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Proposed Rule

Approval and Promulgation of Air Quality Implementation Plans; Connecticut; Determinations of Attainment of the One-Hour Ozone Standard

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Start Preamble Start Printed Page 72377

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The EPA is proposing to determine that the Greater Connecticut serious one-hour ozone nonattainment area did not meet the applicable deadline of November 15, 2007, for attaining the one-hour National Ambient Air Quality Standard (NAAQS) for ozone. This proposed determination is based upon complete, quality-assured, certified ambient air monitoring data that show the area had an expected ozone exceedance rate above the level of the now revoked one-hour ozone NAAQS for the 2005-2007 monitoring period. Separate from and independent of this proposed determination, EPA is also proposing to determine that the Greater Connecticut serious one-hour ozone nonattainment area currently attains the now revoked one-hour NAAQS for ozone, based upon complete, quality-assured, certified ambient air monitoring data for 2008-2010. The area first attained the one-hour NAAQS during the 2006-2008 monitoring period, and continued in attainment during the 2007-2009, and 2008-2010 monitoring periods. Preliminary data available for 2011 also show the area continues to meet the one-hour NAAQS for ozone. EPA is proposing these determinations under the Clean Air Act.

DATES:

Written comments must be received on or before December 23, 2011.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R01-OAR-2011-0711 by one of the following methods:

1. http://www.regulations.gov: Follow the online instructions for submitting comments.

2. Email: arnold.anne@epa.gov.

3. Fax: (617) 918-0047.

4. Mail: “Docket Identification Number EPA-R01-OAR-2011-0711, ” Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100 (mail code: OEP05-2), Boston, MA 02109-3912.

5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, Manager, Air Quality Planning Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-3912. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-2011-0711. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov, or email, information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, Boston, MA. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Richard P. Burkhart, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-3912, telephone number (617) 918-1664, fax number (617) 918-0664, email Burkhart.Richard@epa.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble:

I. What is EPA proposing?

A. Proposed Determination of Failure to Attain by Applicable Attainment Date

B. Proposed Determination of Current Attainment

II. What is the background for these proposed actions?

A. Statutory and Regulatory Background

B. Basis and Effect of Proposed Determinations

III. What is EPA's analysis of data for purposes of determining attainment of the one-hour ozone standard?

A. How does EPA compute whether an area meets the one-hour ozone standard?

B. EPA's Analysis of the One-Hour Ozone Data for the Greater Connecticut Area

IV. Proposed Determinations

V. Statutory and Executive Order Reviews

I. What is EPA proposing?

EPA is proposing two separate and independent actions for the Greater Connecticut one-hour ozone serious nonattainment area (hereafter, “the Greater Connecticut area”).

A. Proposed Determination of Failure to Attain by Applicable Attainment Date

EPA is proposing to determine that the Greater Connecticut area did not attain the one-hour ozone NAAQS by the applicable attainment date, November 15, 2007. This proposed determination is based upon complete, quality-assured and certified air quality monitoring data for the 2005 through 2007 ozone seasons.

B. Proposed Determination of Current Attainment

In addition, EPA is proposing to determine that the Greater Connecticut area is currently attaining the one-hour Start Printed Page 72378ozone NAAQS based upon complete, quality-assured and certified ambient air monitoring data showing the area currently monitors monitored attainment of the one-hour ozone NAAQS, and that it has done so continuously since the 2006-2008 monitoring period. If this proposed determination is finalized, any obligations related to one-hour ozone contingency measures in the Greater Connecticut area shall be suspended for so long as the area continues to attain the one-hour ozone NAAQS.

II. What is the background for these proposed actions?

A. Statutory and Regulatory Background

EPA designated the Greater Connecticut area as nonattainment for one-hour ozone following the enactment of the Clean Air Act (CAA) Amendments of 1990. Most areas of the country that EPA designated nonattainment for the one-hour ozone NAAQS were classified by operation of law as marginal, moderate, serious, severe, or extreme, depending on the severity of the area's air quality problem. See CAA sections 107(d)(1)(C) and 181(a). The Greater Connecticut area was classified as serious. The one-hour ozone attainment deadline for the Greater Connecticut serious area was initially set for November 15, 1999, and later extended to November 15, 2007 based on EPA's Attainment Date Extension Policy. See 66 FR 634, January 3, 2001. The Greater Connecticut one-hour ozone nonattainment area consists of most of Connecticut, with the following exceptions: Bridgetown and New Milford in Litchfield County are excluded. Also, Fairfield County is excluded, save the City of Sheldon. See 40 CFR 81.307. The entire state was designated nonattainment for the one-hour standard, and divided into two nonattainment areas: Greater Connecticut and the Connecticut portion of the New York City area.

On July 18, 1997 (62 FR 38856), EPA promulgated a new, standard for ozone based on an 8-hour average concentration (the “1997 8-hour ozone NAAQS”). EPA designated and classified most areas of the country under the eight-hour ozone NAAQS in an April 30, 2004 final rule. See 69 FR 23858. EPA designated Greater Connecticut as nonattainment for the 1997 8-hour ozone NAAQS, and at the time of designation the area did not meet the one-hour ozone standard. Again, the entire state was designated nonattainment for the 8-hour NAAQS, and divided into two nonattainment areas, with the same names as the one-hour areas, but with slightly different boundaries than the two one-hour areas. See 40 CFR 81.307.

On April 30, 2004, EPA issued a final rule (69 FR 23951) entitled “Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 1,” referred to as the Phase 1 Rule. Among other matters, this rule revoked the one-hour ozone NAAQS in most areas of the country, effective June 15, 2005. See 40 CFR 50.9(b); 69 FR at 23996; and 70 FR 44470. The Phase 1 Rule also set forth how anti-backsliding principles will ensure continued progress toward attainment of the eight-hour ozone NAAQS by identifying which one-hour requirements remain applicable in an area after revocation of the one-hour ozone NAAQS. Although, EPA revoked the one-hour ozone standard (effective June 15, 2005), eight-hour ozone nonattainment areas remain subject to certain one-hour, anti-backsliding requirements based on their one-hour ozone classification. Initially, in our rules to address the transition from the one-hour to the eight-hour ozone standard, EPA did not include one-hour contingency measures among the measures retained as one-hour ozone anti-backsliding requirements.[1] However, on December 23, 2006, the United States Court of Appeals for the District of Columbia Circuit determined that EPA should not have excluded these requirements (and certain others not relevant here) from its anti-backsliding requirements. See South Coast Air Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006), rehearing denied 489 F.3d 1245 (clarifying that the vacatur was limited to the issues on which the court granted the petitions for review. Thus, the Court vacated the provisions that excluded these requirements. As a result, States must continue to meet the obligations for one-hour ozone NAAQS contingency measures and, EPA has issued a proposed rule, that would remove the vacated provisions of 40 CFR 51.905(e), and addresses contingency measures for failure to attain, or make reasonable further progress toward attainment, for the one-hour standard. See 74 FR 2936, January 16, 2009 (proposed rule); and 74 FR 7027, February 12, 2009 (notice of public hearing and extension of comment period).

B. Basis and Effect of Proposed Determinations

After revocation of the one-hour ozone standard, EPA must continue to provide a mechanism to give effect to the one-hour anti-backsliding requirements. See SCAQMD v. EPA, 47 F.3d 882, at 903. In keeping with this responsibility with respect to specific one-hour anti-backsliding measures, such as contingency measures, EPA proposes to determine that Greater Connecticut failed to attain the one-hour ozone standard by its applicable attainment date. Consistent with 40 CFR 51.905(e)(2), and the South Coast decision, upon revocation of the one-hour ozone NAAQS for an area, EPA is no longer obligated to determine whether an area has attained the one-hour NAAQS, except insofar as it relates to effectuating the anti-backsliding requirements that are specifically retained. EPA's determination here is linked solely to required, one-hour, anti-backsliding, contingency measures. A final determination of failure to attain will not result in reclassification of the area under the revoked one-hour standard, nor is EPA identifying or determining any new one-hour reclassification for the area. EPA is no longer required to reclassify an area to a higher classification for the one-hour ozone NAAQS based upon a determination that the area failed to attain that NAAQS by its attainment date. See 40 CFR 51.905(e)(2)(i)(B). Thus, even if we finalize our proposed determination that the area failed to attain the one-hour ozone NAAQS by its attainment deadline, the area will not be reclassified to a higher classification. Moreover, EPA has previously approved the attainment demonstration and Reasonable Further Progress (ROP) plans for this area, and in doing so noted that although there were no state implementation plan contingency measure reductions applicable to the Greater Connecticut area for failure to attain, there were federal measures the state had not accounted for in its attainment demonstration that provided more reductions than necessary to serve the purpose of contingency measures for this area. See 66 FR 634, January 3, 2001. In addition, EPA is proposing to determine that the Greater Connecticut area has attained the one-hour ozone standard since 2008. In this context, even if EPA's proposed determination that the area did not attain the standard in 2007 deadline is finalized, it will not trigger any additional obligations for the area under the one-hour ozone standard. Under EPA's “Clean Data Policy” interpretation, which was first Start Printed Page 72379articulated for the one-hour standard and then codified for the 8-hour ozone standard (40 CFR 51.918),[2] a determination of attainment suspends obligations for attainment-related requirements for that standard, including contingency measures. See, for example, determination of one-hour ozone attainment for Baton Rouge, 75 FR 6570 (February 10, 2010).

III. What is EPA's analysis of data for purposes of determining attainment of the one-hour ozone standard?

A. How does EPA compute whether an area meets the one-hour ozone standard?

Although the one-hour ozone NAAQS as promulgated in 40 CFR 50.9 includes no discussion of specific data handling conventions, EPA's publicly articulated position and the approach long since universally adopted by the air quality management community is that the interpretation of the one-hour ozone standard requires rounding ambient air quality data consistent with the stated level of the standard, which is 0.12 parts per million (ppm). 40 CFR 50.9(a) states that: “The level of the national one-hour primary and secondary ambient air quality standards for ozone * * * is 0.12 parts per million. * * * The standard is attained when the expected number of days per calendar year with maximum hourly average concentrations of 0.12 parts per million * * * is equal to or less than 1, as determined by appendix H to this part.” Thus, compliance with the NAAQS is based on comparison of air quality concentrations with the standard and on how many days that standard has been exceeded, adjusted for the number of missing days.

For comparison with the NAAQS, EPA has clearly communicated the data handling conventions for the one-hour ozone NAAQS in guidance documents. As early as 1979, EPA issued guidance stating that the level of our NAAQS dictates the number of significant figures to be used in determining whether the standard was exceeded. The stated level of the standard is taken as defining the number of significant figures to be used in comparisons with the standard. For example, a standard level of 0.12 ppm means that measurements are to be rounded to two decimal places (0.005 rounds up), and, therefore, 0.125 ppm is the smallest concentration value in excess of the level of the standard. See “Guideline for the Interpretation of Ozone Air Quality Standards,” EPA-450/4-79-003, OAQPS No. 1.2-108, January 1979. EPA has consistently applied the rounding convention in this 1979 guideline. See 68 FR 19111, April 17, 2003, 68 FR 62043, October 31, 2003, and 69 FR 21719, April 22, 2004. Then, EPA determines attainment status under the one-hour ozone NAAQS on the basis of the annual average number of expected exceedances of the NAAQS over a three-year period. See 60 FR 3349, January 17, 1995 and also the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” at 57 FR 13506 April 16, 1992 (“General Preamble”). EPA's determination is based upon data that have been collected and quality-assured in accordance with 40 CFR 58, and recorded in EPA's Air Quality System (AQS) database. To account for missing data, the procedures found in appendix H to 40 CFR part 50 are used to adjust the actual number of monitored exceedances of the standard to yield the annual number of expected exceedances (“expected exceedance days”) at an air quality monitoring site. We determine if an area meets the one-hour ozone NAAQS by calculating, at each monitor, the average expected number of days over the standard per year (i.e., “average number of expected exceedance days”) during the applicable 3-year period. See the General Preamble, 57 FR 13498, April 16, 1992. The term “exceedance” is used throughout this document to describe a daily maximum ozone measurement that is equal to or exceeds 0.125 ppm which is the level of the standard after rounding. An area violates the ozone standard if, over a consecutive 3-year period, more than 3 days of expected exceedances occur at the same monitor. For more information please refer to 40 CFR 50.9, “National one-hour primary and secondary ambient air quality standards for ozone” and “Interpretation of the one-hour Primary and Secondary National Ambient Air Quality Standards for Ozone” (40 CFR part 50, appendix H).

B. EPA's Analysis of the One-Hour Ozone Data for the Greater Connecticut Area

The following tables show one-hour ozone data for the Greater Connecticut area for each of the three-year periods 2005-2007 (Table 1), 2006-2008 (Table 2), 2007-2009 (Table 3), and 2008-2010 (Table 4). In short, if the three-year average expected exceedances rate, shown in the far right column, is less than or equal to 1.0, the site meets the one-hour ozone NAAQS. If all sites in the area meet the one-hour ozone standard, then the area met the one-hour NAAQS during that time period.

Table 1—Average Expected Exceedance Rate for the One-Hour Ozone Standard in the Greater Connecticut Area for 2005-2007

EPA AQS IDSiteYearActual exceedance days over 0.124 ppmAdjusted exceedance days for missing data3-year average expected exceedance rate
090050006Cornwall200511.00.7
200600.0
200711.0
090031003East Hartford200533.12.0
200611.0
200722.0
090110008Groton200500.00.0
200600.0
200700.0
090110124Groton 320050.0
2006
Start Printed Page 72380
200700.0
090131001Stafford200511.01.0
200611.0
200711.0
090070007Middletown200533.01.7
200611.0
200711.0
090090027New Haven200511.00.7
200600.0
200711.0
090093002Madison200533.11.4
200611.0
200700.0

Table 2—Average Expected Exceedance Rate for the One-Hour Ozone Standard in the Greater Connecticut Area for 2006-2008

EPA AQS IDSiteYearActual exceedance days over 0.124 ppmAdjusted exceedance days for missing data3-year average expected exceedance rate
090050006Cornwall200600.00.3
200711.0
200800.0
090031003East Hartford200611.01.0
200722.0
200800.0
090110124Groton 4200600.00.0
200700.0
200800.0
090131001Stafford200611.01.0
200711.0
200811.0
090070007Middletown200611.01.0
200711.0
200811.0
090090027New Haven200600.00.3
200711.0
200800.0
090093002Madison200611.00.7
200700.0
200811.0

Table 3—Average Expected Exceedance Rate for the One-Hour Ozone Standard in the Greater Connecticut Area for 2007-2009

EPA AQS IDSiteYearActual exceedance days over 0.124 ppmAdjusted exceedance days for missing data3-year average expected exceedance rate
090050006Cornwall200711.00.3
Start Printed Page 72381
200800.0
200900.0
090031003East Hartford200722.00.7
200800.0
200900.0
090110124Groton200700.00.0
200800.0
200900.0
090131001Stafford200711.00.7
200811.0
200900.0
090070007Middletown200711.00.7
200811.0
200900.0
090090027New Haven200711.00.3
200800.0
200900.0
090093002Madison200700.00.3
200811.0
200900.0

Table 4—Average Expected Exceedance Rate for the One-Hour Ozone Standard in the Greater Connecticut Area for 2008-2010

EPA AQS IDSiteYearActual exceedance days over 0.124 ppmAdjusted exceedance days for missing data3-year average expected exceedance rate
090050006Cornwall200800.00.0
200900.0
201000.0
090031003East Hartford200800.00.0
200900.0
201000.0
090110124Groton200800.00.0
200900.0
201000.0
090131001Stafford200811.00.3
200900.0
201000.0
090070007Middletown200811.00.3
200900.0
201000.0
090090027New Haven200800.00.0
200900.0
201000.0
090093002Madison200811.00.3
200900.0
201000.0

EPA has reviewed and evaluated these data in order to make two separate proposed determinations. First, EPA addresses whether the Greater Connecticut area attained the one-hour ozone standard by the applicable one-hour attainment date. As shown in Table 1, the Greater Connecticut one-hour ozone nonattainment area did not meet its attainment deadline of November 15, 2007, since three ozone monitors had expected exceedances rates above 1.0. In addition, the East Hartford ozone monitor recorded two exceedances of the now revoked one-hour ozone standard in 2007. Two exceedances at one monitor prevented Connecticut from requesting a one-year extension of the attainment date for the Greater Connecticut area. See CAA Section 181(a)(5).

Tables 2, 3 and 4, however, show the area subsequently met the one-hour ozone standard based on 2006-2008 ozone data (see Table 2) and continues to meet the one-hour standard based on complete, quality-assured data for subsequent time periods (see Tables 3 and 4). Preliminary ozone data available for 2011 also show that currently the area continues in attainment of the one-hour ozone standard. Thus, EPA is Start Printed Page 72382proposing to determine that based on the most recent three years of complete quality-assured ozone monitoring data, the Greater Connecticut area is currently attaining the NAAQS.

IV. Proposed Determinations

For the reasons set forth in this notice, EPA is proposing to determine that the Greater Connecticut one-hour ozone nonattainment area did not meet its applicable one-hour ozone attainment date of November 15, 2007, based on 2005-2007 quality-assured ozone monitoring data.[5] Separate from and independent of this proposed determination, EPA is also proposing to determine that the Greater Connecticut one-hour ozone nonattainment area is currently attaining the one-hour ozone standard, based on the most recent three years (2008-2010) of complete, quality-assured ozone monitoring data at all monitoring sites in the area. EPA's review of the data shows that the area began attaining the one-hour ozone standard in the 2006-2008 period, and has continued through 2007-2009 and 2008-2010. Preliminary data available for 2011 indicate that the area continues to attain the one-hour NAAQS.

EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the ADDRESSES section of this Federal Register.

V. Statutory and Executive Order Reviews

This action proposes to make determinations of attainment based on monitored air quality data and does not impose additional requirements beyond those imposed by state law. For that reason, these proposed actions:

  • Are not “significant regulatory actions” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
  • Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
  • Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
  • Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
  • Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
  • Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
  • Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
  • Are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
  • Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, these actions do not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

Start List of Subjects

List of Subjects in 40 CFR Part 52

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Authority: 42 U.S.C. 7401 et seq.

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Dated: November 14, 2011.

H. Curtis Spalding,

Regional Administrator, EPA New England.

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Footnotes

1.  Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 1, 69 FR 23951 (April 30, 2004).

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2.  The U.S. Court of Appeals for the District of Columbia Circuit upheld the provisions of 40 CFR 51.918, which codified the Clean Data Policy. Previously Courts of Appeals for several other Circuits upheld the Clean Data Policy under the one-hour standard. See NRDC v. EPA, 571 F.3d 1245 (DC Cir. 2009); Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004) and Our Children's EarthFoundation v. EPA, No. 04-73032 (9th Cir. June 28, 2005) (memorandum opinion).

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3.  Site moved in 2007. Ozone was monitored at both locations in 2007, and the data collected are comparable.

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4.  AQS Number 090110008 before 2007.

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5.  For the reasons set forth above, a final determination that the Greater Connecticut one-hour ozone nonattainment area did not meet its applicable one-hour ozone attainment deadline will not result in reclassification of the area for the one-hour standard, nor in any additional air quality obligations for the area.

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[FR Doc. 2011-30254 Filed 11-22-11; 8:45 am]

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