American
Lung
Association
of
New
York
State
Environmental
Defense
New
York
Public
Interest
Research
Group
February
6,
2004
Jane
M.
Kenny
Regional
Administrator
U.
S.
Environmental
Protection
Agency,
Region
2
290
Broadway
New
York,
NY
10007­
1866
Dear
Ms.
Kenny:

This
letter
is
in
response
to
the
U.
S.
Environmental
Protection
Agency's
(
EPA)
December
3,
2003
letter
to
New
York
Commissioner
Erin
Crotty
regarding
EPA's
recommended
air
quality
status
designations
and
boundaries
for
the
8­
hour
ozone
national
ambient
air
quality
standard
(
NAAQS).
We
urge
EPA
to
adopt,
in
final
form,
the
comprehensive,
protective
ozone
nonattainment
boundaries
that
it
recommended
for
the
State
of
New
York
to
protect
the
millions
of
individuals
in
New
York
breathing
unhealthy
pollution
levels.
Final
action
consistent
with
EPA's
nonattainment
recommendations
for
the
state
is
essential
to
enable
the
state
and
affected
communities
to
take
the
necessary
steps
to
achieve
cleaner,
healthier
air.

Indeed,
the
American
Lung
Association
estimates
that
170,000
children
across
New
York
are
afflicted
with
asthma
(
ALA,
"
State
of
the
Air:
2003").
The
health
of
these
children
and
other
individuals
with
asthma
and
respiratory
ailments
is
at
risk
due
to
pervasive
ozone
air
pollution.
To
protect
public
health,
we
recommend
that
EPA
designate
as
nonattainment
the
Jamestown,
Buffalo­
Niagara
Falls,
Rochester,
Syracuse,
and
Albany­
Schenectady,
Troy
MSAs,
as
well
as
the
New
York
portion
of
the
New
York­
Northern
New
Jersey­
Long
Island
CMSA,
Jefferson
County,
and
a
portion
of
Essex
County
as
nonattainment
for
the
8­
hour
ozone
standard.
Designation
of
these
areas
is
required
by
the
Clean
Air
Act
(
CAA),
which
unambiguously
defines
as
"
nonattainment"
any
area
that
does
not
meet
the
8­
hour
ozone
standard
or
that
contributes
to
ambient
air
quality
in
a
nearby
area
that
does
not
meet
the
standard.
CAA
§
107(
d)(
1)(
A)(
i),
42
U.
S.
C.
§
7407(
d)(
1)(
A)(
i).
Furthermore,
the
public
has
a
right
to
know
whether
the
air
they
are
breathing
is
healthy
or
unhealthy;
these
designations
are
critical
to
fully
informing
people
as
to
the
status
of
air
quality
in
their
area.

EPA
requested
that
the
State
of
New
York
submit
any
responsive
comments
to
EPA's
December
3,
2003
letter
by
February
6,
2004.
We
respectfully
request
that
our
timely
comments
likewise
be
given
full
consideration
by
the
Agency.
All
of
the
documents
referenced
herein
are
hereby
incorporated
as
part
of
our
comments.
2
THE
FEDERAL
OZONE
STANDARD
HAS
BEEN
STRENGTHENED
TO
IMPROVE
PROTECTION
OF
PUBLIC
HEALTH
In
1997,
EPA
strengthened
the
ozone
standard
to
improve
protection
of
public
health.
Specifically,
EPA
found
that
the
new
standard
would
protect
children
and
other
vulnerable
populations
against
decreased
lung
function,
respiratory
ailments,
hospital
admissions
and
emergency
room
visits
for
respiratory
causes,
inflammation
of
the
lungs,
and
possible
long­
term
lung
damage.
62
Fed.
Reg.
38,856
(
July
18,
1997).
EPA's
decision
to
tighten
the
ozone
standard
was
based
on
a
rigorous
assessment
of
epidemiological
and
clinical
studies
demonstrating
adverse
health
effects
at
pollution
concentrations
that
currently
exist
in
many
communities
across
the
country.

Since
1997,
the
public
health
imperative
for
the
standard
has
only
become
stronger
as
further
scientific
investigation
has
documented
the
adverse
health
effects
of
ozone.
Post­
1997
studies
have
linked
ozone
with
increased
risk
of
asthma
in
children
(
The
Lancet,
2002;
JAMA,
2001),
an
increase
in
use
of
medicine
for
kids
with
asthma,
even
at
levels
that
are
below
the
current
NAAQS
(
JAMA,
October
8,
2003),
school
absences
resulting
from
sore
throat,
coughs,
asthma
attacks
(
Epidemiology,
2001;
Inhalation
Toxicology,
2000),
decreased
lung
function
in
girls
with
asthma
(
Am.
J.
Respir.
Crit.
Care
Med.,
1999),
and
long­
term
lung
damage
in
children
(
Am.
J.
Respir.
Crit.
Care
Med.,
1999).

The
unhealthy
ozone
levels
across
the
state
of
New
York
put
hundreds
of
thousands
of
children,
individuals
with
asthma
and
the
elderly
at
increased
risk
from
the
harmful
effects
of
ozone.
Indeed
the
American
Lung
Association's
"
State
of
the
Air:
2003"
report
concluded
that
high
ozone
levels
are
worsening
in
New
York.
The
report,
which
is
based
on
1999­
2001
air
quality
monitoring
data,
found
that
the
air
quality
in
five
counties
in
the
state
declined
since
the
2002
report.
The
larger
New
York
Metropolitan
area
in
particular
went
from
placing
20th
to
14th
on
the
ALA's
list
of
the
most
ozone­
polluted
cities.
In
all,
nine
counties
in
New
York
received
an
"
F"
for
poor
air
quality
related
to
ozone
from
the
ALA,
(
ALA
"
State
of
the
Air:
2003").

EPA
MUST
DESIGNATE
AS
NONATTAINMENT
THOSE
AREAS
MONITORING
VIOLATIONS
BASED
ON
THE
MOST
RECENT
DATA
There
are
several
areas
that
have
violated
the
8­
hour
ozone
standard
since
the
state
recommendations
were
submitted.
EPA
must
base
its
final
nonattainment
designations
on
the
most
recent
data
and
ensure
that
all
areas
violating
the
standard
and
contributing
to
violations
based
on
2001­
2003
data
are
in
fact
declared
nonattainment.
EPA's
November
14,
2002
memorandum
regarding
the
schedule
for
8­
hour
ozone
designations
explains
that
if,
" 
2001­
2003
air
quality
data
are
available
and
quality
assured
at
the
time
of
final
designations,
EPA
will
use
2001­
2003
data
when
promulgating
the
designations."
Due
to
recent
violations
in
the
Syracuse,
Rochester
and
Albany­
Schenectady­
Troy
MSAs,
EPA
must
ensure
that
these
areas
are
designated
nonattainment.
Designation
of
these
areas
as
"
nonattainment"
is
unambiguously
required
by
section
107(
d)(
1)(
A)(
i)
of
the
Clean
Air
Act,
42
U.
S.
C.
§
7407(
d)(
1)(
A)(
i).
3
Nonattainment
designations
for
these
areas
will
help
to
protect
people
who
are
most
impacted
by
ozone.
The
American
Lung
Association
estimates
that
there
are
thousands
of
individuals
in
these
areas
at
risk
from
harmful
ozone.
According
to
the
ALA,
in
just
Madison
and
Onondaga
Counties,
in
the
Syracuse
MSA,
there
are
an
estimated
7,487
cases
of
pediatric
asthma,
29,036
cases
of
adult
asthma,
18,425
cases
of
chronic
bronchitis,
and
6,501
cases
of
emphysema
based
on
2000
and
2001
data.
The
ALA
compiled
data
for
Monroe
and
Wayne
Counties
in
the
Rochester
MSA
and
found
11,833
cases
of
pediatric
asthma,
45,625
cases
of
adult
asthma,
28,802
cases
of
chronic
bronchitis,
and
9,978
cases
of
emphysema.
Similar
data
for
the
Albany­
Schenectady­
Troy
MSA
shows
that
Albany,
Saratoga
and
Schenectady
had
8,427
cases
of
pediatric
asthma,
36,211
cases
of
adult
asthma,
23,052
cases
of
chronic
bronchitis,
and
8,177
cases
of
emphysema,
(
ALA
State
of
the
Air:
2003).

In
particular,
the
State
of
New
York
does
not
support
the
Syracuse
MSA
being
designated
as
nonattainment.
We
believe
that
the
monitoring
data
and
the
emissions
in
the
area
warrant
a
nonattainment
designation.
Monitoring
data
on
EPA's
website
indicate
that
in
2002,
Onondaga
County
exceeded
that
8­
hour
ozone
standard
nine
times,
with
a
4th
highest
value
of
91
ppb
while
in
2003
Oswego
County
exceeded
the
standard
5
times,
with
a
4th
highest
value
of
93
ppb.
According
to
air
quality
monitoring
data,
this
MSA
is
violating
the
8­
hour
ozone
standard
and
should
be
designated
nonattainment.
Area
and
point
source
emissions
of
ozone­
forming
pollutants
in
the
Syracuse
MSA
are
quite
high;
1999
emissions
data
shows
a
total
of
36,062
tons
per
year
of
NOX
emissions
and
44,097
tons
per
year
of
VOC
emissions,
(
http://
www.
epa.
gov/
air/
data/).

COMPREHENSIVE
OZONE
NONATTAINMENT
BOUNDARIES
FOR
THE
NEW
YORK
CITY
METROPOLITAN
AREA
ARE
REQUIRED
TO
COMPLY
WITH
THE
CLEAN
AIR
ACT,
CONSONANT
WITH
SOUND
SCIENCE,
NECESSARY
TO
PROTECT
PUBLIC
HEALTH,
AND
WILL
RESULT
IN
A
MORE
SENSIBLE,
EQUITABLE
OZONE
CONTROL
STRATEGY
The
State
of
New
York's
initial
recommendations
to
EPA
failed
to
comply
with
the
law
and
EPA's
long­
standing
policy
calling
for
presumptive
C/
MSA
boundaries,
(
July
15,
2003
letter
from
Commissioner
Erin
Crotty
to
Jane
Kenny,
Regional
Administrator,
EPA
Region
2).
At
core,
EPA
has
long­
required
nonattainment
boundaries
to
encompass
the
entire
C/
MSA
to
ensure
the
public
health
protection
that
results
from
comprehensive,
sound
air
quality
management,
and
to
ensure
that
all
sources
that
contribute
to
ozone
nonattainment
problems
bear
their
fair
share
of
the
clean
up
costs.
Comprehensive
boundaries
are
integral
to
effective
planning
and
inter­
governmental
coordination.
However,
New
York
has
recommended
that
Orange,
Putnam
and
Dutchess
Counties
comprise
a
distinct
nonattainment
area,
separate
from
the
rest
of
the
New
York­
Northern
New
Jersey­
Long
Island
CMSA.
EPA
must
ensure
that
the
entire
CMSA
is
designated
nonattainment.
4
This
is
contrary
to
federal
law
and
policy.
EPA
has
advised
states
to
presumptively
designate
nonattainment
boundaries
that
encompass
all
counties
in
the
C/
MSA
("
Boundary
Guidance
on
Air
Quality
Designations
for
the
8­
Hour
Ozone
NAAQS,"
March
28,
2000).
In
its
memorandum,
EPA
stated:
"
it
is
best
to
consider
controls
on
sources
over
a
larger
area
due
to
the
pervasive
nature
of
ozone
and
the
transport
of
ozone
and
its
precursors."
Because
C/
MSAs
generally
experience
higher
ozone
pollution
due
to
population
density,
traffic
and
commuting
patterns,
commercial
and
industrial
development
and
area
growth,
EPA's
presumptive
boundary
ensures
more
protection
of
public
health
from
the
adverse
effects
of
ozone
pollution.
In
its
memorandum,
EPA
listed
eleven
important
factors
that
States
need
to
address
to
overcome
the
C/
MSA
presumptive
boundary.
EPA
must
reject
the
state's
recommendation
to
bifurcate
or
split
the
New
York­
Northern
New
Jersey­
Long
Island
CMSA
since
it
is
contrary
to
EPA's
well­
grounded
C/
MSA
presumption.

EPA's
C/
MSA
presumptive
boundary
directly
arises
from
the
encompassing
definition
of
"
nonattainment
area"
set
out
in
section
107(
d)(
1)(
A)(
i)
of
the
CAA.
It
is
a
long­
standing
policy
of
the
agency
and
has
been
codified
by
Congress.
EPA's
presumptive
boundary
for
C/
MSA
nonattainment
areas
has
been
EPA's
policy
on
this
issue
for
well
over
a
decade.
In
1990,
EPA
advised
the
states
that
"[
i]
n
the
case
of
ozone,
where
transport
of
ozone
or
its
precursors
are
an
important
factor
the
MSA/
CMSA
is
the
most
obvious
and
appropriate
boundary
for
initial
SIP
planning."
See
Notice
of
State
implementation
plan
(
SIP)
inadequacy
and
call
for
SIP
revision:
Information
notice,
55
Fed.
Reg.
30,973
(
July
30,
1990).
Likewise,
EPA
explicated
the
compelling
rationale
for
its
presumptive
C/
MSA
boundary
policy
in
the
legislative
debate
over
the
1990
Clean
Air
Act
Amendments:

Counties
included
within
an
MSA
have
similar
population
densities
and
percentage
of
commuters
to
the
urban
core,
hence,
large
transportation
systems
and
associated
vehicular
emissions.
Due
to
these
emissions
and
emissions
from
stationary
sources
located
throughout
the
MSA/
CMSA,
EPA
believes
that
attainment
of
the
ozone
standard
cannot
be
fully
realized
in
these
areas
unless
the
State
considers
the
emissions
originating
from
all
the
counties
within
the
MSA/
CMSA
within
their
control
strategy.

1990
CAA
Leg.
Hist.
9474:

Based
on
EPA's
long­
standing
policy
and
the
compelling
technical
reasons
for
comprehensive
boundaries,
the
Clean
Air
Act
Amendments
of
1990
established
the
C/
MSA
as
the
presumptive
boundary
for
1­
hour
ozone
nonattainment
areas
classified
as
serious
and
above.
See
42
U.
S.
C.
§
7407(
d)(
4)(
A)(
iv).
Congress
required
the
C/
MSA
boundary
for
these
areas
because
it
understood
that
for
a
control
strategy
to
be
successful
in
reducing
ozone
it
must
address
all
the
sources
contributing
to
the
pollution.
At
the
time
of
the
1990
Clean
Air
Act
Amendments,
EPA
was
already
recommending
C/
MSA
boundaries
for
ozone
nonattainment
areas
and
section
107(
d)(
4)
of
the
CAA
reflected
Congress's
codification
of
this
long­
standing
practice.
Accordingly,
law,
policy
and
5
science
militate
that
the
nonattainment
boundaries
for
the
New
York
City
Metropolitan
Area
encompass
the
full
CMSA.

Designating
the
entire
airshed
as
nonattainment
will
ensure
comprehensive,
effective
planning
and
is
especially
important
given
the
far­
reaching
high
ozone
concentrations
across
the
New
York
City
Metropolitan
Area.
Monitoring
sites
in
Orange,
Dutchess
and
Putnam
County
have
experienced
high
ozone
values
(
e.
g.
111
ppb
in
Dutchess
County
and
104
ppb
in
Putnam
County
during
2002;
87
ppb
in
Orange
County
during
2003)
along
with
the
high
values
recorded
in
other
portions
of
the
New
York
City
Metropolitan
Area.
In
accordance
with
EPA's
Boundary
Guidance,
monitoring
data
that
is
representative
of
concentrations
on
an
urban
and
regional
scale
are
to
be
considered
in
boundary
designations.
The
high
ozone
values
recorded
in
this
area
should
be
included
in
the
regional
scale
nonattainment
problem
for
the
entire
metropolitan
area.

Emissions
are
another
factor
for
consideration
in
the
designation
of
ozone
boundaries.
Orange,
Dutchess
and
Putnam
Counties
together
represent
over
10%
of
the
NOX
emissions
for
the
entire
metropolitan
area
and
over
9%
of
the
VOC
emissions.
The
share
of
emissions
from
on­
road
mobile
sources
for
the
three
counties
is
higher,
at
13%
of
total
on­
road
NOX
emissions
and
almost
12%
of
on­
road
VOC
emissions
for
the
entire
area.
Point
source
emissions
in
these
counties
are
also
important,
with
10,472
tons
per
year
of
NOX
emissions
and
3,424
tons
per
year
of
VOC
emissions.
Several
of
the
point
sources
are
electric
utilities
with
significant
NOX
emissions,
(
http://
www.
epa.
gov/
air/
data/).
The
NOX
from
coal­
and
gas­
fired
power
plant
stacks
high
above
the
ground
is
the
pollutant
mix
most
likely
to
travel
extensively
in
the
airshed
and
would
impact
the
entire
metropolitan
area,
not
just
the
counties
in
which
the
electric
generating
units
are
located.
These
emissions
interact
with
local
air
pollution
sources,
creating
ozone,
which
is
the
result
of
emissions
throughout
the
region.
(
Ozone
formation
phenomena
are
described
in
detail,
for
example,
in
the
NARSTO
Ozone
Assessment
(
2000)
http://
www.
cgenv.
com/
Narsto/
assess_
activities.
html
and
in
the
National
Research
Council's
"
Rethinking
the
Ozone
Problem
in
Urban
and
Regional
Air
Pollution"
(
1992)
http://
books.
nap.
edu/
books/
0309046319/
html/
22.
html#
pagetop,
both
of
these
reports
are
hereby
incorporated
by
reference
as
part
of
these
comments).

Comprehensive
nonattainment
boundaries
are
essential
to
protect
public
health.
Timely
attainment
of
the
8­
hour
ozone
standard
will
depend
on
comprehensive
boundaries
that
ensure
that
all
pollution
sources,
both
existing
and
new,
are
subject
to
effective
air
pollution
abatement
measures.

EPA
MUST
DESIGNATE
THE
ROCHESTER
MSA
AS
NONATTAINMENT
Section
107(
d)(
1)(
A)(
i)
unambiguously
defines
as
"
nonattainment"
those
areas
violating
the
8­
hour
ozone
standard.
The
statute
provides
no
exceptions.
It
would
be
a
patent
violation
of
the
Clean
Air
Act
for
EPA
to
fail
to
designate
as
nonattainment
those
areas
with
monitored
8­
hour
ozone
NAAQS
violations.
Therefore,
we
urge
EPA
to
go
forward
with
its
plans
to
designate
the
Rochester
MSA
as
nonattainment
and
further
call
on
the
6
Agency
to
include
in
the
nonattainment
designations
any
counties
with
sources
contributing
to
the
violations
in
the
Rochester
MSA
as
required
by
the
Clean
Air
Act.
The
New
York
DEC
has
recommended
that
this
area
be
designated
as
unclassifiable
because
the
recent
high
ozone
levels
differ
from
the
rest
of
the
past
decade
and
are
due
to
international
and
domestic
transport.
The
plain
terms
of
the
statute
are
manifest
in
requiring
that
this
area
be
declared
"
nonattainment"
and
reserving
for
the
"
unclassifiable"
category
those
areas
with
unknown
air
quality
status.

EPA
MUST
DESIGNATE
WHITEFACE
MOUNTAIN
IN
ESSEX
COUNTY
AS
NONATTAINMENT
As
with
the
Rochester
MSA,
section
107(
d)(
1)(
A)(
i)
unambiguously
defines
as
"
nonattainment"
those
areas
violating
the
8­
hour
ozone
standard.
We
urge
EPA
to
go
forward
with
its
plans
to
designate
those
areas
of
Whiteface
Mountain
above
1900
feet
in
elevation
as
nonattainment
and
further
call
on
the
Agency
to
include
in
the
nonattainment
designations
any
counties
with
sources
contributing
to
the
violations
on
Whiteface
Mountain
as
required
by
the
Clean
Air
Act.
The
New
York
DEC
has
recommended
that
this
area
be
designated
as
unclassifiable
because
the
high
ozone
levels
are
due
to
transport.
The
plain
terms
of
the
statute
are
manifest
in
requiring
that
this
area
be
declared
"
nonattainment"
and
reserving
for
the
"
unclassifiable"
category
those
areas
with
unknown
air
quality
status.

*
*
*

In
conclusion,
we
appreciate
your
consideration
of
our
comments
on
the
8­
hour
ozone
boundary
designations
for
the
State
of
New
York
and
nearby
areas.
Air
quality
monitoring
data
and
other
technical
details
fully
support
EPA's
recommendations
for
this
area,
and
therefore,
we
strongly
support
EPA
in
moving
forward
with
these
designations
as
planned.
EPA
has
made
an
important
step
forward
in
this
process
in
recommending
that
all
areas
violating
the
8­
hour
ozone
standard
be
designated
nonattainment.
We
respectfully
request
that
you
protect
public
health
and
establish
the
framework
for
a
comprehensive
solution
to
the
harmful
ozone
concentrations
in
New
York
and
nearby
areas
by
following
through
with
your
recommendations.

Sincerely,

Janea
A.
Scott
Staff
Attorney
Environmental
Defense
Peter
M.
Iwanowicz
Director
of
Environmental
Health
American
Lung
Association
of
New
York
State,
Inc.

Jason
Babbie
Environmental
Policy
Analyst
7
New
York
Public
Interest
Research
Group
Attachment:
JAMA,
October
8,
2003
Cc:
Ray
Werner
Bill
Baker
Tom
Helms
Sharon
Reinders
David
Cole
Barry
Gilbert
Carl
Johnson
Dave
Shaw
