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FEDERAL REGISTER
VOL. 59, No. 77
Rules and Regulations

ENVIRONMENTAL PROTECTION AGENCY (EPA)
40 CFR Part 81
[Air Docket No. A-90-42; FRL-4876-2]

Designations of Areas for Air Quality Planning Purposes; Amendments and Corrections

59 FR 18967

DATE: Thursday, April 21, 1994
ACTION: Final rule.

SUMMARY: The Environmental Protection Agency (EPA) is reaffirming its January 15, 1992 decision to exclude Northern Orange County from the New York-New Jersey-Long Island Consolidated Metropolitan Statistical Area (NYCMSA) ozone nonattainment area in the State of New York. However, EPA has determined that Northern Orange County should be linked with Poughkeepsie ozone nonattainment area. This action is based on information that was brought to EPA's attention by comments on EPA's rulemaking actions which established the current designations and classifications of these areas. EPA is also reaffirming its decision to exclude Putnam County from the NYCMSA ozone nonattainment area and include Putnam County in the Poughkeepsie ozone nonattainment area in the State of New York. This rule completes a process begun on December 28, 1990 to determine the appropriate boundaries of the NYCMSA ozone nonattainment area.

EFFECTIVE DATE: This final rule is effective on April 21, 1994.

ADDRESSES: Materials relevant to this rulemaking are included in Air Docket A-90-42, located in Rm. M-1500, First Floor, Waterside Mall, 401 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 docket is located in the EPA Regional Office listed below.

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

SUPPLEMENTARY INFORMATION: In the Federal Register (FR) of November 6, 1991 (56 FR 56694), EPA issued a final rule promulgating or announcing the designations, boundaries, and classifications of virtually all ozone and carbon monoxide nonattainment areas (including the NYCMSA and the Poughkeepsie ozone nonattainment areas), all particulate matter (PM10) nonattainment areas, and some lead nonattainment areas. Under the authority of sections 107 (d)(2)(B) and (d)(5), 172(a)(1)(B), and 181(a)(3), 186(a)(2), and 188(a) of the amended Clean Air Act (the Act), EPA was not required to solicit public comment prior to these promulgations and, in view of the tight time frames imposed under the Act for designations, classifications, and State Implementation Plan (SIP) submittals, EPA determined that a formal public comment period prior to the promulgations would not be appropriate. Therefore, in its November 6, 1991 notice, EPA stated it would entertain only those public comments addressing the technical correctness of its determinations and significant new policy issues.

In the November 6, 1991 notice, EPA determined that the entire NYCMSA should be designated as nonattainment for ozone, with a classification of severe-17, except in regards to the designation of Orange and Putnam Counties. EPA deferred making a determination at that time for Orange and Putnam Counties, pending a request from the State of New York to conduct a study of the boundaries of the nonattainment area. EPA also determined in its November 6, 1991 notice that the Poughkeepsie ozone nonattainment area, made up of Dutchess County, should be designated marginal nonattainment for ozone.

In the Federal Register of November 30, 1992 (57 FR 56762), EPA issued a final rule containing amendments in response to comments received on its November 6, 1991 notice. Among other things, in the November 30, 1992 notice, EPA determined that:

(1) The existing severe-17 classification of the NYCMSA area shall remain unchanged and would include in Orange County, New York the towns of Blooming Grove, Chester, Highlands, Monroe, Tuxedo, Warwick, and Woodbury;

(2) The remaining towns in Orange County would be excluded from the NYCMSA and designated attainment, specifically the Towns of Cornwall, Crawford, Deerpark, Goshen, Greenville, Hamptonburgh, Middletown, Minisink, Montgomery, Mount Hope, Newburgh, New Windsor, Port Jervis, Wallkill, Wawayanda and the City of Newburgh; and,

(3) Putnam County, New York will be grouped together with Dutchess County, New York and be part of the Poughkeepsie ozone nonattainment area, and be designated as marginal.

For the reasons discussed in its November 30, 1992 notice, EPA solicited comments on the technical correctness of its determination to exclude the northern portion of Orange County and Putnam County from the NYCMSA. EPA stated it would continue to coordinate its analysis of previous comments and any new comments with the State of New York. In addition, EPA stated that, following the comment period on its November 30, 1992 rule, it would come to closure on the boundaries issue in consultation with the State of New York, and would provide the appropriate notification of its decision.

This Federal Register provides such notification that EPA has come to closure on the boundaries issue for the NYCMSA. By this rule, EPA is reaffirming its decision to exclude Putnam and Northern Orange Counties from the NYCMSA ozone nonattainment area, but rather than designating Northern Orange County as attainment, EPA is joining it with the Poughkeepsie ozone nonattainment area.

Before and after publication of its November 30, 1992 notice, EPA received comments from four separate commenters. Further, on January 29, 1993, one of the commenters, Scenic Hudson, Inc., along with the Environmental Defense Fund, Inc., filed in the United States Court of the Appeals for the Second Circuit a petition to review the decision to exclude Northern Orange and Putnam Counties from the NYCMSA. On February 18, 1994, and April 8, 1994, EPA agreed to reconsider this decision. This Federal Register notice is intended to meet this commitment. The comments considered by EPA and the reasons for its decisions are explained in the remainder of this notice. Additional information can be found in the technical support document developed for this action and available at the addresses mentioned in the beginning of this notice.

Framework of the Clean Air Act

Clauses (i) and (ii) of section 107(d)(4)(A) set out the general process by which ozone areas were to be designated immediately after enactment of the Clean Air Act Amendments of 1990. Within specified time periods, the Governor of each State was to submit a list of areas within the State, designating each area as attainment, nonattainment, or unclassifiable. EPA was to promulgate this list, making any appropriate modifications. In accordance with the definition of a "nonattainment" under section 107(d)(1)(A)(i), an area was to be designated nonattainment if it "does not meet (or * * * contributes to ambient air quality in a nearby area that does not meet) [the ozone ambient air quality standards]".

Clauses (iv) and (v) of section 107(d)(4)(A) incorporated into this general process for designating areas a special process for determining the boundaries of ozone nonattainment areas classified as serious or higher. Under this process, the boundaries of a nonattainment area classified as serious or higher that lay within a Metropolitan Statistical Area ("MSA") or Consolidated MSA ("CMSA") were, by operation of law, expanded to include the entire CMSA, except that the Governor was authorized to recommend excluding portions of the CMSA from the nonattainment area if the Governor concluded, and EPA concurred, that sources in that portion "do not contribute significantly to violation of the national ambient air quality standard". The Governor and EPA were required, under this provision, to "consider factors such as population density, traffic congestion, commercial development, industrial development, meteorological conditions, and pollution transport."

If the State and EPA agreed that a portion of the CMSA should be excluded from the serious or higher nonattainment area, the State and/or EPA remained free to designate the portion as appropriate under the general process specified in clauses (i) and (ii) of section 107(d)(4)(A).

Comments on the Designation of Northern Orange County

All of the commenters objected to the exclusion of Northern Orange County from the NYCMSA. Three of the four commenters submitted comments of a general nature and did not provide any technical information for EPA to use in reconsidering its decision. However, one commenter provided information on population, industrial and commercial growth, commuting patterns and population density. This information supplemented and, in some cases, contradicted information submitted by the State of New York as part of its January 15, 1992 study of the NYCMSA boundaries.

In a March 16, 1993 letter EPA recommended that the State consider this information and supplement its January 15, 1992 study. In response to the EPA's request, the State of New York undertook an evaluation of air quality in the Orange and Putnam Counties area using a photochemical grid model, the Urban Airshed Model. This analysis was completed and submitted to EPA on June 16, 1993 and supplemented on April 4, 1994 in response to a request from EPA for clarification.

On February 7, 1994, EPA received additional information and comments from the New York State Department of Transportation (NYSDOT). The report sent by the NYSDOT included information on population, population density, commercial and industrial development, employment, commuting patterns, congestion, and emissions transport. Overall, the information did not affect the findings of the Urban Airshed Modeling analysis, but supported the State's claim that Northern Orange and Putnam Counties did not contribute significantly to a nonattainment problem in the NYCMSA, and were more like Dutchess County in the Poughkeepsie MSA than the NYCMSA.

Based on EPA's evaluation of the information provided by the commenters and the State, EPA has determined that the State has demonstrated, for the purposes of section 107(d)(4)(A)(iv)-(v) of the Act, that sources in Orange County do not contribute significantly to a violation of the national ambient air quality standard for ozone in the NYCMSA. Air quality modeling performed by New York State predicts that emissions from Northern Orange County have the potential to (i) expand by relatively small amounts the predicted nonattainment area and (ii) increase by relatively small amounts the ozone concentrations in several areas downwind, including Putnam County, Fairfield County (part of the NYCMSA), Dutchess County, and the Hartford, CT nonattainment area.

However, the model employed by New York State-although very useful-has several limitations. Most importantly, its input for the emissions inventory has become outdated, and it models only one ozone nonattainment episode. Modeling more episodes may yield somewhat different results that would generate more confidence in the model's accuracy.

EPA has concluded that the model is directionally sound in that it implicates Northern Orange County's emissions as contributing to nonattainment in several areas downwind. However, the limitations of the model, coupled with the fact that it predicts less-than-overwhelming impacts of Northern Orange County emissions on areas within the NYCMSA, means that EPA cannot conclude that the model implicates Northern Orange County's emissions as significantly contributing to nonattainment air quality within the NYCMSA, within the meaning of clause (v) of section 107(d)(4)(A).

Moreover, other information points strongly to the conclusion that sources in Northern Orange County do not significantly contribute to the nonattainment problems of the NYCMSA. It should be noted that a sophisticated air quality model of the type employed by New York State generally yields the clearest view of one area's contribution to the air quality of a second area. This is because the stationary, area, and mobile source emissions within the first area are directly accounted for and modeled to yield an estimate of their impact on the second area. However, in this case, the results of the model, and its limitations, mean that additional information must be closely considered.

An important additional means for sources in one area to contribute to the nonattainment problem of a second area is through vehicle commuting. As discussed more fully in the accompanying technical support document, the amount of commuting from Orange County into the NYCMSA is relatively small. This factor indicates that Northern Orange County does not significantly contribute to the NYCMSA.

Other factors considered include population, populations density, commercial and industrial development, growth rates, and traffic congestion. As discussed more fully in the technical support document, these factors point towards the conclusion that Northern Orange County is more similar to Dutchess County than to nearby counties in the NYCMSA. The growth rate in Northern Orange County is high, but this factor indicates more that Northern Orange County should be designated nonattainment than it does that this portion of the County must be linked with the NYCSMA.

For these reasons, EPA reiterates its concurrence in New York's finding that Northern Orange County should be excluded from the NYCMSA.

However, by this action, EPA is correcting its previous determination that Northern Orange County should be designated attainment. Instead, EPA is taking action to designate Northern Orange County nonattainment, and include it within the boundaries of the Poughkeepsie nonattainment area. As noted above, the model shows that Northern Orange contributes to nonattainment in Poughkeepsie as well as other areas, and thus meets one prong of the definition of a nonattainment area in section 107(d)(1)(A)(i), which is that the area "contribute[] to ambient air quality in a nearby area that does not meet" ambient air quality standards. As discussed in more detail in the TSD, Northern Orange County resembles in important respects-including population and population density-Dutchess County in the Poughkeepsie area.

Comments on the Designation of Putnam County

Four commenters generally disagreed with EPA's decision in its November 30, 1992 rule to exclude Putnam County. Because of the general nature of the comments, no new information of a technical nature was provided that convinces EPA to reconsider its decision. As described in more detail in the technical support document, the reasons for excluding Putnam from the NYCMSA mirror those for excluding Northern Orange County, except that for Putnam, all the factors involved-including modelled impact on the NYCMSA, amount of emissions, commuting, population density, total population, industrial and commercial development, and growth-make for an even more compelling case that Putnam does not contribute significantly to the NYCMSA.

In addition, EPA is reaffirming its decision to include Putnam in the Poughkeepsie nonattainment area. The reasons for this action again mirror the reasons described above for including Northern Orange County with the Poughkeepsie area. As described in more detail in the accompanying technical support document, air quality modeling performed by the State of New York indicated that Putnam's emissions contributed to nonattainment problems in several areas, including the NYCMSA. Because of the limits of the model, coupled with the less-than-overwhelming impact shown on the NYCMSA, EPA cannot conclude that the model in-and-of-itself implicates Putnam County's emissions as a significant contributor to nonattainment in the NYCSMA. However, the model does implicate Putnam as a contributor-with the highest level of contribution to Dutchess County-sufficient to designate Putnam as nonattainment.

One commenter disagreed with EPA's interpretation of the Act. Scenic Hudson, Inc., claimed that the Act does not allow EPA to move Putnam County into the Poughkeepsie nonattainment area. However, the Act in section 107 (d)(4)(A)(v) does not limit EPA's authority under section 107(d)(4)(A) (i)-(ii) to designate areas that have been excluded.

Future Bump-Up

In addition, EPA intends to promulgate in the near future a notice in accord with section 181(b)(2) of the Act, which requires EPA to "bump up" the classification to moderate of any marginal nonattainment areas that did not attain the standard by November 15, 1993. Air monitoring in Dutchess County has recorded four exceedances of the ozone standard over the past three years (two in each of 1991 and 1993). Thus it appears that the Poughkeepsie area did not attain the ozone standard by November 15, 1993. EPA's action would include Dutchess, Putnam and Northern Orange Counties of the Poughkeepsie nonattainment area.

Error Correction

Based on the information described above, with this rule EPA is making corrections to the designations, boundaries, and classifications that were promulgated or announced in the November 6, 1991 rule and the November 30, 1992 amended rule for the NYCMSA and Poughkeepsie nonattainment areas. Specifically, EPA is revising the designation of the Towns of Cornwall, Crawford, Deerpark, Goshen, Greenville, Hamptonburgh, Middletown, Minisink, Montgomery, Mount Hope, Newburgh, New Windsor, Port Jervis, Wallkill, Wawayanda and the City of Newburgh in Northern Orange County from attainment to nonattainment as part of the Poughkeepsie ozone nonattainment area. These corrections are made under section 110(k)(6) of the Act which provides as follows:

Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.

The EPA interprets this provision to authorize the Agency to make corrections to a promulgated regulation when it is shown to EPA's satisfaction that (1) EPA clearly erred in failing to consider or inappropriately considered information made available to EPA at the time of the promulgation, or the information made available at the time of promulgation is subsequently demonstrated to have been clearly inadequate; and (2) other information persuasively supports a change in the regulation. 57 FR 56763 (col. 1) (November 30, 1992).

In this case, EPA has found that the information provided by the State of New York can justify the exclusion of Northern Orange and Putnam Counties from the NYCMSA and include them as part of the Poughkeepsie nonattainment area.

Summary

With this rule, the EPA is (1) reaffirming its January 15, 1992 decision to exclude Northern Orange and Putnam Counties from the NYCMSA (2) reaffirming its decision to make Putnam County part of the Poughkeepsie ozone nonattainment area; and (3) correcting its decision to designate Northern Orange County as attainment and, instead including it in the Poughkeepsie ozone nonattainment area. This rule completes a process begun on December 28, 1990 to revise the boundaries of the NYCMSA.

The effective designation and classification dates for the towns of Blooming Grove, Chester, Highlands, Monroe, Tuxedo, Warwick, and Woodbury in Southern Orange County, NY, and for Putnam County, NY, remains as January 15, 1992.

The effective designation and classification dates for Northern Orange County, generally in accordance with the effective date provisions found in the November 30, 1992 corrections rule, 57 FR 56766 (col. 2), are as follows: November 15, 1990 for purposes of determining the scope of a "covered area" under section 211 (k)(10)(D) and opt-in under section 211 (k)(6); as well as determining the baseline for the reductions needed to meet the requirement to reduce volatile organic compounds by 15 percent, under section 182 (b)(1); and April 21, 1994, for all other purposes, including the applicability of new source review provisions and other substantive State or Federal pollution control requirements.

It should be noted that the entire State of New York is part of the Northeast Ozone Transport Region, and all areas of the State are subject to certain control requirements regardless of their attainment status.

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, National parks, Wilderness areas.

Dated: April 13, 1994.

Carol Browner,

Administrator, Environmental Protection Agency.PART 81-[AMENDED]

40 CFR Part 81 is amended as follows:

1. The authority citation for part 81 continues to read as follows:

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

2. Section 81.300 is amended by revising paragraph (d) (2)(iii) to read as follows:

@ 81.300 -- Scope.

* * * * *

(d) * * *

(2) * * *

(iii) Determining the scope of a "covered area" under section 211 (k)(10)(D) and opt-in under section 211 (k)(6) for the reformulated gasoline requirement and for purposes of determining the baseline of the reductions needed to meet the requirement to reduce volatile organic compounds by 15 percent under section 181 (b)(1). For all other purposes the effective designation date is January 6, 1992 (except for the Towns of Blooming Grove, Chester, Highlands, Monroe, Tuxedo, Warwick, and Woodbury in Orange County, NY, and for Putnam County, NY, for which the effective date is January 15, 1992, and for the remainder of Orange County, NY, for which the effective date is April 21, 1994.

* * * * *

@ 81.333 -- [Amended]

3. In @ 81.333 the table for "New York-Ozone" is amended under the heading "New York-Northern New Jersey-Long Island Area" by revising the entry for "Orange County (part)", the entry for "Poughkeepsie Area" and the entry for "Putnam County"; by revising the entire entry for the "AQCR 161 Hudson Valley Intrastate (Remainder of)"; and by revising footnote number two and by removing footnote number three to the table to read as follows:

@ 81.333 -- New York.

* * * * *



                                New York-Ozone
          Designated Area                           Designation
                                          Date fn 1               Type
                                 * * * * * * *
New York-Northern New Jersey-Long
Island Area
                                 * * * * * * *
Orange County (part) Blooming       1/15/92               Nonattainment
Grove, Chester, Highlands, Monroe,
Tuxedo, Warwick, and Woodbury
                                 * * * * * * *
Poughkeepsie area:
Dutchess County                     1/6/92                Nonattainment
Orange County (remainder)           [Insert date of this  Nonattainment
                                    rule fn 2]
Putnam County                       1/15/92               Nonattainment
                                 * * * * * * *
AQCR 161 Hudson Valley Intrastate                         Unclassifiable/
(Remainder of). Columbia County                           Attainment
Fulton County Schoharie County
Ulster County
                                 * * * * * * *



         Designated Area                       Classification
                                        Date fn 2             Type
                              * * * * * * *
New York-Northern New Jersey-Long
Island Area
                              * * * * * * *
Orange County (part) Blooming      1/15/92             Severe-17.
Grove, Chester, Highlands,
Monroe, Tuxedo, Warwick, and
Woodbury
                              * * * * * * *
Poughkeepsie area:
Dutchess County                    1/6/92              Marginal.
Orange County (remainder)          [Insert date        Marginal.
                                   of this rule fn 2]
Putnam County                      1/15/92             Marginal.
                              * * * * * * *
AQCR 161 Hudson Valley Intrastate
(Remainder of). Columbia County
Fulton County Schoharie County
Ulster County
                              * * * * * * *

fn 1 This date is November 15, 1990, unless otherwise noted.

fn 2 However, the effective date is November 15, 1990 for purposes of determining the scope of a "covered area" under section 211 (k)(10)(D), opt-in under section 211 (k)(6), and the baseline determination of the 15 % reduction in volatile organic compounds under section 182 (b)(1).

* * * * *

[FR Doc. 94-9662 Filed 4-20-94; 8:45 am]

BILLING CODE 6560-50-P


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