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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

Determination of Attainment of the One-Hour Ozone Standard for

the Poughkeepsie, New York Ozone Nonattainment Area and Determination

Regarding Applicability of Certain Reasonable Further Progress and

Attainment Demonstration Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is determining, through direct final procedure, that

the Poughkeepsie moderate ozone nonattainment area in New York has

attained the one-hour National Ambient Air Quality Standard (NAAQS) for

ozone. This determination is based upon three years of complete,

quality assured ambient air monitoring data for the years 1995-97. This

data demonstrates that the one-hour ozone NAAQS has been attained in

this area. On the basis of this determination, EPA is also determining

that certain reasonable further progress and attainment demonstration

requirements, along with certain other related requirements, of Part D

of Title 1 of the Clean Air Act are not applicable to this area.

In the proposed rules section of this Federal Register, EPA is

proposing this determination and soliciting public comment on it. If

adverse comments are received on this direct final rule, EPA will

withdraw this final rule and address these comments in a final rule on

the related proposed rule which is being published in the proposed

rules section of this Federal Register.

DATES: This action will be effective Febraury 5, 1998 unless adverse or

critical comments are received by January 21, 1998. If the effective

date is delayed, a timely document will be published in the Federal

Register.

ADDRESSES: Written comments should be mailed to Ronald Borsellino,

Chief, Air Programs Branch, Environmental Protection Agency, Region 2,

290 Broadway, New York, NY 10007-1866. Copies of the relevant material

for this notice are available for inspection during normal business

hours at: Environmental Protection Agency, Region 2 Office, Air

Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-

1866.

FOR FURTHER INFORMATION CONTACT: Robert F. Kelly, Air Programs Branch,

Environmental Protection Agency, Region 2, at the above address. Phone:

212-637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

Subpart 2 of Part D of Title I of the Clean Air Act (CAA) contains

various air quality planning and state implementation plan (SIP)

submission requirements for ozone nonattainment areas. EPA has

interpreted provisions regarding reasonable further progress (RFP) and

attainment demonstrations, along with certain other related provisions,

so as not to require SIP submissions if an ozone nonattainment area

subject to those requirements is monitoring attainment of the one-hour

ozone standard (i.e., attainment of the NAAQS is demonstrated with

three consecutive years of complete, quality assured air quality

monitoring data). As described below, EPA has previously interpreted

the general provisions of subpart 1 of part D of Title I (sections 171

and 172) so as not to require the submission of SIP revisions

concerning RFP, attainment demonstrations, or contingency measures. As

explained in a memorandum dated May 10, 1995 from John Seitz to the

Regional Air Division Directors, entitled ``Reasonable Further

Progress, Attainment Demonstration, and Related Requirements for Ozone

Nonattainment Areas Meeting the Ozone National Ambient Air Quality

Standard,'' EPA has interpreted the more specific RFP, attainment

demonstration and related provisions of subpart 2 in the same manner.

First, with respect to RFP, section 171(1) states that, for

purposes of part D of Title I, RFP ``means such annual incremental

reductions in emissions of the relevant air pollutant as are required

by this part or may reasonably be required by the Administrator for the

purpose of ensuring attainment of the applicable national ambient air

quality standard by the applicable date.'' Thus, whether dealing with

the general RFP requirement of section 172(c)(2), or the more specific

RFP requirements of subpart 2 for classified ozone nonattainment areas

(such as the 15 percent plan requirement of section 182(b)(1)), the

stated purpose of RFP is

[[Page 66823]]

to ensure attainment by the applicable attainment date.1 If

an area has in fact attained the one-hour standard, the stated purpose

of the RFP requirement will have already been fulfilled and EPA does

not believe that the area needs to submit revisions providing for the

further emission reductions described in the RFP provisions of section

182(b)(1).

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\1\ EPA notes that paragraph (1) of subsection 182(b) is

entitled ``PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS'' and

that subparagraph (B) of paragraph 182(c)(2) is entitled

``REASONABLE FURTHER PROGRESS DEMONSTRATION,'' thereby making it

clear that both the 15 percent plan requirement of section 182(b)(1)

and the 3 percent per year requirement of section 182(c)(2) are

specific varieties of RFP requirements.

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EPA notes that it took this view with respect to the general RFP

requirement of section 172(c)(2) in the General Preamble for the

Interpretation of Title I of the Clean Air Act Amendments of 1990 (57

FR 13498, April 16, 1992), and it is now extending that interpretation

to the specific provisions of subpart 2. In the General Preamble, EPA

stated, in the context of a discussion of the requirements applicable

to the evaluation of requests to redesignate nonattainment areas to

attainment, that the ``requirements for RFP will not apply in

evaluating a request for redesignation to attainment since, at a

minimum, the air quality data for the area must show that the area has

already attained. Showing that the State will make RFP towards

attainment will, therefore, have no meaning at that point.'' (57 FR at

13564.) 2

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\2\ See also ``Procedures for Processing Requests to Redesignate

Areas to Attainment,'' from John Calcagni, Director, Air Quality

Management Division, to Regional Air Division Directors, September

4, 1992, at page 6 (stating that the ``requirements for reasonable

further progress * * * will not apply for redesignations because

they only have meaning for areas not attaining the standard'')

(hereinafter referred to as ``September 1992 Calcagni memorandum'').

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Second, with respect to the attainment demonstration requirements

of section 182(b)(1) an analogous rationale leads to the same result.

Section 182(b)(1) requires that the plan provide for ``such specific

annual reductions in emissions * * * as necessary to attain the

national primary ambient air quality standard by the attainment date

applicable under this Act.'' As with the RFP requirements, if an area

has in fact monitored attainment of the one-hour standard, EPA believes

there is no need for an area to make a further submission containing

additional measures to achieve attainment of the one-hour standard.

This is also consistent with the interpretation of certain section

172(c) requirements provided by EPA in the General Preamble to Title I,

as EPA stated there that no other measures to provide for attainment

would be needed by areas seeking redesignation to attainment since

``attainment will have been reached.'' (57 FR at 13564; see also

September 1992 Calcagni memorandum at page 6.) Upon attainment of the

NAAQS, the focus of state planning efforts shifts to the maintenance of

the NAAQS and the development of a maintenance plan under section 175A.

Similar reasoning applies to the contingency measure requirements

of section 172(c)(9). EPA has previously interpreted the contingency

measure requirement of section 172(c)(9) as no longer being applicable

once an area has attained the one-hour standard since those

``contingency measures are directed at ensuring RFP and attainment by

the applicable date.'' (57 FR at 13564; see also September 1992

Calcagni memorandum at page 6.) As the section 172(c)(9) contingency

measures are linked with the RFP requirements of section 182(b)(1), the

requirement no longer applies once an area has attained the one-hour

standard.

This action is only a suspension of the requirements to submit the

SIP revisions discussed above. If the area were to violate the one-hour

ozone NAAQS, the basis for the determination that the area need not

make the pertinent SIP revisions would no longer exist. The EPA would

notify the state of that determination and would also provide

notification to the public in the Federal Register. Such a

determination would mean that the area would have to address the

pertinent SIP requirements within a period of time, which EPA would

establish taking into account the individual circumstances surrounding

the particular SIP submissions at issue.

However, EPA recently promulgated a new eight-hour ozone standard.

The President's Directive of July 16, 1997 outlines how EPA will make

the transition from the old one-hour standard to the new SIP

requirements for the eight-hour standard. The Directive states that EPA

will revoke the one-hour standard once an area has air monitoring data

showing attainment of the one-hour standard. If EPA revokes the one-

hour standard for an area, the requirement for the area to submit RFP

requirements and an attainment demonstration for the one-hour standard

will be permanently ended.

The state must continue to operate an appropriate air quality

monitoring network, in accordance with 40 CFR part 58, to verify the

attainment status of the area. The air quality data relied upon to

determine that the area is attaining the ozone standard must be

consistent with 40 CFR part 58 requirements and other relevant EPA

guidance and recorded in EPA's Aerometric Information Retrieval System

(AIRS).

The determination that is being made with this Federal Register

document that air quality data shows attainment of the one-hour

standard is not equivalent to the redesignation of the area to

attainment. Using monitoring data to show attainment of the ozone NAAQS

is only one of the criteria set forth in section 107(d)(3)(E) that must

be satisfied for an area to be redesignated to attainment. To be

redesignated the state must submit and receive full approval of a

redesignation request for the area that satisfies all of the criteria

of that section, including the requirement of a demonstration that the

improvement in the area's air quality is due to permanent and

enforceable reductions and the requirements that the area have a fully-

approved SIP meeting all of the applicable requirements under section

110 and Part D and a fully-approved maintenance plan.

Furthermore, the determination made in this notice does not shield

an area from future EPA action. EPA can require emissions reductions

from sources in the area where there is evidence, such as photochemical

grid modeling, showing that emissions from sources in the area

contribute significantly to nonattainment in, or interfere with

maintenance by, other nonattainment areas. EPA has authority under

section 110(a)(2) to require such emission reductions if necessary and

appropriate to deal with transport situations. Also, EPA can require

SIPs from this area if EPA or the state proposes, in future actions,

that the area is in violation of the eight-hour standard.

II. Analysis of Air Quality Data

On November 17, 1997, New York requested that EPA find that air

monitoring data from New York State for the Poughkeepsie ozone

nonattainment area shows that the area is attaining the one-hour ozone

standard. New York State, also on November 17, 1997, submitted quality

assured data (consistent with the requirements contained in 40 CFR part

58 and recorded in AIRS) through the end of the 1997 ozone season and

certified that these data met EPA's requirements. The EPA has reviewed

the ambient air monitoring data for ozone from 1995 through 1997 for

the Poughkeepsie ozone nonattainment area, which includes Dutchess,

Putnam and northern Orange Counties in New York. The data were taken

from the

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EPA-approved New York State air quality monitoring network. It should

be noted that New York expanded air monitoring in the Poughkeepsie area

from one to three monitors during the 1990s. The monitors in these

locations were sited to measure ozone concentrations typical of

concentrations across the area. New York did this to better define the

extent of ozone nonattainment in the area. Expanding the network

increased the opportunity for finding violations of the ozone standard

in the Poughkeepsie area. EPA believes that these data are

representative of the Poughkeepsie ozone nonattainment area. This is

especially true since ozone is not emitted directly from sources, but

is formed from pollutants that react in sunshine over a period of time.

The ozone air quality data for the Poughkeepsie ozone nonattainment

area, summarized in Table I, shows that the area has met the one-hour

NAAQS.

Table I.--Exceedances of the One-hour Ozone Standard for Monitoring Sites in the Poughkeepsie Ozone

Nonattainment Area

[From EPA AIRS]

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Number of exceedances

(in parentheses) Number Total number Average number

of expected exceedances of expected of expected Attainment status

Site in bold exceedances exceedances 1995-7

--------------------------- 1995-7 1995-7

1995 1996 1997

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Millbrook........................ (0) (0) (0) 0.0 0.0 Attain.

0.0 0.0 0.0 .............. .............. ..................

Mt. Ninham....................... (2) (1) (0) 3.1 1.0 Attain.

2.0 1.1 0.0 .............. .............. ..................

Valley Central................... (0) (1) (0) 1.0 0.3 Attain.

0.0 1.0 0.0 .............. .............. ..................

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Note: Expected exceedances are calculated from the actual number of exceedances ( ), adjusted for missing data

as required by Appendix H. The 0.12 ppm one-hour average ozone standard is attained when the three year

average of expected exceedances is 1.0 or less. The expected and average number of exceedances are rounded to

the nearest tenth. [See CFR Part 51, Appendix H.]

As noted in Table I, attainment of the one-hour ozone standard is

achieved when an area's monitoring sites have 1.0 or less exceedances

per year, averaged over a three year period from 1995 through 1997.

Since all of the monitors in the Poughkeepsie ozone nonattainment area

average 1.0 or less exceedances per year, the Poughkeepsie area is

attaining the one-hour NAAQS for ozone. Attaining the ozone standard

would relieve New York from submitting a reasonable further progress

plan whose purpose was to bring the area into attainment. Likewise, New

York would not have to submit an attainment demonstration since the

area has attained the one-hour ozone standard.

III. Final Action

EPA determines that the Poughkeepsie ozone nonattainment area has

attained the one-hour ozone standard based on three years of quality-

assured monitoring data at all three sites in the area. As a

consequence of EPA's determination that the Poughkeepsie area has

attained the one-hour ozone standard, the requirements of section

182(b)(1) concerning the submission of the 15 percent plan and ozone

attainment demonstration and the requirements of section 172(c)(9)

concerning contingency measures shall not be applicable to the area.

This is effective as long as the area continues to attain the one-hour

ozone standard, or until EPA revokes the one-hour standard.

EPA emphasizes that as long as the one-hour standard applies to the

Poughkeepsie area, these determinations are contingent upon the

continued monitoring and continued attainment and maintenance of the

one-hour ozone NAAQS in this affected area. If while the one-hour

standard is still in effect, a violation of the one-hour ozone NAAQS is

monitored in the Poughkeepsie area (consistent with the requirements

contained in 40 CFR part 58 and recorded in AIRS), EPA will provide

notice to the public in the Federal Register. Then EPA would reinstate

the requirements of section 182(b)(1) and section 172(c)(9) for the

Poughkeepsie area since the basis for the determination that they are

not needed would not exist.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial action and anticipates no

adverse comments. EPA is strictly acting on the basis of real data,

without modification or interpretation that impels EPA to make the

determination in this document. However, in a separate document in this

Federal Register publication, the EPA is proposing to approve this

action in case adverse or critical comments be filed. This action will

be effective February 5, 1998 unless, by January 21, 1998, adverse or

critical comments are received.

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

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective February 5, 1998.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revisions to any SIP. Each request for revision of the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

IV. Administrative Requirements

Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

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

must prepare a regulatory flexibility analysis assessing the impact of

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

Alternatively, EPA may certify

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that the rule will not have a significant impact on a substantial

number of small entities. Small entities include small businesses,

small not-for-profit enterprises, and government entities with

jurisdiction over populations of less than 50,000.

This action removes a requirement that the Clean Air Act required

the State to address. Therefore, because this action does not impose

any new requirements, I certify that it does not have an impact on any

small entities.

Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

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

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

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

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that this action does not include a federal

mandate that may result in estimated annual costs of $100 million or

more to either State, local, or tribal governments in the aggregate, or

to the private sector. This federal action imposes no new requirements,

and accordingly, no additional costs to State, local, or tribal

governments, or to the private sector, result from this action.

Submission to Congress and the General Accounting Office

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

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

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

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

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

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

U.S.C. section 804(2).

Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by February 20, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Nitrogen oxides,

Ozone, Volatile organic compounds, Intergovernmental relations,

Reporting and recordkeeping requirements.

Dated: December 4, 1997.

William J. Muszynski,

Acting Regional Administrator, Region 2.

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

amended as follows:

PART 52--[AMENDED]

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

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

Subpart HH--New York

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

as follows:

52.1683 Control strategy: Ozone.

* * * * *

(f) Attainment Determination--EPA has determined that, as of

February 5, 1998, the Poughkeepsie ozone nonattainment area (consisting

of Dutchess and Putnam Counties and northern Orange County) has air

monitoring data that attains the one-hour ozone standard and that the

requirements of section 182(b)(1) (reasonable further progress and

attainment demonstration) and related requirements of section 172(c)(9)

(contingency measures) of the Clean Air Act do not apply to the area.

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

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