Clean Air Act Attainment Extension for the New York-Northern New Jersey-Long Island Consolidated Metropolitan Statistical Carbon Monoxide Nonattainment Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket NJ24-1a-158; FRL-5643-2]

Clean Air Act Attainment Extension for the New York-Northern New

Jersey-Long Island Consolidated Metropolitan Statistical Carbon

Monoxide Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: This action grants a one (1) year attainment date extension

for the New York-Northern New Jersey-Long Island Consolidated

Metropolitan Statistical Carbon Monoxide nonattainment area (NYCMSA)

which also includes parts of two counties in southwestern Connecticut.

The NYCMSA failed to attain the National Ambient Air Quality Standard

(NAAQS) for carbon monoxide (CO) by the December 31, 1995 deadline

contained in the Clean Air Act as amended in 1990 (CAA). However,

section 186(a)(4) of the CAA provides for a one year extension of the

CO attainment date if specific requirements are met. Since the NYCMSA

has met these requirements, EPA is granting the one year extension.

[[Page 56898]]

DATES: This action is effective on January 6, 1997,unless adverse or

critical comments are received by December 5, 1996.If this action is

withdrawn prior to the effective date, timely notice withdrawing this

action will be published in the Federal Register.

ADDRESSES: All comments should be addressed to: Ronald J. Borsellino,

Chief, Air Programs Branch, Environmental Protection Agency, Region II

Office, 290 Broadway, 25th Floor, New York, New York, 10007-1866.

Copies of the States' requests and relevant documents are available

at the following locations for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch,

290 Broadway, 25th floor, New York, New York 10007-1866.

Environmental Protection Agency, Region I Office, Air Quality Planning

Unit, One Congress Street, 11th floor, Boston, Massachusetts 02203.

Environmental Protection Agency, Air and Radiation Docket and

Information Center, Air Docket (6102), 401 M Street, SW., Washington,

DC 20460.

FOR FURTHER INFORMATION CONTACT: Henry Feingersh, Air Programs Branch,

Environmental Protection Agency, Region II Office, 290 Broadway, 25th

floor, New York, New York 10007-1866, (212) 637-4249, or

Wing Chau, Air Quality Planning Unit, Environmental Protection

Agency, Region I Office, One Congress Street, 11th floor, Boston,

Massachusetts 02203, (617) 565-3570.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions Concerning Designation and

Classification

The CAA created a new classification structure for CO nonattainment

areas which was based on the severity of the nonattainment problem. For

moderate CO nonattainment areas with a design value between 9.1-16.4

parts per million (ppm), the attainment date was to be as expeditious

as practicable but no later than December 31, 1995.

The air quality planning requirements for moderate CO nonattainment

areas are set out in sections 186 and 187 of the CAA which pertain to

the classification of CO nonattainment areas and submission of SIP

requirements for these areas, respectively. EPA issued a ``General

Preamble'' which stated EPA's preliminary views concerning how EPA

intended to review SIPs and SIP revisions submitted as required under

Title I of the Act, [see generally 57 FR 13489 (April 16, 1992) and 57

FR 18070 (April 28, 1992)]. States containing CO moderate nonattainment

areas with design values of 9.1-16.4 ppm were required to submit SIPs

for these areas on or before November 15, 1992 which would provide for

attainment by December 31, 1995.

B. Attainment Determinations

EPA has the responsibility for determining whether a nonattainment

area has attained the CO NAAQS by the applicable attainment date, [see

sections 179(c) and 186(b)(2) of the CAA]. EPA also has the

responsibility of making attainment determinations for moderate CO

nonattainment areas by no later than six (6) months after the December

31, 1995 attainment date for these areas. EPA bases the attainment

determinations for CO on whether an area has eight consecutive quarters

(two years) of clean air quality data. No special or additional SIP

submittal is required from the area for this determination. Section

179(c)(1) of the CAA provides that the attainment determination is to

be based on an area's ``air quality as of the attainment date.''

A CO nonattainment area's air quality status is determined in

accordance with 40 CFR 50.8, and in accordance with EPA policy as

stated in a memorandum from William G. Laxton, Director Technical

Support Division, entitled ``Ozone and Carbon Monoxide Design Value

Calculations,'' June 18, 1990. Compliance with the NAAQS is discussed

in terms of the eight-hour CO NAAQS, rather than the one-hour NAAQS,

because the eight-hour NAAQS is typically the standard of concern. For

this nonattainment area, the one-hour CO NAAQS was not exceeded in 1994

or 1995. For determining compliance with the eight-hour CO NAAQS, the

maximum and second maximum (non-overlapping) eight-hour values at a

site for the most recent two years of data are examined. The highest

observed second maximum is used to determine compliance for that site.

The eight-hour CO NAAQS is violated when the second maximum exceeds the

9 ppm standard (greater than or equal to 9.5 ppm to adjust for

rounding, as in 40 CFR 50.8(d)), in either of the two most recent years

of data. If all monitors in a nonattainment area have eight-hour second

maximum values less than 9.5 for the previous eight quarters or a total

of two consecutive and complete years of data, the CO NAAQS is met. If

any monitoring site in an area has a second maximum value greater than

or equal to 9.5 ppm, the area has violated the CO NAAQS.

C. Application for a One-year Extension of the Attainment Date

If the area does not have the two consecutive clean years of data

to show attainment of the CO NAAQS, an area may apply for an extension

of the attainment date. Pursuant to section 186(a)(4) of the Act, an

area may apply for and EPA may grant a one-year extension of the

attainment date if the area has: (1) complied with the requirements and

commitments pertaining to the applicable implementation plan for the

area, and (2) the area has measured no more than one exceedance of the

CO NAAQS at any monitoring site in the nonattainment area in the year

preceding the extension year. If the area does not have the requisite

number of years of clean air quality data to show attainment and does

not apply or does not qualify for an attainment date extension, the

area will be reclassified as serious by operation of law.

Section 186(a)(4) of the CAA providing for the extension of

attainment dates for areas that meet the above minimum requirements has

been delegated to the Regional Administrators. This provision does not

dictate or compel that EPA grant extensions to such areas. In

exercising this discretionary authority for CO nonattainment areas, EPA

will examine the air quality planning progress made in the moderate

area. EPA will be disinclined to grant an attainment date extension

unless an area had, in substantial part, addressed its moderate CO

planning obligations. In order to determine whether the area has

substantially met these planning requirements, EPA will review the

area's application for the attainment date extension to determine

whether the area has: (1) adopted and substantially implemented control

measures to satisfy the requirement for the moderate CO nonattainment

area; and (2) that reasonable further progress is being met for the

area.

If the area cannot make a sufficient demonstration that it has

complied with the extension criteria stated above, and EPA determines

that the area has not made a timely demonstration of attainment of the

CO NAAQS, the area will be reclassified as serious by operation of law

pursuant to section 186(b)(2) of the Act. If an extension is granted,

EPA will again review the area's air quality data at the end of the

extension year to determine whether the area has attained the CO NAAQS.

[[Page 56899]]

II. Extension Request

On April 24, 1996, New Jersey submitted to EPA a request for a one-

year extension of the NYCMSA CO nonattainment area. New York and

Connecticut submitted letters to EPA on July 31, 1996 and June 27,

1996, respectively, concurring with New Jersey's request. The

nonattainment area is composed of a number of counties in New York, New

Jersey, and Connecticut. These counties include Bronx County, Kings

County, Nassau County, New York County, Queens County, Richmond County,

and Westchester County in New York, part of Fairfield County (all

cities and townships except Shelton City) and part of Litchfield County

(Bridgewater Town and New Milford Town) in Connecticut, Bergen County,

Essex County, Hudson County, Union County, and the Passaic County

municipalities of Clifton, Passaic and Patterson in New Jersey. As

required by the CAA, this request was based on air quality data from

the two years (1994 and 1995) prior to the December 31, 1995 attainment

date.

A. Air Quality Data

Pursuant to section 186(a)(4)(B) of the Act, an area must have no

more than one exceedance of the CO NAAQS in the year proceeding the

extension year at any one monitoring site in the nonattainment area.

The NYCMSA nonattainment area has one CO Special Purpose Monitoring

(SPM) site, five National Air Monitoring System Sites (NAMS), and nine

State and Local Air Monitoring Sites (SLAMS). Sampling at these sites

is conducted every day. Data from these sites was submitted by each of

the States in the CMSA for inclusion in EPA's air quality data system,

AIRS and was deemed valid by EPA.

A review of the data for calendar years 1994 and 1995 for the

NYCMSA CO nonattainment area shows violations of the eight hour NAAQS

occurred at two separate monitoring stations in 1994. As discussed

previously in this document, a violation is defined as more than one

exceedance of the NAAQS occurring at the same site during a calendar

year. Exceedances occurred at the monitoring site in North Bergen, NJ,

on February 19 (11.6 ppm), December 4 (10.7 ), and December 22 (10.1 ),

therefore, resulting in a violation of the NAAQS. In addition, on two

separate and non-overlapping eight hour periods on February 19 (12.0

ppm and 11.3 ppm), concentrations exceeded the NAAQS at the Elizabeth,

NJ monitoring site. Thus the CO standard was violated here also.

In 1995, the North Bergen, NJ monitoring site and the Flatbush

Avenue, NY monitoring site each recorded one exceedance. However, since

neither of these sites had two exceedances, there were no violations of

the CO NAAQS. Therefore, the area has met the air quality requirements

for a one year extension of the attainment date.

B. Compliance with Applicable SIP

Pursuant to section 186(a)(4)(A) of the Act, an area must

demonstrate that it has complied with all requirements and commitments

pertaining to the affected nonattainment area in the applicable

implementation plan. The States of New York, New Jersey, and

Connecticut are in compliance with the requirements and commitments of

each States' CO SIPs, (see 61 FR 38594, 61 FR 38591, and 61 FR 38574).

C. Substantial Implementation of Control Measures

The States of New York, New Jersey, and Connecticut have developed

and implemented substantial control measures for CO in the NYCMSA

nonattainment area. These control measures consist of the Federal

emission controls required for new vehicles, oxygenated fuels programs,

and inspection and maintenance (I/M) programs. The National Highway

System Designation Act of 1995 has given states additional time and

flexibility in the development of enhanced I/M programs. Therefore, New

York and New Jersey are currently amending their SIPs regarding their

enhanced I/M programs.

D. Emission Reduction Progress

The historical trend in the NYCMSA's air quality has been toward

lower CO levels. CO concentrations have decreased from a second-high

eight-hour average of 15.8 ppm and 186 exceedances in 1981, to a

second-high eight-hour average of 8.1 ppm and two exceedances (at

separate sites) in 1995. The continued improvement in CO concentrations

in the NYCMSA has been achieved mainly by emission reductions resulting

from turnover of the vehicle fleet, required vehicle repairs and

maintenance under the existing I/M programs, and the mandatory

wintertime use of oxygenated fuels. These control measures and emission

reductions are permanent and enforceable.

The enhancement of existing I/M programs and the continued

implementation of oxygenated fuels programs, combined with the Federal

Motor Vehicle Control Program is expected to result in further

decreases in CO emissions and ambient concentrations in the NYCMSA.

Based on the above, EPA believes that reasonable further progress (RFP)

toward attainment of the CO NAAQS has been demonstrated.

III. Summary

EPA is, by today's action, granting New Jersey's request for a one-

year extension of the CO attainment date for the NYCMSA. EPA had

received letters of concurrence on New Jersey's extension request from

New York and Connecticut. Although the CMSA area failed to meet the

December 31, 1995 CO attainment date, the CMSA has shown the progress

requisite to the extension authorized by section 186(a)(4) of the Act.

This action extends the attainment date from December 31, 1995, to

December 31, 1996 for the entire NYCMSA.

EPA has reviewed this request for a one-year extension of the CO

attainment date for the NYCMSA nonattainment area for conformance with

the CAA enacted on November 15, 1990. EPA has determined that this

action conforms with those requirements. EPA is publishing this action

without a prior proposal because the Agency views this as a

noncontroversial action and anticipates no adverse comments. However,

in a separate document in this Federal Register publication, EPA is

proposing to approve this attainment date extension should adverse or

critical comments be filed. This final action will be effective January

6, 1997, unless, by December 5, 1996, adverse or critical comments are

received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action before its effective date. All public

comments received will be addressed in a subsequent final rule based on

this action serving as a proposed rule. EPA will not institute a second

comment period on this action. Any parties interested in commenting on

this action should do so at this time. If no such comments are

received, the public is advised that this action will be effective

January 6, 1997.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP will be

considered separately in light of specific technical, economic and

environmental factors and in relation to relevant statutory and

regulatory requirements.

[[Page 56900]]

IV. Administrative Requirements

Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. See 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

Attainment date extensions under section 186, as with SIP approvals

under section 110 and subchapter I, part D of the Act, do not create

any new requirements. Therefore, because the granting of the NYCMSA

one-year CO attainment date extension does not impose any new

requirements, I certify that it does not have a significant impact on

any small entities. Moreover, due to the nature of the Federal-state

relationship under the Act, preparation of a regulatory flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The CAA forbids EPA to base its actions

concerning SIPs on such grounds. Union Electric Co. v. E.P.A., 427 U.S.

246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to the private sector, of $100 million or more. Under section 205,

EPA must select the most cost-effective and least burdensome

alternative that achieves the objectives of the rule and is consistent

with statutory requirements. Section 203 requires EPA to establish a

plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that an attainment date extension does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. A finding than an area should

be granted a one-year extension of the attainment date consists of

factual determinations based on air quality considerations and the

areas's compliance with certain prior requirements, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of this rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by January 6, 1997. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review nor does

it extend the time within which a petition for judicial review may be

filed and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements. See section 307(b)(2), 42 U.S.C. 7607(b)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Intergovernmental relations, Reporting and recordkeeping requirements.

Dated: October 15, 1996.

William J. Muszynski,

Deputy Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

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

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

Subpart H--Connecticut

2. Section 52.372 is added to read as follows:

Sec. 52.372 Extensions.

Pursuant to section 186(a)(4) of the Clean Air Act, as amended in

1990, the Regional Administrator hereby extend for one year (until

December 31, 1996) the attainment date for the New York-Northern New

Jersey-Long Island Consolidated Metropolitan Statistical Carbon

Monoxide nonattainment area.

Subpart FF--New Jersey

3. Section 52.1572 is added to read as follows:

Sec. 52.1572 Extensions.

Pursuant to section 186(a)(4) of the Clean Air Act, as amended in

1990, the Regional Administrator hereby extends for one year (until

December 31, 1996) the attainment date for the New York-Northern New

Jersey-Long Island Consolidated Metropolitan Statistical Carbon

Monoxide nonattainment area.

Subpart HH--New York

4. Section 52.1672 is added to read as follows:

Sec. 52.1672 Extensions.

Pursuant to section 186(a)(4) of the Clean Air Act, as amended in

1990, the Regional Administrator hereby extends for one year (until

December 31, 1996) the attainment date for the New York-Northern New

Jersey-Long Island Consolidated Metropolitan Statistical Carbon

Monoxide nonattainment area.

[FR Doc. 96-28197 Filed 11-4-96; 8:45 am]

BILLING CODE 6560-50-F