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Updated Request to Reclassify NYMA as a "Moderate" Nonattainment Area

The following is the content of a letter and associated attachments sent to the Administrator at the USEPA, Gina McCarthy. The letter was signed on March 13, 2015 by Joseph J. Martens, Commissioner.

I am again writing in regards to New York State's ongoing efforts to attain the 2008 ozone National Ambient Air Quality Standards (NAAQS). Previously, I had written to underscore the major impact that transported pollutants have on the ability to attain the NAAQS in New York State. That June 20, 2012 letter, a copy of which is enclosed, also contained a request and technical analysis pursuant to Clean Air Act (CAA) Section 181(a)(4) to reclassify the New York-Northern New Jersey-Long Island, NY-NJ-CT area (the "NY-NJ-CT nonattainment area") from marginal to moderate nonattainment for the 2008 ozone NAAQS. That reclassification request was based on predictive air quality screening modeling performed by DEC that indicated the area would not be able to reach compliance by the mandated deadline for marginal nonattainment areas.

On July 20, 2012, EPA responded to this letter by stating it would "consider the information that [DEC] provided and the concerns…raised" and would "notify [DEC] of [EPA's] response once our evaluation is completed." In the intervening two-and-a-half years, DEC has received no further correspondence from EPA on the issue. I understand that EPA's failure to act was caused in part by the complexity of dealing with a multi-state nonattainment area. However, as a result of the recent U.S. Court of Appeals decision in NRDC v. EPA, which accelerates the compliance deadlines, EPA now has sufficient reason to act immediately on this reclassification. That decision established that marginal nonattainment areas no longer have the full 2015 ozone season to reach attainment of the NAAQS; they must instead rely on monitored data from the 2012 to 2014 period. These data, which are currently available, establish the NY-NJ-CT nonattainment area will not come into compliance with the 2008 ozone NAAQS by the July 2015 marginal nonattainment deadline. I am hereby again requesting reclassification of the NY-NJ-CT nonattainment area from marginal to moderate nonattainment for the 2008 ozone NAAQS, to be completed as expeditiously as possible.

Classification as marginal nonattainment for the 2008 ozone NAAQS has only served to delay the implementation of needed programs, since marginal areas are expected to reach attainment merely through controls that are already in place. Timely reclassification will enable New York, New Jersey, and Connecticut to engage in collaborative planning and control measure development that will benefit the health and welfare of the millions of people living and working in the metropolitan area and provide the three states with the best opportunity to achieve attainment by the July 2018 deadline for moderate areas (based on 2015-2017 data).

As noted above, my previous letter described the significant impact of transported ozone on the NY-NJ-CT nonattainment area. Transported pollution continues to interfere with the ability of the NY-NJ-CT nonattainment area to comply with the NAAQS. EPA and upwind states are behind schedule in addressing the "Good Neighbor" provision (CAA Section 110(a)(2)(D)(i)(I)) for the 2008 ozone NAAQS. As you know, discussions are continuing among a large group of states to identify actions that the participating states can take to reduce regional ozone levels. This collaborative effort, however, should not serve as a basis for postponing EPA's action to redesignate the NYMA as moderate nonattainment.

EPA recently released a January 22, 2015 memorandum that detailed photochemical air quality modeling used to project ozone concentrations at air quality monitoring sites in 2018. This modeling revealed that 10 states significantly contribute to projected 2018 nonattainment in Suffolk County, NY, while nine states significantly interfere with the ability to maintain the NAAQS in 2018 in Richmond County, NY. I am encouraged that EPA plans to propose a rule this fall and I urge it to utilize the framework of the federal Cross-State Air Pollution Rule (CSAPR) in that proposal.

Thank you for your consideration of this urgent matter. I again look forward to your approval of this reclassification request and your efforts to address transported ozone pollution. If you have any questions, please contact David Shaw, Director of Air Resources, at (518) 402-8452.

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