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[Federal Register: July 28, 1994]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[Region II Docket No. 132, SIPTRAX # NY14-1-6563, FRL-5022-5]

Clean Air Act Promulgation of Reclassification of Ozone Nonattainment Area; States of New Jersey and New York

AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to reclassify the Poughkeepsie ozone nonattainment area from a marginal nonattainment area to a moderate nonattainment area. This action also proposes a determination that the Allentown-Bethlehem-Easton, NJ-PA; Albany-Schenectady-Troy, NY; Buffalo-Niagara Falls, NY; Essex County, NY; and, Jefferson County, NY ozone nonattainment areas classified as marginal have attained the ozone air quality standard by the attainment date of November 15, 1993. These actions are based on monitored air quality readings for the national ambient air quality standard for ozone during the years 1991-1993.

DATES: Comments must be received on or before August 29, 1994.

ADDRESSES: All comments should be addressed to: Jeanne M. Fox, Regional Administrator, Environmental Protection Agency, Region II Office, 26 Federal Plaza, New York, NY, 10278.

Materials relevant to this rulemaking are located in Rm. M-1500, First Floor, Waterside Mall, 40l M Street SW., Washington, DC, and may be inspected at this location during the hours from 8:30 a.m. to 12 noon and from 1:30 p.m. to 3:30 p.m., Monday through Friday, except for legal holidays. A duplicate copy of the materials are located in the EPA Regional Office previously listed.

FOR FURTHER INFORMATION CONTACT: William S. Baker, Chief, Air Programs Branch, Environmental Protection Agency, Region II Office, 26 Federal Plaza, Room 1034A, New York, NY, 10278, (212) 264-2517.

SUPPLEMENTARY INFORMATION:

I. Background

A. Clean Air Act Requirements and EPA Actions Concerning Designation and Classification

Section 107(d)(4) of the Clean Air Act (the Act) required the States and EPA to designate areas as attainment, nonattainment, or unclassifiable for ozone as well as other pollutants for which national ambient air quality standards (NAAQS) have been set. Section 181(a)(1) (table 1) required that ozone nonattainment areas be classified as marginal, moderate, serious, severe, or extreme, depending on their air quality.

In a series of Federal Register (FR) notices, EPA completed this designation and classification process. The reader is referred to 56 FR 58694 (Nov. 6, 1991); 57 FR 56762 (Nov. 30, 1992); and, 59 FR 18967 (April 21, 1994), in which, EPA designated and classified all areas of the country for ozone.

Areas designated nonattainment for ozone are required to meet attainment dates specified under the Act. For areas classified marginal through extreme, the attainment dates range from November 15, 1993 through November 15, 2010. A discussion of the attainment dates is found in the General Preamble, 57 FR 13498 (April 16, 1992).

The Allentown-Bethlehem-Easton, NJ-PA; Albany-Schenectady-Troy, NY; Buffalo-Niagara Falls, NY; Essex County, NY; Jefferson County, NY; and, Poughkeepsie, NY areas were designated nonattainment and classified marginal for ozone pursuant to 56 FR 58694 (Nov. 6, 1991); 57 FR 56762 (Nov. 30, 1992); and, 59 FR 18967 (April 21, 1994). By this classification, their attainment date became November 15, 1993.

B. Act Requirements and EPA Actions Concerning Reclassification

Section 181(b)(2)(A) requires the Administrator, shortly after the attainment date, to determine whether ozone nonattainment areas attained the NAAQS. This provision states:

Within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by that date.

This provision further states that, for areas classified as marginal, moderate, or serious, if the Administrator determines that the area did not attain the standard by its attainment date, the area must be reclassified upwards:

Except for any Severe or Extreme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection (a) of this section to the higher of--

(i) the next higher classification for the area, or

(ii) the classification applicable to the area's design value as determined at the time of the notice required under subparagraph (B).

Finally, subparagraph (B) of Section 182(b)(2) mandates that the Administrator publish a notice in the Federal Register identifying each area that failed to attain the NAAQS.

As quoted previously, the determination of attainment status is based on the area's ``design value.'' EPA interprets this provision generally to refer to EPA's methodology for determining attainment status. See generally, H Comm. Rep. 101-490 pp. 197, 232 (1990) (House Energy and Commerce Committee Report).

For ozone, EPA determines attainment status on the basis of the expected number of exceedances of the NAAQS over the three-year period up to, and including, the attainment date. This procedure is described in 57 FR 13506 (April 16, 1992). Under these requirements, for marginal ozone nonattainment areas, EPA considers air quality during the years 1991-1993 to determine whether the area met its attainment date.

II. Summary of Proposed Action

EPA is proposing to determine that the Poughkeepsie nonattainment area failed to demonstrate attainment by its attainment date of November 15, 1993. The Poughkeepsie ozone nonattainment area is comprised of Dutchess County, northern Orange County and Putnam County, NY. As discussed in the accompanying technical support document, this determination is based on air quality monitors revealing exceedances of the ozone NAAQS during 1991-1993. The Poughkeepsie area recorded four exceedances of the NAAQS at a monitoring site in Millbrook, Dutchess County. Therefore, the average expected number of exceedances of the NAAQS over the three-year period is greater than 1.0. The ozone data measured at the Millbrook monitor during the 1991-1993 period indicates a design value of 0.126 parts per million and an average expected number of exceedances of 1.4. Therefore, the EPA is proposing to reclassify or bump-up the Poughkeepsie ozone nonattainment area from a marginal nonattainment area to a moderate nonattainment area.

It should be noted that on April 21, 1994 in 59 FR 18967, EPA made a final determination that portions of Orange County are included in the Poughkeepsie ozone nonattainment area. An opportunity for public comment on the designation of northern Orange County was given on November 30, 1992 in 57 FR 56762. As a result of this proposal to reclassify the Poughkeepsie nonattainment area, portions of Orange County would become moderate nonattainment along with Dutchess and Putnam Counties. EPA's final decision to include portions of Orange County in the Poughkeepsie ozone nonattainment area is not the subject of this proposal, and EPA is not soliciting comments on its final action in that regard.

This proposed rule fulfills EPA's obligations under Section 181(b)(2) to determine whether the Poughkeepsie area attained the ozone NAAQS by its attainment date, and to publish its determination in the Federal Register.

Under Section 182(i) of the Act, reclassifying this area as moderate means that the State will be required to submit State Implementation Plan (SIP) revisions appropriate for a moderate area under Section 182(b). Section 182(i) further provides that the deadlines provided under the requirements of Section 182(b) remain applicable to this area, except that the Administrator (or the Administrator's delegate) ``may adjust any applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.'' Accordingly, reclassification to moderate results in an attainment date for this area of November 15, 1996, under Section 181(a)(1) (table 1).

However, EPA is exercising its authority to adjust the SIP submission schedules for the moderate area controls. All SIP submissions required under Section 182(b) must be submitted by November 15, 1995. All required controls and emissions reductions must be implemented or achieved on a schedule that facilitates attainment by November 15, 1996 (the attainment date). This submittal date will assure consistency in SIP submittal schedules and afford the State sufficient time to prepare the submittals, while also assuring that the required controls may be implemented by the attainment date. EPA cautions that because the determination of whether the area attains the NAAQS by the end of 1996 must be based on air quality during the 1994- 1996 period, the sooner the moderate-area controls are implemented, the more likely the area will reach attainment by the end of 1996.

In addition, EPA is proposing a determination that the Allentown- Bethlehem-Easton, NJ-PA; Albany-Schenectady-Troy, NY; Buffalo-Niagara Falls, NY; Essex County, NY; and, Jefferson County, NY marginal nonattainment areas succeeded in demonstrating attainment by their attainment date of November 15, 1993. As discussed in the accompanying technical support document, this determination is based on ozone air quality data measured during the 1991-1993 period. These five marginal areas recorded none or only one exceedance of the standard at any one monitoring site in the area. Therefore, the average expected number of exceedances of the NAAQS over the three-year period, for these five areas, is less than 1.0.

Although EPA is proposing to determine that these areas have attained the ozone NAAQS, they will continue to carry the designation of nonattainment and the classification of marginal. They are eligible to be redesignated to attainment under Section 107(d)(3), if the criteria of that provision are met. A redesignation of an area to attainment must be a formal request by a state to EPA and include, among other things, a public hearing, all Section 110 and Part D requirements and a ten year maintenance plan. EPA must review a redesignation request and follow the usual procedures of a completeness review, a notice of proposed rulemaking and a final action after reviewing public comments.

Proposed Action

The EPA is proposing to reclassify the Poughkeepsie ozone nonattainment area from a marginal nonattainment area to a moderate nonattainment area. This action also proposes a determination that the Allentown-Bethlehem-Easton, NJ-PA; Albany-Schenectady-Troy, NY; Buffalo-Niagara Falls, NY; Essex County, NY; and, Jefferson County, NY ozone nonattainment areas classified as marginal have attained the ozone air quality standard by the attainment date of November 15, 1993. These actions are based on measured ozone air quality levels during the years 1991-1993.

Nothing in this proposed rule 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 shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

The Office of Management and Budget has exempted this action from review Under Executive Order 12866.

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 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.

Reclassification of nonattainment areas under Section 181 of the Act do not create any new requirements. Therefore, because the federal SIP approval does not impose any new requirements, I certify that it does not have a significant impact on small entities. Moveover, due to the nature of the federal-state relationship under the Clean Air Act, preparation of a regulatory flexibility analysis would constitute federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v US EPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

List of Subjects in 40 CFR Part 81

Air pollution control, National parks, Wilderness areas.

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

Dated: July 14, 1994.

Carol M. Browner, Administrator.

[FR Doc. 94-18451 Filed 7-27-94; 8:45 am]

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