a SIP containing an adequate attainment demonstration 

remains an “applicable requirement” for the NY-NJ-CT area for anti-backsliding purposes.

Analysis indicating that the area will eventually attain in 2018 or even sooner does not abrogate 

the EPA’s obligation to issue a SIP Call under section 110(k)(5) for a new attainment plan that 

will demonstrate attainment of the 1997 standard as expeditiously as practicable.

In response to the second comment, it may be true that the area ozone levels may

eventually fall below 0.085 ppm due to controls already planned, but without a demonstration the 

EPA has no assurance this will occur. The CAA requires an attainment demonstration that shows

that the area will attain expeditiously, and the Act requires that states identify the specific, 

federally enforceable measures that will cause this to occur (CAA 110(a)(2)(A)). Those 

measures may include those already in the pipeline if they account for emissions reductions 

accounted for in the attainment demonstration for the area.

Comment: Commenters (0004) stated that the EPA should withdraw the SIP Call as it is 

premature to require additional state action given the EPA expects the area to attain the 0.075 

ppm standard by 2015. Another commenter (0008) believed the proposed SIP Call should be 

withdrawn because it is contrary to the President’s initiative for “common sense” regulation and 

to the EPA’s desire to streamline the SIP process.

Response: The EPA disagrees with these comments. Air quality data from 2012-2014

indicate that the area did not attain the 2008 ozone NAAQS by the attainment date of July 20, 

2015. Based on the certified 2012-2014 air quality data, the DV was 0.085 ppm and the 2014 4th

highest daily maximum 8-hour average was 0.081 ppm. The area did not meet the 0.075 pm 

standard. Moreover, even if EPA had data indicating that the area had attained the 2008 standard 

by the attainment deadline, we would still be statutorily obligated to issue the SIP Call to address 

the inadequacy of the 1997 attainment plan.

In response to the second comment, while the President’s initiative for “common sense” 

regulation and the EPA’s desire to streamline the SIP process are important goals, they cannot 

justify the EPA not performing its legal obligation to implement and enforce the CAA. Section 

110(k)(5) of the CAA requires that when the EPA finds the applicable implementation plan is 
9

substantially inadequate to attain or maintain a standard, the Administrator shall require the state 

to revise the SIP as necessary to correct such inadequacies. As codified in 40 CFR 51.1110(o), 

this obligation endures for anti-backsliding purposes even after a standard is revoked.

Comment: Commenter (0003 & 0005) believed that the SIP Call is not the appropriate 

mechanism to address what is a larger regional ozone transport problem. The commenters

maintained that a mere three-state SIP Call is the wrong solution to address ozone nonattainment

and stipulated that the EPA must address ozone transport on a regional level.

Response: Addressing emissions from within nonattainment areas and addressing 

regionally transported emissions are not mutually exclusive endeavors. The EPA has and will 

continue to take steps to address regional ozone transport. These efforts do not preclude the EPA

from also implementing the CAA’s requirements, even for revoked standards, with regard to 

local emissions from within the nonattainment area. As stated above, given that the NY-NJ-CT 

area is no longer attaining the 1997 standard, the EPA finds that the state implementation plans

designed to achieve expeditious attainment for the area are substantially inadequate and must be 

revised. 

Reclassification of area to the next highest classification

Comment: Commenter (0006) maintained that the EPA must bump the NY-NJ-CT area 

up to severe for the 1997 ozone NAAQS. The commenter stated the following: “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.” The commenter claimed that by not bumping up the NY-NJ-CT 

area, the EPA 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.

Response: On June 18, 2012 (77 FR 36163), the EPA determined that the NY-NJ-CT 

area attained the 1997 8-hour ozone standard by the applicable attainment date, June 15, 2010, 

based on complete, quality-assured and certified ozone monitoring data for 2007–2009. CAA 

section 181(b)(2) mandates that “any area that the Administrator finds has not attained the 

standard by that date shall be reclassified by operation of law” (emphasis added). In this case, the 

area attained the relevant standard by its attainment date and therefore the EPA interprets the 

CAA to require the agency to address the area’s subsequent nonattainment through revisions of 

the SIP, but not a bump up to the higher classification.

Furthermore, the regulations implementing the 1997 8-hour ozone NAAQS standard and 

the more recent 2008 ozone SIP Requirements Rule both clearly state that EPA does not make 

findings of failure to attain by the attainment date or reclassifications for revoked standards. See 
10

40 CFR 51.1105(d)(2)(ii).9 As the 1997 ozone standard is now revoked, under the terms of its 

regulations, the EPA cannot reclassify the NY-NJ-CT area for that standard.

Expedite attainment

Comment: Commenter (0003) asked how one state may determine the date for 

“expeditious” attainment when that state is conjoined with other state in a multi-state 

nonattainment area, i.e., NY-NJ-CT.

Response: According to CAA section 181(a)(1), as interpreted by EPA regulations at 40 

CFR 51.1103, Moderate ozone nonattainment areas for the 2008 ozone NAAQS are required to 

attain the standard ‘‘as expeditiously as practicable’’ but no later than 6 years after the 

designation effective date of July 20, 2012 (i.e., no later than July 20, 2018). However, because 

even multi-state nonattainment areas are treated as a single entity with one attainment date that 

applies to it, CAA section 182(j)(1)(A) directs states to “take all reasonable steps to coordinate, 

substantively and procedurally, the revisions and implementation of [SIPs] applicable to the 

nonattainment area concerned.” The EPA acknowledges that it will take some time for the three 

states to develop an ozone attainment plan and adopt new control measures, if needed. The EPA 

encourages the states to work together in a coordinated manner when working toward attainment.

Comment: Commenter (0009) advocated that the EPA must require the states to show 

attainment at the earliest possible date using all available controls. The commenter believed that 

simply updating SIPs to show how the NY-NJ-CT area will re-attain the 1997 NAAQS is not 

enough as the EPA calls for the plans to achieve attainment “as expeditiously as practicable.” 

Response: The EPA is finalizing the requirement that states must submit SIPs

addressing the Moderate area requirements for the 2008 ozone NAAQS for the NY-NJ-CT area 

as expeditiously as practicable but no later than January 1, 2017, which is less than 9 months 

from the date of signature of the final notice. It will be necessary for the states to develop revised 

attainment demonstrations and, if necessary, identify, develop, propose and adopt additional 

local control strategies that would achieve emissions reductions towards attainment of the 2008 

standard as expeditiously as practicable, but no later than July 20, 2018. Given that these control 

measures are required to be in place by early 2017, the EPA believes that the control strategy that 

expeditiously achieves attainment of the more stringent 2008 ozone NAAQS will simultaneously 

satisfy similar requirements for the 1997 ozone NAAQS.

 

9 As of April 6, 2015, the EPA is no longer obligated to reclassify an area to a higher 

classification for the 1997 ozone NAAQS based upon a determination that the area failed to 

attain the 1997 ozone NAAQS by the area's attainment date for the 1997 ozone NAAQS. And in 

any case, the NY-NJ-CT area attained the 1997 ozone NAAQS by the original applicable 

attainment date.
11

Applicability to 2008 ozone NAAQS

Comment: Commenter (0009) believed that the area is legally obligated to come into 

attainment with the stricter 2008 NAAQS no later than 2015, therefore the EPA cannot allow the 

states more time than that to come into attainment with the less protective 1997 NAAQS.

Response: Given that the EPA is finalizing its determination that the NY-NJ-CT 

nonattainment area failed to attain the 2008 standard by its Marginal attainment date of July 20, 

2015, and must be reclassified to Moderate by operation of law in accordance with CAA section 

181(b)(2)(A), the area’s new outside attainment date for the 2008 standard is July 20, 2018. The 

EPA is also finalizing the SIP Call that was proposed on May 15, 2014, to which the commenter 

is referring. However, at the time that the EPA proposed the SIP Call, it proposed to provide 

states with 18 months to submit a plan demonstrating attainment of the 1997 standard. Given the 

intervening events, and the fact that the states must now submit plans demonstrating attainment 

and the associated controls that will achieve attainment by January 1, 2017, the response time 

under the SIP Call for this final action is far more abbreviated than what was proposed. The 

states will have less than one year to assess what controls are needed to achieve the tighter 2008 

standards, and thus necessarily to also achieve the less stringent 1997 standard, and to implement

those controls. The EPA does not believe a more expeditious schedule than that would be 

feasible.

Comment: Commenter (0009) stated that with respect to the voluntary reclassification 

option (without any legal analysis), the EPA announced that it will only grant a voluntary bumpup if all three states request it. The commenter further supposed that the CAA doesn’t require 

that all states in a multi-state nonattainment area request a voluntary bump up. The commenter 

believed instead that section 181(b)(3) of the CAA makes it clear that if any state requests 

reclassification of its sole portion in a multi-state nonattainment area, the EPA shall grant the 

request for that state’s portion. The commenter pointed out that the NY-NJ-CT nonattainment 

area encompasses New York, New Jersey and Connecticut. The commenter concludes that even 

if a voluntary bump up request by one state could not trigger bump up of the entire multi-state 

nonattainment area.

The commenter believed that the EPA’s unexplained position that all three states must 

request a bump-up for the entire NY-NJ-CT area is inconsistent as it only requires that the three 

states move in lockstep for the voluntary bump-up option; for the other two options, the EPA

does not express any position on whether all three states must follow the same course.

Response: First, as the option for requesting voluntary reclassification is no longer 

available, this comment is no longer germane to the situation of the NY-NJ-CT area. However, 

as a general matter, the EPA disagrees with the commenter that the CAA does not require all 

states in which a multi-state nonattainment area resides to collectively agree to voluntarily 

reclassify the area. Where section 181(b)(3) states that “the Administrator shall grant the request 

of any State to reclassify a nonattainment area in that State . . . to a higher classification” 

(emphasis added), the EPA interprets the provision to mean that a multi-state nonattainment area 

is not in one single state, and therefore every state with jurisdiction over the area must make the 

request to reclassify. Contrary to the commenter’s suggestion, the EPA also does not believe that 

the “plain language” of section 181(b)(3) dictates that the EPA re-classify only the New York 

portion of the NY-NJ-CT area, and further the EPA does not think it is reasonable to do so. To 
12

reclassify only a portion of the NY-NJ-CT area would result in different deadlines for attainment 

for different portions of the area; such a result would be unworkable. The EPA also does not 

believe it is reasonable to interpret section 181(b)(3) to mean that a request from New York to 

voluntarily bump up the NY-NJ-CT area can override the prerogatives of Connecticut and New 

Jersey not to exercise the voluntary bump up option. Section 182(j) of the CAA indicates that 

states with jurisdiction over multi-state ozone nonattainment areas must work in cooperation 

with each other to meet joint air quality planning goals, and interpreting section 181(b)(3) in the 

manner proposed by commenter would be inconsistent with that directive.

Comment: One commenter assumed that if the EPA finalizes the rescission of the CDD 

in either July or August, that the proposed 18-month deadline for responding to the SIP Call, the 

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

2016. By that time, the NY-NJ-CT nonattainment area either will or will not have attained the 

2008 NAAQS, for its attainment deadline is in 2015. The commenter expressed their belief that 

plans submitted at the end of 2015 or in 2016 detailing how the states will attain by 2015 will 

serve little purpose.

Response: Intervening events since the submission of this comment have rendered the 

comment no longer germane to the situation of the NY-NJ-CT area. Because the EPA is 

finalizing the determination of the NY-NJ-CT area’s failure to attain by the attainment date and 

the corresponding reclassification to Moderate, the new deadlines established under today’s 

action for submitting a SIP to address the 2008 ozone NAAQS, and by extension the 1997 ozone 

NAAQS, alleviate the commenter’s concern that the timing under the proposed SIP Call would 

not be productive.

Transport related comments

Comment: [2] Commenter (0005) believes the proposed SIP Call unfairly burdens the 

states that have significantly reduced their NOx emissions while other states have increased 

ozone season NOx emissions.

Response: The CAA directs much of the responsibility for attainment of any NAAQS 

onto the states in which the nonattainment area resides. However, under CAA section 

110(a)(2)(D)(i)(I), all states have an obligation to eliminate the significant contributions of their

emissions to nonattainment or interference with maintenance of the NAAQS in other states.

Where states have failed to make required SIP submissions or have made inadequate SIP 

submissions fulfilling the requirements of section 110(a)(2)(D)(i)(I), the EPA has fulfilled its 

obligation to implement that provision by issuing SIP Calls or issuing Federal Implementation 

Plans (FIPs), where appropriate. Most recently, the EPA issued the Cross-State Air Pollution 

Rule (CSAPR) FIPs, which addressed upwind state obligations to eliminate significant 

contributions of precursor emissions in order to address, as relevant here, downwind 

nonattainment and interference with maintenance of the 1997 ozone standard. The EPA has also 

proposed to update the ozone-season NOx budgets of CSAPR in order to address states’ 

110(a)(2)(D)(i)(I) obligations for the 2008 ozone NAAQS. See 80 FR 75706, (December 3, 

2015. However, regardless of the implementation of CAA section 110(a)(2)(D)(i)(I), EPA is still 

obligated to enforce the other relevant portions of the CAA, and specifically in this case, to make 
13

a finding that the downwind states’ SIPs, and more specifically, their attainment plans, are 

inadequate to meet the applicable ozone NAAQS and must be revised under 110(k)(5).

Comment: Commenter (0005) believed that it is necessary to ensure that NOx emissions 

are reduced every day during the ozone season. The commenter further stated that unfortunately, 

the EPA and some states have regulatory frameworks for NOx emissions that do not focus on the 

daily nature of the ozone problem. The commenter acknowledged significant steps the state has 

taken to decrease emissions during high ozone days by establishing performance standards for all 

power plants for each day of operation. The commenter further affirmed turbine peak emissions 

will be mostly eliminated with their High Electric Demand Day (HEDD) NOx limits for turbines 

that became effective in 2015. The commenter believed that their state’s daily enforceable 

emission limitations better address ozone nonattainment than emissions trading programs that 

allow the averaging of NOx emissions over the entire summer. The commenter suggested that the 

EPA must consider shifting its focus to daily emissions, not on ozone season emissions. The

commenter alleged that the EPA has failed to recognize the nature of ozone formation in its 

policies that the commenter believes continues to lead to unhealthy air quality and health impacts 

on the citizens of this nation.

Response: The EPA disagrees with the commenter’s contention to the extent that the 

commenter is advocating a one-size-fits-all approach to modeling and controlling the ozone 

problem. The EPA will allow use of any and all technically sound existing ozone modeling in 

any revised attainment plan for the three state NY-NJ-CT area. The EPA strongly recommends 

the states follow the EPA modeling guidance carefully in any new ozone modeling. The EPA 

also realizes that all three states have extensive experience with ozone modeling, as we have 

received attainment demonstrations from each of these states for both the one-hour ozone 

standard and the 1997 ozone NAAQS. The three states should consider daily emissions as part of 

their revised attainment demonstrations. The three state air agencies should review and consider 

the EPA’s draft emissions inventory SIP Guidance and the 2008 ozone NAAQs SIP 

Requirements Rule regarding EGU emissions during HEDD periods. Such emissions can be 

crucial for having a complete understanding of relevant emissions sources within a modeling 

domain. Where these emissions are important for assessing a nonattainment problem, the state 

air agencies should consider the potential impact of HEDD emissions when selecting time 

periods (e.g. episodes, season, year) to model.

Comment: Commenter (0005) suggested that New Jersey should be removed from the 

SIP Call because New Jersey has more stringent existing rules that will further reduce ozone and 

its precursors, while surrounding states have less stringent rules.

Response: The SIP Call is New Jersey’s opportunity to revise the 0.085 ppm (1997) 

ozone attainment plan to reflect any control measure benefit that was not included in the original 

attainment plan and demonstrate that they will now attain with these more stringent rules.

Comment: Commenter (0003) stated that only 3 ozone monitors (i.e., the monitors in 

Stratford, Westport and Madison) do not meet the 1997 ozone NAAQS, based on the monitors’
14

DV10 for the 2011-2013 time period. The commenter also notes that each of the violating 

monitors is located directly on Long Island Sound and all other monitors in Connecticut 

currently comply with the 1997 NAAQS, with the next highest DVs recorded at the Groton and 

Greenwich monitors. The commenter goes on to state that no inland monitors in Connecticut 

have recorded a 4th-high 8-hour ozone value of 0.085 ppm or higher since 2008. The commenter 

asserts that this evidence points to the dominating role that interstate transport plays in 

overwhelming Connecticut’s efforts to achieve and maintain compliance with the 1997 ozone 

NAAQS. In addition another commenter points to the fact that the only monitors not meeting the 

1997 ozone NAAQS are in Connecticut, while the monitors in the New York and New Jersey 

portion of the three-state nonattainment area are meeting the 1997 ozone NAAQS. Another 

commenter also states that it will take more than a “three-state SIP Call to address the high levels 

in Connecticut,” and that if the EPA had adequately addressed transport, the 1997 NAAQS 

would not have been violated in the NY-NJ-CT nonattainment area. 

Response: The EPA agrees with the comments regarding the attainment status of the 

ozone monitors in the Connecticut portion of the NY-NJ-CT area. The EPA also notes that 

current certified 2014 ozone data show only one monitoring site (i.e., the Westport monitor) 

violating the 1997 ozone NAAQS (See Table 3). However, even with only one site violating the 

1997 ozone NAAQS, the entire nonattainment area is by definition not meeting the 1997 ozone 

NAAQS, and the EPA therefore must rescind the previously issued CDD.

11 See 40 CFR Part 

52.377(k). Today’s final rescission of the CDD for the NY-NJ-CT area is based on the ozone 

data presented in the Notice of Proposed Rulemaking (NPR) and reproduced in Table 3 as the 

certified ozone DVs for 2010-2012 and 2011-2013, as well as the most recent quality-assured 

and certified 2012-2014 DVs, which continue to show that the area’s prolonged violation of the 

1997 ozone standard. These certified data support our determination to rescind the area’s CDD in 

this final rule. Preliminary 2013-2015 data indicates the area could conceivably attain the 1997 

ozone NAAQS standard. However, the EPA does not believe that this possibility is reason 

enough not to finalize our proposed rescission of the CDD, given that the area’s 2010-2012, 

2011-2013, and 2012-2014 design values have continually violated the 1997 ozone standard.

As noted above, the NY-NJ-CT area was designated nonattainment for the 1997 ozone 

NAAQS in 2004. Once a multistate area is designated nonattainment for ozone, the states with 

jurisdiction over the area must work together to achieve attainment for the area. (See CAA 

section 182(j).) Regardless of where the violating monitors are in the nonattainment area, the

states with jurisdiction over the area are collectively responsible and obligated to address 

 

10 A design value is a statistic that describes the air quality status of a given location relative to 

the level of the NAAQS. Note that for purposes of the 1997 8-hour ozone NAAQS, ozone DVs

are calculated based on the 3-year average of the annual 4th maximum 8-hour ozone 

concentration. An area is considered in nonattainment when the 3-year design value is equal to or 

greater than 0.085 parts per million (ppm). Ozone DVs are listed at 

www.epa.gov/airtrends/values.html. See 40 CFR part 50.

11 See 77 FR 36163, (June 18, 2012).
15

attainment such that the entire area achieves the NAAQS.

With respect to the transport issue, the EPA acknowledges that transport, both from 

outside of the NY-NJ-CT area, and from within the nonattainment area (e.g., from the northern 

New Jersey or New York state portion of the area), play a role in the exceedances observed in 

southwestern Connecticut. However, today’s CDD rescission and SIP Call for a new ozone 

attainment demonstration and required attainment planning SIPs are based on the recorded ozone 

monitoring data within the nonattainment area. When developing a new attainment 

demonstration for the nonattainment area, the three states should work together to analyze the 

effects of transport and factor that into their analysis and planning for attainment. 

Table 3: Design Values for Ozone Monitors in the NY-NJ-CT area

(Due to EPA rounding convention, values at 0.085 ppm and above

are considered as not meeting the 1997 ozone NAAQS) 

State County Site Location Monitor ID

2010 – 2012 

Design 

Value (ppm)

2011 – 2013 

Design 

Value (ppm)

2012 – 2014 

Design 

Value (ppm)

CT Fairfield Danbury 090011123 0.083 0.081 0.078

CT Fairfield Greenwich 090010017 0.082 0.083 0.082

CT New Haven Madison 090099002 0.086 0.089 0.081

CT Middlesex Middletown 090070007 0.080 0.081 0.081

CT New Haven New Haven 090090027 0.076 0.078 0.076

CT Fairfield Stratford 090013007 0.085 0.089 0.084

CT Fairfield Westport 090019003 0.085 0.087 0.085

NJ Hudson Bayonne 340170006 0.078 0.072 0.070

NJ Morris Chester 340273001 0.078 0.076 0.072

NJ Hunterdon Flemington 340190001 0.080 0.077 0.072

NJ Bergen Leonia 340030006 0.078 0.077 0.073

NJ Monmouth Monmouth U. 340250005 0.083 0.078 0.072

NJ Essex Newark 340130003 0.082 0.076 0.073

NJ Passiac Ramapo 340315001 0.075 0.072 0.069

NJ Middlesex Rutgers U. 340230011 0.085 0.079 0.074

NY Suffolk Babylon 361030002 0.085 0.081 0.073

NY New York CCNY 360610135 0.076 0.072 0.067

NY Bronx Pfizer-Bronx 360050133 0.076 0.074 0.071

NY Suffolk Holtsville 361030009 0.080 0.078 0.071

NY Queens Queens College 360810124 0.080 0.079 0.072

NY Suffolk Riverhead 361030004 0.079 0.080 0.075

NY Richmond Susan Wagner 360850067 0.083 0.078 0.073

NY Westchester White Plains 361192004 0.076 0.075 0.075

Comment: Commenter (0003) asserted that the ozone meteorology of Long Island Sound 

and coastal Connecticut is unique, and that the source region for the ozone exceedance is most 

likely not Connecticut but areas to the south and west of Connecticut. That same commenter 
16

shows a back trajectory analysis of one episode to show this effect.12

Response: Although the ozone meteorology of coastal Connecticut and Long Island 

Sound may be unique, the ozone exceedances there must be addressed. As mentioned in an 

earlier response above, interstate transport may play a role in Connecticut’s ozone exceedances, 

but today’s action of rescinding the CDD and issuing a SIP Call is the statutory and regulatory 

consequence of ozone exceedances being recorded in the nonattainment area. Interstate transport 

may need to be addressed in the ozone attainment demonstrations submitted by the states in 

response to this SIP Call, but is not relevant to the factual determination that the area is currently 

not attaining, and therefore the CDD must be rescinded.

Comment: Commenter (0003) asserted that CSAPR modeling confirms the 

overwhelming role that interstate transport plays in causing Connecticut’s high levels of ozone, 

especially at the coastal sites. The commenter states that “the EPA’s modeling indicates that 

emissions outside of Connecticut’s regulatory control contributed at least 95% of modeled 2012 

ozone levels at each of the three coastal monitors with measured 2013 DVs that violate the 1997 

NAAQS.”

Response: The EPA does not disagree the CSAPR modeling shows that Connecticut is 

impacted by ozone transport. In CSAPR, promulgated on August 8, 2011 (76 FR 48207), the 

EPA found that emissions of sulfur dioxide and NOx in 27 eastern, midwestern, and southern 

states contribute significantly to nonattainment or interfere with maintenance in one or more 

downwind states with respect to one or more of three air quality standards—the annual PM2.5

NAAQS promulgated in 1997, the 24-hour PM2.5 NAAQS promulgated in 2006, and, as relevant 

here, the ozone NAAQS promulgated in 1997.

For the 1997 ozone NAAQS specifically, twenty states are required under CSAPR to reduce NOx

emissions during the ozone season (May through September) because they contribute to 

downwind states’ ozone pollution. The emission reductions required by CSAPR in these upwind 

states, implementation of which was delayed for three years due to litigation and therefore did 

not start until last year, will improve ozone air quality in downwind states and help them attain 

and maintain the 1997 8-hour ozone standard.

Comment: Commenter (0003) states: “As described in Connecticut’s Attainment 

Demonstration SIP,13 Connecticut already has in place... control strategies designed to reduce 

ozone precursor emissions, achieve compliance with the 1997 ozone NAAQS and address 

 

12 A back-trajectory is a meteorological modeling system that can show and/or predict the 

possible source region of an air parcel and the precursor pollutants that air parcel may contain. 

The trajectory is the path the air parcel follows, based on the meteorology of the time period 

modeled.

13 Connecticut submitted an ozone attainment demonstration SIP for the 1997 ozone NAAQS on 

February 1, 2008. The EPA proposed approval of the SIP for the Connecticut portion of the NYNJ-Connecticut area on May 9, 2013, but has not taken final action.
17

Connecticut’s contributions to downwind ozone levels. Many of the strategies continue to 

accumulate additional reductions as, for example, older on-road and non-road 

vehicles/equipment are replaced by newer, lower emitting, vehicles and equipment.” The 

commenter goes on to state that NOx emissions in Connecticut are expected to decline more than 

40% by 2017 and 50% by 2025, compared to emission levels in 2007. The commenter states that 

additional emission reductions can be expected from Connecticut’s Low Emission Vehicle III 

program and the EPA’s recently finalized Tier 3 program, as well as from stationary source 

regulation revisions that Connecticut will consider as part of its effort to meet RACT 

requirements for the 2008 ozone NAAQS. The commenter indicates: “These sizable emission 

reductions will significantly reduce Connecticut’s contribution to ozone levels both within the 

state and in downwind areas.”

Response: The EPA agrees that Connecticut has, over the years, promulgated numerous 

ozone pollution control strategies. These strategies have not, however, resulted in Connecticut 

continuously meeting the 1997 ozone NAAQS. The NY-NJ-CT area did not meet the 1997 

ozone NAAQS based on final 2012, 2013, and 2014 data (See Table 3). Thus, the EPA, as 

proposed, is rescinding the CDD for the area and requiring all three states in the area to produce 

a new plan showing how the area can meet the 1997 ozone NAAQS as expeditiously as possible.

As noted in the August 27, 2015 proposal, today’s final action reclassifying the NY-NJ-CT area 

as Moderate for the 2008 ozone NAAQS requires New Jersey, New York, and Connecticut to 

submit a Moderate area attainment demonstration for the 2008 ozone NAAQS independent of 

the three states’ obligations to respond to the SIP Call. By meeting this independent statutory 

obligation, Connecticut will also satisfy its obligation under this final SIP Call under CAA 

section 110(k)(5). 

Comment: One commenter (0003) urged the EPA to expand the scope of its SIP Call 

under 110(k)(5). Specifically, CT DEEP states that section 110(k)(5) of the CAA either compels 

the EPA to expand the proposed SIP Call or provides the EPA with the authority necessary to 

expand the scope of the proposed SIP Call and asserts that the EPA should, therefore, withdraw 

the present proposal and issue a new proposal that includes within the SIP Call any state that is 

shown to significantly contribute to the 3 violating monitors because these states have failed to 

meet their obligations under CAA section 110(a)(2)(D)(i)(I).14 CT DEEP also argues that the 

EPA should more broadly apply its authority under 110(k)(5) because the provision allows the 

Agency to issue a SIP Call to address states’ SIPs that do not adequately mitigate their interstate 

transport as described in sections 176A and 184, or to address states’ SIPs that more generally 

are inadequate to “otherwise comply with any requirement of this chapter.” In addition, the 

commenter believed that the recent U.S. Supreme Court decision in EPA v. EME Homer City

(134 S. Ct. 1584 (2014)), compels the EPA to immediately issue federal implementation plans 

(FIPs) for upwind states that have failed to take all necessary steps to make it feasible for any 

nonattainment area significantly impacted by interstate air pollution to attain and maintain both 

 

14 The commenter refers to states’ interstate transport obligations under Clean Air Act section 

110(a)(2)(D)(ii), but EPA understands these citations to in fact refer to the good neighbor 

provision, which is CAA section 110(a)(2)(D)(i)(I).
18

the 1997 and 2008 8-hour ozone NAAQS.” Finally, the commenter noted that the “CSAPR 

modeling shows that Connecticut receives no more than a 0.2 ppb total benefit from the CSAPR 

remedy, which is entirely inadequate given the overwhelming scope of transport.”

Response: CAA section 110(a)(2)(D)(i)(I) requires states to prohibit emissions that 

contribute significantly to nonattainment in, or interfere with maintenance by, any other state 

with respect to any primary or secondary NAAQS. In CSAPR, promulgated on August 8, 2011 

(See 76 FR 48207), the EPA found that emissions of SO2 and NOx in 27 eastern, midwestern, 

and southern states contribute significantly to nonattainment or interfere with maintenance in one 

or more downwind states with respect to one or more of three air quality standards—the annual 

PM2.5 NAAQS promulgated in 1997, the 24-hour PM2.5 NAAQS promulgated in 2006, and the 

ozone NAAQS promulgated in 1997.

For the 1997 ozone NAAQS specifically, twenty states are required under CSAPR to 

reduce NOx emissions during the ozone season (May through September) because they 

contribute to downwind states’ ozone pollution. The emission reductions under CSAPR in these 

upwind states will improve ozone air quality in downwind states and help them attain and 

maintain the 1997 8-hour ozone standard.

The timing of CSAPR's implementation was initially affected by litigation over the rule. 

On December 30, 2011, the D.C. Circuit stayed the effectiveness of CSAPR pending resolution 

of judicial review. On August 21, 2012, the D.C. Circuit vacated CSAPR,15 but on April 29, 

2014, the U.S. Supreme Court issued an opinion reversing the D.C. Circuit’s 2012 decision and 

remanded the case to the D.C. Circuit.16 Following the remand, on October 23, 2014, the D.C. 

Circuit granted the EPA’s motion to lift the CSAPR stay and toll the CSAPR compliance 

deadlines by 3 years. Accordingly, CSAPR Phase 1 implementation began on January 1, 2015, 

with Phase 2 beginning in 2017. See CSAPR interim final rule at 81 FR 13275 (March 14, 2016). 

Subsequently, the D.C. Circuit issued its final ruling as to CSAPR, affirming it in most respects 

but invalidating without vacating several of the rule’s state-specific budgets, including some of 

the rule’s Phase 2 ozone-season NOx budgets.17 The EPA has since proposed a rulemaking to 

update to the CSAPR ozone-season NOx budgets in order to address the more stringent 2008 

ozone NAAQS and to respond to the D.C. Circuit’s remand of the Phase 2 ozone-season NOx 

budgets.18 As proposed, the CSAPR Update ozone-season NOx budgets would be effective 

starting in 2017, effectively replacing CSAPR Phase 2.

The EPA disagrees with the commenter that the Supreme Court’s decision in EPA v. 

EME Homer City compels the agency to issue new FIPs or to expand the scope of the proposed 

SIP Call to address the 1997 and 2008 8-hour ozone NAAQS. The Supreme Court did, however, 

confirm that the EPA properly issued the CSAPR FIPs in response to disapprovals of SIPs or 

findings of failure to submit SIPs implementing states’ 110(a)(2)(D)(i)(I) obligations with regard 

to the 1997 ozone NAAQS. Those FIPs took effect and began implementation on January 1, 

 

15 EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012).

16 EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014).

17 EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015).

18 80 FR 75706 (December 3, 2015).
19

2015 pursuant to the D.C. Circuit’s grant of the EPA’s motion requesting lifting of the stay, so 

we note that at the time the NY-NJ-CT area fell back into nonattainment of the 1997 standard, it 

did not have the benefit of CSAPR reductions. While the commenter points out that modeling 

conducted for the CSAPR rulemaking projected that the remedy would provide “no more than a 

0.2 ppb total benefit,” the same modeling also predicted that those reductions, once 

implemented, would fully resolve nonattainment and maintenance problems for the 1997 ozone 

NAAQS in the receptors identified in the NY-NJ-CT nonattainment area. For upwind states that 

were linked only to receptors where downwind nonattainment and maintenance problems were 

fully resolved under the remedy, the EPA found that CSAPR quantified the full reduction 

responsibility for the 1997 ozone NAAQS under CAA section 110(a)(2)(D)(i)(I).19 Therefore, 

the EPA could not expand the scope of the SIP Call being issued on the basis that upwind states 

had not fulfilled their 110(a)(2)(D)(i)(I) obligations as to the 1997 ozone NAAQS when the EPA 

has already issued a FIP that fully resolves the obligations of those states with respect to that 

standard.

The EPA also does not agree that it would be appropriate in this action to more broadly 

apply its 110(k)(5) authority to include additional states in this SIP Call to address interstate 

pollutant transport as described in sections 176A and 184 of the CAA. The EPA acknowledges 

that a number of states, including Connecticut and New York, submitted a petition under CAA 

section 176A requesting that the EPA add additional states to the Ozone Transport Region 

(OTR) that was established under section 184 of the CAA. The EPA is reviewing that petition 

separately and is not acting on that petition in this action. In addition, the EPA’s authority to 

require SIP revisions under 110(k)(5) as they relate to additional control measures required by 

CAA section 184 applies to only states that are currently part of the OTR.

EPA is finalizing the SIP Call for Connecticut, New Jersey and New York proposed in 

the May 15, 2014 NPR (79 FR 27830) and is not proposing or finalizing any other potential SIP 

Calls. If, in the future, the EPA determines that additional SIP Calls to address the 1997 ozone 

NAAQS are justified notwithstanding implementation of CSAPR, we will propose such SIP 

Calls through notice and comment rulemaking. We note that with regard to addressing interstate 

transport problems affecting nonattainment and maintenance of the 2008 ozone NAAQS, EPA 

has proposed to tighten the ozone season NOx budgets for nearly all CSAPR states, including the 

majority of the states whose Phase 2 budgets were remanded by the D.C. Circuit. See 80 FR 

75706 (Dec. 3, 2015).

Comment: Commenter (0003) alleged that the EPA lacks authority under the CAA to 

use monitored noncompliance with the 1997 8-hour ozone NAAQS to require the preparation 

and submission of an attainment demonstration for the 2008 8-hour ozone NAAQS because the 

NY-NJ-CT area is classified as a marginal nonattainment area for the 2008 ozone NAAQS.

The commenter also alleged that the EPA lacks authority under the CAA to use 

monitored noncompliance with the 1997 8-hour ozone NAAQS to suggest Connecticut to 

 

19 See 76 FR 48210, Federal Implementation Plans: Interstate Transport of Fine Particulate 

Matter and Ozone and Correction of SIP Approvals (August 8, 2011).
20

voluntarily reclassify the Connecticut portion of the NY-NJ-CT marginal nonattainment area to 

Moderate under the 2008 8-hour ozone NAAQS. 

Response: These comments are no longer germane as EPA is today finalizing a 

determination that the NY-NJ-CT nonattainment area failed to attain the 2008 ozone NAAQS by 

its Marginal attainment date, and is by operation of law reclassifying the area to Moderate. The 

area is therefore no longer a Marginal ozone nonattainment area for the 2008 ozone NAAQS and 

can no longer request to be “bumped up” because it has already been reclassified to Moderate by 

operation of law. Therefore, as finalized today, the area is required to submit a Moderate area 

plan by January 1, 2017 addressing how it will attain the 2008 ozone NAAQS.

Comment: A commenter (0003) stated that it is unclear whether the EPA is authorized to 

issue this proposed SIP Call without first taking final action on pending Connecticut SIP 

revisions related to the 1997 8-hour ozone NAAQS. The same commenter (CT) also asks if the 

fact that the EPA approved New York and New Jersey's 1997 NAAQS attainment demonstration 

SIPs while the EPA took four years to propose approval for Connecticut's attainment 

demonstration possibly impact Connecticut differently than the other states in the NY-NJ-CT 

area.

Response: The commenter is correct that the EPA has not taken final action on the ozone

attainment demonstration for the Connecticut portion of the NY-NJ-CT area, but did approve the 

ozone attainment plans for the New Jersey and New York portion of this same nonattainment 

area. Nevertheless, the existing state implementation plans for all three states are inadequate to 

demonstrate attainment for the 1997 ozone NAAQS, and therefore a SIP Call under section 

110(k)(5) is appropriate. As explained in our May 15, 2014 proposal (79 FR 27833), the 

approvals for New Jersey and New York, and the proposed approval for Connecticut, were based 

on the fact that the plans showed that the NY-NJ-CT area would attain by the area’s June 15, 

2010 attainment date. Since the nonattainment area has since violated the 1997 8-hour ozone 

standard, the EPA is now requiring the States of Connecticut, New Jersey and New York to 

submit updated plans and SIPs addressing the related planning requirements showing how the 

area will re-attain the standard and meet other planning requirements. The SIP Call applies 

equally to the States of Connecticut, New Jersey and New York. Prior approval by the EPA of 

any attainment plan for portions of the NY-NJ-CT ozone nonattainment area have no bearing on 

this SIP Call for a new ozone attainment demonstration for the NY-NJ-CT area.

Comment: A commenter (0003) asked whether the EPA would issue a new CDD if the 

area’s DVs for 2014 or 2015 complied with the 1997 NAAQS, thus negating the need to submit 

a revised 1997 NAAQS attainment demonstration SIP, which the commenter believed would 

likely be due to the EPA in 2016. CT DEEP requests that the EPA clarify how Connecticut 

should proceed under this potential scenario. 

Response: The area did not attain the 1997 NAAQS based on the 2012-2014 DVs. If the 

NY-NJ-CT area begins once again to meet the 1997 ozone NAAQS with complete and certified 

ozone data, the EPA could consider issuing a new CDD (via notice and comment rulemaking). 

This would suspend the obligation for New York, New Jersey, and Connecticut to submit 

attainment demonstrations and to address the other attainment planning related requirements for 

purposes of meeting the 1997 ozone NAAQS. The EPA notes, however, that insofar as the states 

are planning to respond to the 1997 ozone SIP Call by submitting the attainment planning 
21

requirements for the more stringent 2008 ozone NAAQS, the obligation to submit a SIP to 

address the 2008 ozone requirements would not be suspended by a new determination that the 

area is attaining the 1997 standard, because the area is separately and independently required to 

submit the 2008 ozone Moderate area planning requirements as a result of its failure to attain by 

the 2008 ozone Marginal attainment date and accompanying reclassification.

Comment: One commenter (0003) believed the EPA is acting in error wherein it claimed

that by acting under section 110(k) of the CAA that this proposed action is not a “significant 

regulatory action.” Because the violating coastal monitors in Connecticut are heavily influenced 

by illegal interstate air pollutant transport, the EPA must also revoke each 110(a)(2)(D)(i)(I) SIP 

submitted by every upwind state that significantly contributes and interferes with Connecticut’s 

ability to maintain compliance with the 1997 8-hour ozone NAAQS. CT DEEP asserted that if 

the EPA acknowledged the culpability of upwind states to Connecticut’s air quality problems 

and correctly named such states within this proposed SIP Call, then the May 15, 2014 NPR

would have triggered the requirement for the EPA to provide the analysis required by Executive 

Order (EO) 12866. As such, the State of Connecticut believed the EPA is acting in contravention 

to both the letter and spirit of EO 12866. The state asserted that, if the EPA had taken the impact 

of interstate air pollution transport into account, the agency it would have been constrained to 

acknowledge this is a significant regulatory action under EO 13211 and acted accordingly.

Response: As noted in earlier responses in this section, the EPA disagrees with the 

commenter that the Agency either must or should expand the scope of the SIP Call being 

finalized in this notice to include upwind states that significantly contribute to monitors in the 

NY-NJ-CT nonattainment area. As we explained in the response above, the EPA disapproved the 

110(a)(2)(D)(i)(I) transport SIPs or issued findings of failure to submit those SIPs for each of the 

states upwind of the monitoring receptors in Connecticut that the Agency projected would have 

nonattainment and maintenance problems with respect to the 1997 8-hour ozone NAAQS.

Accordingly, the EPA issued CSAPR FIPs in order to fulfill the EPA’s obligation to act where 

state SIPs had been disapproved or states had failed to submit SIPs under 110(a)(2)(D)(i)(I) for 

the 1997 standard. For the states upwind of the receptors in the NYC nonattainment area that 

were projected to violate the 1997 8-hour ozone standard, the EPA determined that the CSAPR 

FIP fulfilled the upwind states’ and the EPA’s obligation under the good neighbor provision.20

CSAPR was a “significant regulatory action” that was subject to review by OMB under EO 

 

20 In fact, as we noted above, the D.C. Circuit held the CSAPR ozone season budgets over 

controlled upwind states insofar as EPA had included a number of the upwind states in the Phase 

2 ozone season trading program where the record indicated that no transport rule was needed for 

purposes of addressing nonattainment and maintenance problems under the 1997 standard. EME 

Homer City, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015). This only furthers the Agency’s 

conclusion that it could not require additional reductions under 110(a)(2)(D)(i)(I) for purposes of 

the 1997 standard. 
22

12866, and the EPA documented in the docket for the CSAPR rulemaking the changes made in 

response to OMB recommendations.21 Also in accordance with EO 12866, the EPA prepared an 

analysis of the potential costs and benefits of CSAPR in its Regulatory Impacts Analysis. Id. In 

addition, the EPA determined that CSAPR was a significant energy action under EO 13211 and 

accordingly, prepared a Statement of Energy Effects for CSAPR. See 76 FR 48346.

This proposed SIP Call, by contrast, is limited to the attainment planning activities of 

three states with respect to one NAAQS for one nonattainment area, and is not likely to have an 

annual effect on the economy of $100 million or more, nor does it adversely affect in a material 

way the economy, productivity, competition, jobs, the environment, public health or 

governments or communities. The EPA therefore does not believe that today’s SIP Call meets 

the definition of “significant regulatory action” under EO 12866 (and by extension, EO 13211).

Finally, as we noted above, the EPA has issued a proposal to tighten most of the ozone 

season budgets in the CSAPR program in order to address nonattainment and maintenance of the 

2008 ozone NAAQS. See 80 FR 75706 (Dec. 3, 2015). Those reductions, which would come into 

effect by 2017 would also replace the Phase 2 ozone season budgets that were remanded by the 

D.C. Circuit. 

Attainment Planning Requirements

Comment: A commenter (0003) asked how the timing of revocation relative to the 

timing of finalization of the SIP Call would impact the requirements of the SIP Call if the EPA’s 

Implementation Rule for the 2008 NAAQS revoked the 1997 ozone NAAQS.

Response: The EPA has finalized the Implementation Rule for the 2008 NAAQS and 

revoked the 1997 ozone NAAQS effective April 6, 2015. See 80 FR 12264, (March 6, 2015). As 

noted earlier in this document, the revocation of the 1997 ozone NAAQS does not alter New 

York, New Jersey and Connecticut’s obligations to have approved into their respective SIPs 

demonstrations of how the area will attain the 1997 ozone NAAQS and the associated control 

measures required for such demonstration. The obligations to have an adequate attainment 

demonstration, RFP, RACM, and contingency measures were retained as anti-backsliding 

measures for the revoked 1997 ozone NAAQS. Because the NY-NJ-CT area is no longer 

attaining the standard, the EPA is finding that the SIPs for those states are substantially 

inadequate for the purposes of meeting those anti-backsliding measures.

Comment: Commenter (0008) advocated that it would also be important for the EPA to 

address nonattainment through regional and national programs to eliminate the additional 

economic burden to New York's residents and businesses caused by discrepancies in the 

stringency of various state programs. 

Response: The EPA recognizes that regional and national programs can play a 

significant role in combatting nonattainment. For example, implementation of the Tier 3 motor 

 

21 See 76 FR 48435 (August 8, 2011), Federal Implementation Plans: Interstate Transport of Fine 

Particulate Matter and Ozone and Correction of SIP Approvals: Final Rule.
23

vehicle program nationally is expected to reduce NOx emissions from the on-road inventory by 

10-25% starting in 2018. The EPA acknowledges that transported pollutants and their precursor 

emissions, both from outside of the NY-NJ-CT area, and from within the area (i.e., from the 

northern New Jersey or New York state portion of the area), may play a role in the exceedances 

observed in southwestern Connecticut. The Cross-State Air Pollution Rule, which had been 

stayed for several years pending judicial review, began implementation on January 1, 2015, and 

requires reductions from areas upwind of the NY-NJ-CT area. Today’s CDD rescission and SIP 

Call for a new ozone attainment demonstration are based on the recorded ozone monitoring data 

within the nonattainment area. When developing a new attainment demonstration for the 

nonattainment area, the three states should work together to analyze the effects of transport and 

all national measures and may factor that into their analysis and planning for attainment.

Comment: Commenter (0003) suggested that the EPA should not subject the NY-NJ-CT 

area to a different procedure than it does for similar air quality areas in the nation.

Response: The NY-NJ-CT area is the only moderate nonattainment area in the nation 

that is not attaining the 1997 ozone standard based on certified 2014 air quality data.

Comment: Commenter (0003) asked what emissions inventories are acceptable to the 

EPA for use in a revised attainment demonstration (e.g., MARAMA 2007 base/future; upcoming 

EPA or MARAMA 2011 base/future).

Response: The Emission Inventory Improvement Program (EIIP) is a jointly sponsored 

effort of the states and the EPA, and is an outgrowth of the Standing Air Emissions Work Group. 

The goal of EIIP is to provide cost-effective, reliable inventories by both improving the quality 

of emissions information, and by developing system(s) for collecting, calculating, and reporting 

emissions data. Documents prepared by the EIIP should be considered the equivalent to federal 

guidance. On April 11, 2014, the EPA made available its Draft “Emissions Inventory Guidance 

for Implementation of Ozone [and Particulate Matter] National Ambient Air Quality Standards 

(NAAQS) and Regional Haze Regulations.”

22The EPA encourages the NY-NJ-CT area to use the 

resources of the EIIP in developing any new emission inventories for any new attainment 

demonstration modeling. The EPA recognizes that all three states have extensive experience with 

ozone emission inventories (e.g., each of these states have submitted ozone emission inventories 

for both the one-hour ozone standard and for state plans under the 1997 ozone NAAQS).

Comment: A commenter (0003) asked what years must be used if a revised Reasonable 

Further Progress (RFP) SIP is required.

Response: Because the EPA is today reclassifying the NY-NJ-CT area to Moderate, the 

states must provide a Moderate area plan for the 2008 ozone NAAQS, which will include an 

 

22 See http://www3.epa.gov/ttn/chief/eidocs/eiguid/2014revisedeiguidance.pdf. Further 

information may be located at: www.epa.gov/ttn/chief/eiip/index.html.
24

attainment demonstration, RFP, RACM, and contingency measures. The RFP baseline year for 

such SIP was 2011, however, states may use an alternate year (i.e., other than 2011) between the 

years of 2008 to 2012 that the state justifies as appropriate.23 RFP requirements at 40 CFR 

51.1110 also require that if a state selects a pre-2011 alternate baseline year, the area must 

achieve 3 percent emission reductions each year after the initial 6-year period has concluded up 

to the beginning of the attainment year.

Comment: Commenter (0003), the State of Connecticut, asked if the state must update 

conformity budgets, and if so whether Connecticut should use the current version of the MOVES 

Motor Vehicle Emissions model or the upcoming revised version.

Response: The motor vehicle emission budgets (MVEBs) established under the 1997 

ozone NAAQS and determined adequate or approved into the SIP remain valid for 

demonstrating conformity to the new 2008 ozone NAAQS until new MVEBs are established in a 

SIP for the 2008 ozone standard. The transportation conformity regulation at 40 CFR 

93.109(c)(2)(i) states, “If the nonattainment area covers the same geographic area as another 

NAAQS of the same pollutant, the budget test [must be satisfied] as required by § 93.118 using 

the approved or adequate MVEBs for that other NAAQS.” Connecticut’s 2008 eight-hour ozone 

nonattainment areas cover the same geographic area as the 1997 eight-hour ozone nonattainment 

areas, therefore it is acceptable under the regulation for Connecticut to use approved MVEBs for 

the 1997 ozone NAAQS to demonstrate conformity under the 2008 ozone NAAQS, yet, states 

are required to submit a new attainment demonstration that includes new MVEBs for the 2008 

ozone standard. 

On October 7, 2014, the EPA published the notice of availability for the MOVES2014 

Motor Vehicle Emissions Model for SIPs and Transportation Conformity.24 On November 4, 

2015, the EPA issued a minor revision to MOVES2014, called MOVES2014a. SIP modeling not 

substantially underway should use the new MOVES2014a model. Information about using 

MOVES2014a in a particular area is available on EPA’s MOVES web site.25 The state should 

discuss the use of MOVES2010b/MOVES2014a with the Regional EPA Office. Additional 

guidance is available in “EPA’s Policy Guidance on the Use of MOVES2014 and Subsequent 

Minor Revisions for State Implementation Plan Development, Transportation Conformity, and 

Other Purposes,” (EPA-420-B-14-008, July 2014). This document describes how and when to 

use the MOVES2014 for SIP development, transportation conformity, general conformity, and 

 

23 See 80 FR 12272, (March 6, 2015). Preamble contains discussion of alternate baseline year a 

state may select.

24 See http://www.gpo.gov/fdsys/pkg/FR-2014-10-07/pdf/2014-23258.pdf

25 See either http://www.epa.gov/otaq/models/moves/index.htm or, 

http://www.epa.gov/otaq/stateresources/transconf/contacts.htm. 
25

other purposes.26

MOVES2014 and 2014a Technical Guidance: Using MOVES to Prepare Emission 

Inventories for State Implementation Plans and Transportation Conformity (PDF) (63 pp, 

1.0MB, EPA-420-B-15-093, November 2015). This document provides guidance on appropriate 

input assumptions and sources of data for the use of MOVES2014 in SIP submissions and 

regional emissions analyses for transportation conformity purposes.27

Comment: A commenter (0003) asked if updated photochemical modeling will be 

required to demonstrate attainment with the 1997 ozone NAAQS and if so, whether recent 

existing modeling (e.g., OTR screening modeling) or upcoming modeling (e.g., OTR or the 

EPA’s new transport rule) can be used in the revised attainment demonstration. Additionally, the 

commenter specifically asked what other technical analyses, not already mentioned, will be 

required (e.g., Weight of Evidence, contingencies, etc).

Response: The EPA has the authority to require states to use appropriate modeling to 

predict the effect of emissions on air quality of any NAAQS. States are required to submit an 

attainment demonstration for Moderate areas. Since photochemical modeling is the most 

scientifically rigorous technique to determine NOx and/or VOC emissions reductions needed to 

show attainment of the NAAQS, we are requiring photochemical modeling for all attainment 

demonstrations, including those for Moderate areas. However, in concert with the flexibility 

applicable to Serious and above areas under section 182(c)(2)(A), EPA will consider on a caseby-case basis other analytical methods that are at least as effective as photochemical modeling.

In this case, the states will likely be responding to EPA’s SIP Call for a new attainment 

demonstration for the 1997 ozone NAAQS by preparing and submitting an attainment 

demonstration that shows expeditious attainment for the 2008 ozone NAAQS. The EPA is 

requiring the states to employ photochemical modeling to demonstrate how the area will meet 

the 2008 ozone NAAQS.

The EPA has an extensive guidance document on ozone modeling (See “Guidance on the 

Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for 

Ozone, PM2.5, and Regional Haze,” EPA-454/B-07-002, April 2007; hereinafter referred to as the 

EPA modeling guidance. The EPA recommends the states follow the EPA modeling guidance 

carefully in any new ozone modeling. The EPA has recently completed a draft update to this 

guidance and is available for review.28

While modeling is still the critical component of an attainment demonstration, there is 

always some uncertainty associated with modeling results. Weight-of-Evidence analyses are 

meant to support and supplement the modeling results. Many types of information can be used to 

demonstrate that expeditious attainment is likely. These include alternative modeling 

applications, ambient data analyses and trends, emissions analysis and trends and in some cases 

additional emissions controls that were not directly accounted for in the modeling demonstration.

Any state contemplating an alternative analytical method to substitute for photochemical 

 

26 See http://www.epa.gov/otaq/models/moves/documents/420b14008.pdf

27 See http://www.epa.gov/otaq/models/moves/documents/420b15007.pdf

28 See http://www3.epa.gov/ttn/scram/guidance_sip.htm
26

modeling must identify and document the method and seek formal approval from the EPA.

Comment: Commenter (0003) noted that the EPA is acting arbitrarily and capriciously 

by not pursuing similar actions against other nonattainment areas (Sheboygan) that are similarly 

situated to the NY-NJ-CT area with respect to noncompliance with the 1997 8-hour ozone 

NAAQS. In addition, another commenter (New Jersey) names several other 1997 ozone 

nonattainment areas across the eastern U.S. that have ozone DVs based on 2010-2012 ozone data 

as being over the 1997 ozone NAAQS. These areas include, in addition to Sheboygan, the 

following nonattainment areas: Houston, Dallas, Allegan County in Michigan, Baltimore, 

Philadelphia, Louisville, St. Louis, Washington, D.C., and Cincinnati.

Response: This comment was made when the most recent quality-assured air quality 

monitoring data available was the 2011 to 2013 data. At this time, the 2014 DVs are available 

based on the quality-assured 2012 to 2014 monitoring data. The 2014 DVs indicate that all the 

areas listed in the comment including the Sheboygan nonattainment area are once again attaining 

the 1997 ozone standard. The 2014 DVs for these 1997 ozone areas are readily available at the 

web site provided in the footnote below.29 Today’s action only pertains to the NY-NJ-CT area, 

which did not meet the 1997 ozone NAAQS based on certified 2010-2012 and 2011-2013 ozone 

data, and is still not meeting the 1997 ozone NAAQS based on certified 2012-2014 ozone data.

The rescission of the Clean Data Determination for the NY-NJ-CT area is not arbitrary and 

capricious, but is in keeping with the Clean Data Rule at 40 CFR 51.1118 and our June 18, 2012 

(77 FR 36163) rulemaking issuing the Clean Data Determination for the NY-NJ-CT area.

 

29 See http://www.epa.gov/airtrends/values.html