Designations of Areas for Air Quality Planning Purposes; New York, New Jersey, Connecticut; New York-Northern New Jersey-Long Island, NY-NJ-CT 2015 8-Hour Ozone Nonattainment Area; Reclassification to Serious

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

Under the Clean Air Act (CAA or the “Act”), the Environmental Protection Agency (EPA) is granting a request from the States of New York, New Jersey, and Connecticut to reclassify the New York-Northern New Jersey-Long Island, NY-NJ-CT ozone nonattainment area from “Moderate” to “Serious” for the 2015 8-hour ozone national ambient air quality standards (NAAQS). This action does not reclassify any areas of Indian country within the boundaries of this ozone nonattainment area.

DATES:

This rule is effective on July 25, 2024.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2024-0310. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., confidential business information (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 at https://www.regulations.gov, at the U.S. Environmental Protection Agency, EPA Region 1 Regional Office, Air and Radiation Division, 5 Post Office Square—Suite 100, Boston, MA, and at the U.S. Environmental Protection Agency, EPA Region 2 Regional Office, Air Programs Branch, 290 Broadway, New York, New York 10007-1866. EPA requests that if at all possible, you contact the contact 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 a.m. to 4:30 p.m., excluding legal holidays and facility closures due to COVID-19.

FOR FURTHER INFORMATION CONTACT:

For questions relating to Connecticut, contact Bob McConnell, Air and Radiation Division (Mail Code 5-MD), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts 02109-3912; (617) 918-1046, or by email at mcconnell.robert@epa.gov, and for questions relating to New York and/or New Jersey, contact Fausto Taveras, Environmental Protection Agency, Region 2, 290 Broadway, New York, New York 10007-1866, at (212) 637-3378, or by email at Taveras.Fausto@epa.gov.

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. Reclassification of the New York-Northern New Jersey-Long Island, NY-NJ-CT Area to Serious Ozone Nonattainment

II. Statutory and Executive Order Reviews

I. Reclassification of the New York-Northern New Jersey-Long Island, NY-NJ-CT Area to Serious Ozone Nonattainment

Effective August 3, 2018, the EPA classified the New York-Northern New Jersey-Long Island, NY-NJ-CT area under the CAA as “Moderate” for the 2015 8-hour ozone NAAQS. See83 FR 25776 (June 4, 2018).This area is herein referred to as the NY-NJ-CT 2015 NAAQS nonattainment area. Classification of this area as a Moderate ozone nonattainment area established a requirement that the area attain the 2015 ozone NAAQS as expeditiously as practicable, but no later than six years from designation, i.e., August 3, 2024. On May 23, 2024, the New Jersey Department of Environmental Protection requested that the EPA reclassify the NY-NJ-CT 2015 NAAQS nonattainment area from moderate to Severe, or, in the alternative, to Serious if the States of New York and Connecticut did not both submit requests to reclassify the area to Severe but did submit requests to reclassify this area to Serious. On June 5, 2024, the New York Department of Environmental Conservation (NYSDEC) requested that the NY-NJ-CT 2015 NAAQS nonattainment area be reclassified to Serious, and on June 13, 2024, the Connecticut Department of Energy and the Environment also submitted a request that the NY-NJ-CT 2015 NAAQS nonattainment area be reclassified to Serious.

We are approving these States' reclassification request under section 181(b)(3) of the Act, which provides for “voluntary reclassification.” Because the plain language of section 181(b)(3) mandates that we approve such a request, the EPA is granting the States' request for voluntary reclassification under section 181(b)(3) for the NY-NJ-CT 2015 NAAQS nonattainment area for the 2015 ozone NAAQS, and the EPA is reclassifying the area from Moderate to Serious. Because of this action, the NY-NJ-CT 2015 NAAQS nonattainment area must now attain the 2015 ozone NAAQS as expeditiously as practicable, but no later than nine years from the date of the initial designation as nonattainment, i.e., August 3, 2027. Applicable SIP requirements and deadlines associated with the reclassification will be addressed in a separate notice.

Within the geographic boundaries of the NY-NJ-CT 2015 NAAQS nonattainment area Indian country exists under the jurisdiction of the Shinnecock Indian Nation. Because the State of New York does not have jurisdiction over Indian country located within its borders, NYSDEC's request to reclassify the NY-NJ-CT 2015 NAAQS nonattainment area does not apply to this area of Indian country. The EPA implements Federal CAA programs, including reclassifications, in Indian country consistent with our discretionary authority under sections 301(a) and 301(d)(4) of the CAA. The EPA has not received a reclassification request from any Tribe with jurisdiction within the NY-NJ-CT 2015 NAAQS nonattainment area. In this action, we are adding regulatory text to 40 CFR part 81 to indicate that the area under the jurisdiction of the Shinnecock Indian Nation will retain the Moderate classification and the areas under the jurisdiction of the States will be reclassified as Serious.

The EPA has determined that this action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are “impracticable, unnecessary or contrary to the public interest.” The EPA has determined that public notice and comment for this action is unnecessary because our action to approve voluntary reclassification requests under CAA section 181(b)(3) is nondiscretionary both in its issuance and in its content. As such, notice and comment rulemaking procedures would serve no useful purpose.

The EPA also finds that there is good cause under APA section 553(d)(3) for this reclassification to become effective on the date of publication. Section 553(d)(3) of the APA allows an effective date of less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. The schedule for required plan submittals for the NY-NJ-CT 2015 NAAQS nonattainment area under the new classification will be proposed in a separate action. For this reason, the EPA finds good cause under APA section 553(d)(3) for this reclassification to become effective on the date of publication.

II. Statutory and Executive Order Reviews

Under the Clean Air Act this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is 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.);
• Does 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);
• Does not have federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001); and
• Is 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.

In addition, this request is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies. Connecticut, New York, and New Jersey did not evaluate environmental justice considerations as part of their submittals; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 September 23, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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 81

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Ozone

For the reasons set out in the preamble, the Environmental Protection Agency amends 40 CFR Chapter 1 as set forth below:

PART 81—DESIGNATION FOR AREAS FOR AIR QUALITY PLANNING PURPOSES

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

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

Subpart C—[Amended]

2. In § 81.307 the table entitled “Connecticut—2015 8-Hour Ozone NAAQS” is amended by revising the entry for “New York-Northern New Jersey-Long Island, NY-NJ-CT” to read as follows:

3. In § 81.331 the table entitled “New Jersey—2015 8-Hour Ozone NAAQS” is amended by revising the entry for “New York-Northern New Jersey-Long Island, NY-NJ-CT” to read as follows:

4. In § 81.333 the table entitled “New York—2015 8-Hour Ozone NAAQS” is amended by revising the entry for “New York-Northern New Jersey-Long Island, NY-NJ-CT” and adding an entry at the end of the table for “Shinnecock Indian Nation”.

The revision and addition reads as follows: