Approval and Promulgation of Implementation Plans; Carbon Monoxide State Implementation Plan Revision State of New York and Revision of Oxygenated Gasoline Control Period

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 140, NY 12-1-6477; FRL-5296-7]

Approval and Promulgation of Implementation Plans; Carbon

Monoxide State Implementation Plan Revision State of New York and

Revision of Oxygenated Gasoline Control Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing the approval of portions of a request from

New York to revise its State Implementation Plan (SIP) related to the

control of carbon monoxide. EPA is proposing approval of New York's

vehicle miles travelled forecast, contingency measures, carbon monoxide

emission inventory, multi-state coordination letter, and Downtown

Brooklyn Master Plan. In addition, EPA is proposing approval of the

oxygenated gasoline program in the New York City consolidated

metropolitan statistical area during the four months when the area is

prone to high ambient concentrations of carbon monoxide. New York's

oxygenated fuels program also includes a provision for oxygenated fuels

to serve as a contingency measure in the Syracuse metropolitan

statistical area.

New York has recently updated its enhanced inspection and

maintenance submittal which EPA is currently reviewing. Therefore,

action on that program, along with the attainment demonstration, which

relies on the enhanced inspection and maintenance program, will be

taken in a separate Federal Register notice. These revisions have been

submitted in response to requirements established in the Clean Air Act

as amended in 1990 that the states develop a plan to attain the carbon

monoxide standard.

DATES: Comments must be received on or before October 16, 1995

.ADDRESSES: Written comments should be addressed to:

William S. Baker, Chief, Air Program Branch, Environmental Protection

Agency, Region II Office, 290 Broadway, New York, New York 10007-1866

Copies of the state submittals are available at the following

addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch,

290 Broadway, New York, New York 10007-1866.

New York Department of Environmental Conservation, Division of Air

Resources, 50 Wolf Road, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Henry Feingersh, Air Programs Branch,

Environmental Protection Agency, 290 Broadway, New York, New York

10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

Background

The Clean Air Act, as amended in 1990, sets forth a number of

requirements that states designated as moderate nonattainment for

carbon monoxide had to submit as revisions to their SIPs by November

15, 1992. Since the New York portion of the ``New York-Northern New

Jersey-Long Island'' carbon monoxide nonattainment area is classified

as a moderate 2 area (an area that has a design value of 12.8-16.4

ppm.), New York was required to make this submission. These

requirements are: an attainment demonstration, an enhanced vehicle

inspection and maintenance program, an oxygenated fuels rule, a vehicle

miles traveled forecast, contingency measures, a carbon monoxide

emission inventory, a revised new source review program, and multi-

state coordination letter.

EPA has issued a ``General Preamble'' describing its preliminary

views on how it intends to review SIPs and SIP revisions submitted in

order to meet Title I requirements [see generally 57 FR 13498 (April

16, 1992) and 57 FR 18070 (April 28, 1992)]. The reader should refer to

the General Preamble for a more detailed discussion of the Title I

requirements and what EPA views as necessary to adequately comply with

Title I provisions.

On November 13, 1992, New York submitted to EPA proposed revisions

to its carbon monoxide SIP that addressed each of the above

requirements for its moderate carbon monoxide nonattainment area. In

addition, in a submittal dated March 21, 1994, New York submitted to

EPA additional information pertaining to its carbon monoxide SIP.

As part of Federal Environmental Impact Statement work, certain

projects in Brooklyn were identified as causing violations of the

carbon monoxide standard. The State said that they would revise the

carbon monoxide SIP to mitigate these problems. On September 21, 1990,

New York submitted a revision to the New York SIP to attain the carbon

monoxide air quality standard in the Brooklyn portion of the New York

City metropolitan area.

These three submittals are the subject of this Federal Register.

The following summarizes EPA's evaluation of New York's SIP submittals

and EPA's proposed actions. The details of EPA's review are contained

in the Technical Support Document available at EPA's Region II office.

[[Page 47912]]

Attainment Demonstration

Section 187(a)(7) of the Clean Air Act requires each state that

contains all or part of a moderate 2 area to submit to the

Administrator an attainment demonstration by November 15, 1992. This

attainment demonstration documents how the State will attain the 8-hour

carbon monoxide NAAQS of 9 ppm by December 31, 1995.

New York, using emissions from the EPA-approved MOBILE4.1 model,

demonstrated attainment of the carbon monoxide standard with the EPA-

approved CAL3QHC air quality dispersion model. New York took emission

reductions credit from enhanced I/M, oxygenated fuels, and the federal

motor vehicle control program (vehicle turnover) as control measures to

attain the standard. A detailed explanation of this modeling is

contained in the Technical Support Document.

New York's analysis demonstrated that all of the modeled

intersections attained the 8-hour carbon monoxide standard of 9 ppm.

The highest value obtained was 9.0 ppm which occurred at two

intersections. Since air quality values at the most congested

intersections was determined to not exceed the standard, New York has

demonstrated that the entire area will be in attainment for carbon

monoxide by December 31, 1995.

New York used appropriate modeling techniques and modeling inputs

in this demonstration, however one of the control measures used to

demonstrate attainment, the enhanced inspection and maintenance

program, submitted on November 15, 1993 had not been fully adopted in

accordance with State requirements. On July 31, 1995, New York

submitted an updated enhanced inspection and maintenance program which

EPA determined to be complete on August 2, 1995. EPA will take action

on the enhanced inspection and maintenance program and the attainment

demonstration in a separate Federal Register notice.

Enhanced Inspection and Maintenance Program

Section 187(a)(6) of the Clean Air Act requires implementation of

enhanced inspection and maintenance programs in moderate 2 carbon

monoxide nonattainment areas and includes provisions as required under

section 182(c)(3) concerning serious ozone nonattainment areas. Such

provisions require implementation of an enhanced inspection and

maintenance program in urbanized areas with a population greater than

200,000.

On November 15, 1993 New York submitted draft regulations and other

information pertaining to the enhanced inspection and maintenance

program. Since New York did not submit a fully adopted enhanced

inspection and maintenance program, on February 2, 1994 EPA notified

the State that this submittal was incomplete and a sanctions process

was begun. New York then made an updated submittal on July 31, 1995

which EPA will be taking action on in a separate Federal Register

notice.

Oxygenated Fuels Rule

I. Introduction

Section 211(m) of the Clean Air Act requires that various states

submit revisions to their SIPs, and implement oxygenated gasoline

programs by no later than November 1, 1992. This requirement applies to

all states with carbon monoxide nonattainment areas with design values

of 9.5 parts per million or more based generally on 1988 and 1989 data.

Each state's oxygenated gasoline program must require gasoline for the

specified control area(s) to contain not less than 2.7 percent oxygen

by weight during that portion of the year in which the areas are prone

to high ambient concentrations of carbon monoxide. Under section

211(m)(2), the oxygenated gasoline requirements are to generally cover

all gasoline sold or dispensed in the larger of the consolidated

metropolitan statistical area or the metropolitan statistical area in

which the nonattainment area is located. Under section 211(m)(2), the

length of the control period, to be established by the EPA

Administrator, shall not be less than four months in length unless a

state can demonstrate that, because of meteorological conditions, a

reduced control period will assure that there will be no carbon

monoxide exceedances outside of such reduced period. EPA announced

guidance on the establishment of control periods by area in the Federal

Register on October 20, 1992.\1\

\1\ See ``Guidelines for Oxygenated Gasoline Credit Programs and

Guidelines on Establishment of Control Periods under Section 211(m)

of the Clean Air Act as Amended--Notice of Availability,'' 57 FR

47849 (October 20, 1992).

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State Submittal

In order to fulfill the Clean Air Act requirement, on September 27,

1993 New York submitted a request to revise its State Implementation

Plan to incorporate adopted revisions to Title 6 Subpart 225-3 of the

New York Code of Rules and Regulations, entitled ``Fuel Composition and

Use--Volatile Motor Fuel,'' effective on September 2, 1993.

Applicability and Program Scope

Section 211(m)(2) requires oxygenated gasoline to be sold during a

control period based on air quality monitoring data and established by

the EPA Administrator. New York has established control periods for the

New York City consolidated metropolitan statistical area and the

Syracuse metropolitan statistical areas which are consistent with the

1992 EPA guidance.

New York's oxygenated gasoline regulations require oxygenated

gasoline to be sold in the larger of the consolidated metropolitan

statistical area (CMSA) or metropolitan statistical area (MSA) in which

the nonattainment area is located, consistent with the requirements of

section 211(m)(2) of the Act. The New York City CMSA consists of the

following counties: Bronx, Kings, Queens, New York, Richmond, Orange,

Rockland, Putnam, Westchester, Nassau and Suffolk. New York's current

regulation requires oxygenated gasoline to be sold in this area from

October 1 through April 30. While this control period had been

appropriate in previous carbon monoxide control seasons in the New York

City CMSA, EPA is proposing to determine, based on more recent ambient

air monitoring data, that the appropriate oxygenated gasoline control

period for the area should be shorter in length. Four months is the

minimum program length allowed by the Clean Air Act, except as

indicated in section 211(m)(B) which, at the request of a state with

respect to any carbon monoxide nonattainment area, allows the EPA

Administrator to reduce the period below four months. Such a

determination can only occur if the State can demonstrate that due to

meteorological conditions a shorter period will assure that no carbon

monoxide exceedances will occur outside of that shorter period.

New York also requires the sale of oxygenated gasoline in any area

of the State which had been designated as nonattainment for carbon

monoxide but was redesignated as attainment, if it is required to

maintain the standard in that area.

In the case of the Syracuse metropolitan statistical area, which

has been officially redesignated as attainment for carbon monoxide (See

58 FR 50851), the oxygenated gasoline program is no longer required in

that area since the attainment demonstration did not depend on the

program. The oxygenated gasoline program constitutes the State's

contingency measure for the Syracuse metropolitan statistical area, in

[[Page 47913]]

the event that the carbon monoxide standard is violated in this area.

If this program should need to be re-instituted in this area, the

period of sale would be November 1 through the last day of February.

In this notice EPA is applying established Agency guidance

(announced for availability at 57 FR 47853, October 20, 1992) regarding

oxygenated gasoline control periods to determine the proper control

period length for the New York City CMSA. As part of the 1992 guidance

document, based on air quality data from 1990 and 1991, EPA suggested

that the proper control period for the New York City CMSA was October 1

through April 30. However, the 1992 guidance does not establish a

binding norm regarding control periods and provides that the

determination of the control period will be an issue to be finally

decided by EPA as part of the review of individual state SIP revisions

for oxygenated gasoline programs. For the reasons set forth below, EPA

is now proposing to determine that the appropriate control period is

from November 1 through the last day of February; EPA believes sale of

gasoline oxygenated to 2.7 percent by weight during the months of

October, March and April is no longer necessary for adequate carbon

monoxide control in the New York City CMSA.

Section 211(m), cited in the 1992 EPA guidance, requires control

period length to be decided by the EPA Administrator based on the

period an area is prone to high carbon monoxide concentrations. The

three-state New York City CMSA has not recorded an exceedance of the

carbon monoxide national ambient air quality standard (NAAQS) in the

three months proposed to be dropped since October of 1991. Furthermore,

since 1992 the CMSA has not been prone to high ambient concentrations

of carbon monoxide, during those three months. Under the approach used

in EPA's guidance, ``prone to high ambient concentrations of carbon

monoxide'' is a criterion more stringent than the NAAQS.

While the successful reduction in ambient carbon monoxide levels

during October, March and April in the New York City CMSA can in part

be attributed to the sale of oxygenated gasoline, EPA believes that

implementation of new programs under the Clean Air Act in the New York

City CMSA will adequately ensure continued observance of reduced levels

of carbon monoxide during the months of October, March and April.

Reformulated gasoline, a year round clean gasoline program, which was

implemented on January 1, 1995 in the New York City CMSA [see 59 FR

7716, February 16, 1994.] provides gasoline oxygenated to 2.0 percent.

EPA believes that implementation of enhanced inspection and maintenance

programs [40 CFR Part 51, Subpart S] and the turnover of the New York

City CMSA fleet, to newer, cleaner vehicles combined with the use of

reformulated gasoline will ensure continued lower carbon monoxide

emissions from motor vehicles for the CMSA during October, March and

April.

While the established guidance bases the determination of control

period only on air quality monitoring data (which exists for the entire

New York City CMSA for 1992 to 1995), EPA believes that it is prudent

also to provide a technical analysis further supporting the reduction

of oxygen content during the shoulder months in the area. To support

the contention that in future years, starting with 1996, without sales

of gasoline oxygenated to 2.7 percent, but with implementation of

federal reformulated gasoline (RFG) and enhanced I/M combined with

vehicle turnover carbon monoxide emissions will continue to be lower

during October, March and April in the area, EPA performed a series of

computer model runs. Since the first observance after the

implementation of the oxygenated fuels program of low CO levels during

those months was in 1993, average vehicle emissions from that year were

used as an upper limit in determining the adequacy of removal of the

higher oxygen content in October, March and April.

The comparison was performed utilizing the most current version of

EPA's emission factor model for mobile sources, MOBILE5a. All modeling

assumed implementation of RFG (with 2.0 percent oxygen content) for

1995 and later, and for 1996 and future years, the effect of an

enhanced I/M program are included. MOBILE5a variables such as vehicle

speeds and a vehicle miles traveled growth rate were supplied by the

New York State Department of Environmental Conservation. For further

details regarding the MOBILE5a runs and the subsequent comparisons, the

reader is referred to the technical support document. Modeling shows

that removing oxygenated gasoline (to 2.7 percent) but accounting for

the effects of RFG, enhanced I/M and vehicle turnover, vehicle

emissions of CO, through calendar year 2020 (based on an average day in

the CO season in each of those years), will still be at least 22.74

percent less than vehicle emissions of CO in 1993 with 2.7 percent

oxygenated gasoline. Thus elimination of oxygenated gasoline program

requirements in the shoulder months in the area appears to be

technically sound.

Based on the proposed determination that the appropriate control

period runs from November through February, EPA is proposing to approve

New York's oxygenated gasoline requirement only for that four month

period. This EPA action on New York's SIP revision takes into account

the interaction of the current New York regulation and the RFG

regulation promulgated by EPA on February 16, 1994. During the entire

seven month period of October through April, the current New York

standard for oxygen content in the New York portion of the New York

City CMSA is a minimum of 2.7 percent oxygen by weight. The same New

York portion of the New York City CMSA is also subject to RFG

requirements, which include a year-round oxygenate standard of 2.0

percent. 40 CFR section 80 subpart D. As discussed below, the RFG

requirements act to preempt an extension of the state oxygenated

gasoline provisions beyond the four month period prone to high ambient

concentrations of CO.

EPA's authority to regulate fuels and fuel additives is found in

section 211 of the Clean Air Act. Under section 211(c)(1), the

Administrator has the authority to control or prohibit the manufacture

and sale of fuels and fuel additives on the grounds of danger to public

health or impairment of emissions control devices. Section 211(c)(4)

provides that where the Administrator has set such a control or

prohibition under section 211(c)(1) applicable to a characteristic or

component of a fuel or fuel additive, no state may set a control or

prohibition respecting that characteristic or component, unless the

state control or prohibition is identical to the federal control or

prohibition. This provision preempts state fuel controls that are

nonidentical to federal section 211(c)(1) controls on the same

characteristic or component.

EPA promulgated the RFG program under the authority of sections

211(k) and 211(c)(1) [59 FR 7716, February 16, 1994]. RFG must contain

2.0% oxygen content by weight, and it is required year-round in the New

York City CMSA. In the absence of section 211(m), section 211(c)(4)

would preempt states from establishing their own minimum oxygen content

requirements different from the RFG requirements in RFG areas. Because

section 211(m) is a specific, more stringent requirement, it overrides

the general preemption provision, and states are not preempted from

complying with section 211(m) in RFG

[[Page 47914]]

areas. However, states are preempted from setting nonidentical controls

or prohibitions on oxygen content in RFG areas to the extent that such

controls or prohibitions are not mandated by section 211(m).

In this notice, EPA is proposing to determine that the New York

City CMSA is prone to high ambient concentrations of carbon monoxide

during the four month period of November through February. Section

211(m) only requires states to adopt 2.7% oxygenated gasoline

requirements for the period prone to high ambient concentrations of

carbon monoxide, as determined by the Administrator. Thus, upon

finalization of EPA's proposed determination, section 211(m) would only

require New York to adopt a 2.7% minimum oxygen content standard for

four months. The RFG oxygen content requirement preempts any state from

prescribing or enforcing oxygen content requirements in this area that

go beyond what is mandated by section 211(m). Because New York would be

preempted from enforcing the additional months of October, March and

April, EPA is only proposing to approve New York's oxygenated fuel

requirements for the months of November through February in the

counties of Bronx, Kings, Queens, New York, Richmond, Orange, Rockland,

Putnam, Westchester, Nassau and Suffolk. EPA is publishing concurrently

with this notice a Notice of Proposed Rulemaking to approve

Connecticut's oxygenated gasoline SIP submission. That notice proposes

to establish the same four-month control period for the Connecticut

portion of the New York-New Jersey-Connecticut CO nonattainment area.

New York's four-month control period will be consistent with

Connecticut's four-month control period.

Through a letter dated August 11, 1995 from New York State

Department of Environmental Conservation Deputy Commissioner David

Sterman to EPA Regional Administrator Jeanne Fox, the State of New York

has communicated to EPA their intent to revise Subpart 225-3 to reflect

the shorter control period, identical to the control period EPA is

proposing to approve. In the same letter, New York requests EPA to

revise its control period guidance to shorten the period to four

months. Rather than revising the guidance, in this proposal EPA is

applying the guidance to make a determination that the appropriate

control period for this area is four months. EPA believes it is

appropriate to approve New York's oxygenated fuel requirement for only

four of the seven months provided in New York's submission because this

approval would not increase the stringency of the State submission and

conforms with the State's intended revisions to the regulation. Also,

section 110(a)(2)(A) requires SIPs to include ``enforceable * * *

control measures.'' EPA only has authority to approve the enforceable

portion of the State submission, which, upon finalization of EPA's

proposed determination, would correspond to a four month control

period.

Transfer Documents

New York has included requirements related to transfer

documentation in its regulation. These transfer document requirements

enhance the enforcement of the oxygenated gasoline regulation, by

providing a traceable record for each gasoline sample taken by state

enforcement personnel.

Enforcement and Penalty Schedules

State oxygenated gasoline regulations must be enforceable by the

state oversight agency. EPA recommends that states visit regulated

parties during a given control period. Inspections should consist of

product sampling and record review. In addition, each state should

devise a comprehensive penalty schedule. Penalties should reflect the

severity of a party's violation, the compliance history of the party,

as well as the potential environmental harm associated with the

violation. New York has provided for a comprehensive penalty schedule

in accordance with EPA guidance. In addition to having authority to

assess a civil administrative penalty, the State has authority to use

further measures such as issuance of abatement orders.

Waiver Provisions

EPA is proposing to not approve sections 225-3.8 and 225-3.9(a),

which would allow the Commissioner of the Department of Environmental

Conservation, upon application, to grant waivers from the State's

minimum oxygen content requirement, and the minimum Reid vapor pressure

(RVP) requirement, respectively, due to a shortage of gasoline which

meets those requirements.

In its revision to section 225-3.8, the State revised the RVP

waiver provision originally approved by EPA at 54 FR 26030 on June 21,

1989. At the time, New York had adopted its own summertime RVP

standards, more stringent than national standards, as part of an

initiative on the parts of northeastern states to make progress toward

achieving the National Ambient Air Quality Standard for ozone. Since

that time, the national RVP standards have been lowered to the same

levels as were initiated by New York in 1989. Because the State's RVP

standards are again equal to EPA's national standards and because

gasoline RVP is regulated on the Federal level, New York can no longer

effectively grant waivers for RVP. To avoid confusion that EPA's

approval of the New York RVP requirement might mean that State waivers

would waive the Federal requirements, EPA is not approving the State's

waiver provision (section 225-3.8).

EPA is also proposing to not approve section 225-3.9(a), which

allows the State to grant waivers of the minimum oxygen content

requirement. Generally, EPA does not approve state variance or waiver

provisions in SIP submissions that would allow the state to grant

waivers without EPA approval. To the extent that a waiver provision

would allow a state to exempt a source from compliance required by the

statute, such a waiver could be inconsistent with the applicable

statutory requirements. However, in guidance for oxygenated fuels

programs, EPA has identified circumstances under which the Agency may

approve a very narrow state variance provision authorizing the state to

allow supply of nonconforming gasoline due to extraordinary

circumstances. See Guidelines for Oxygenated Gasoline Credit Programs

under section 211(m) of the Clean Air Act as Amended. The guidance

establishes five conditions to be included in an approvable variance

provision. One of these conditions is that the ``refiner agrees to make

up the air quality detriment associated with the nonconforming

gasoline, where practicable.'' The New York variance provision does not

include this requirement. This is a key condition because it reduces

the likelihood that granting of a variance would detrimentally affect

the environment. Given this deviation from the conditions specified in

the guidance, EPA believes that the New York variance provision is not

approvable because the limits of the discretion do not clearly meet EPA

policy for approving such an exercise of discretion, EPA is not

approving this waiver provision. Such waivers would need to be approved

by EPA as SIP revisions consistent with EPA policy on such waivers.

Test Methods and Laboratory Review

EPA's sampling procedures are detailed in Appendix D of 40 CFR Part

80. EPA has recommended, in its credit program guidelines, that states

adopt these sampling procedures. New York has incorporated by reference

EPA sampling methods.

[[Page 47915]]

Labeling

EPA requires the labeling of gasoline pumps and has strongly

recommended that states adopt their own labeling regulations,

consistent with the federal regulation. New York has adopted labeling

regulations consistent with the federal regulation.

Credit Program

EPA guidance announced the availability of an optional oxygenated

gasoline credit program (57 FR 47849, October 20, 1992), where

marketable oxygen credits may be generated from the sale of gasoline

with a higher oxygen content than is required. New York has opted not

to implement such a credit program and requires a per-gallon minimum

oxygen content of 2.7% during the control period.

II. Proposed Action

EPA's review of Subpart 225-3 indicates that the State has adopted

an oxygenated gasoline regulation in accordance with the requirements

of the Clean Air Act. Therefore, EPA is proposing to approve New York's

Subpart 225-3 oxygenated gasoline program as a revision to the State's

SIP. EPA is proposing not to approve sections 225-3.8 and 225-3.9(a),

which unduly allow the State's Commissioner to grant waivers from the

minimum oxygen content and minimum RVP requirement, respectively.

Vehicle Miles Travelled Forecast

Section 187(a)(2)(A) of the Clean Air Act requires moderate carbon

monoxide nonattainment areas, such as that portion of New York included

in the ``New York-Northern New Jersey-Long Island'' carbon monoxide

nonattainment area, to submit a SIP revision that forecasts vehicle

miles travelled through the year 1995. In addition, annual reports and

annual updates are required by the State.

The vehicle miles travelled forecast must meet several

requirements. It must estimate the vehicle miles travelled from 1990

through 1995 using a method acceptable to EPA, must be conducted in the

appropriate geographic area and must provide for annual updates of the

forecasts and annual reports on the extent to which the forecasts were

accurate, as well as estimates of actual vehicle miles travelled in

each year for which a forecast was required (57 FR 13532, April 16,

1992). Moreover, the state should develop the vehicle miles travelled

forecast based on EPA guidance.

Contingency measures are to be implemented in a case where the

actual annual vehicle miles travelled or the updated forecast contained

in an annual report exceeds the most recent prior vehicle miles

travelled forecast by an acceptable margin of error (5.0 percent in

1994, 4.0 percent in 1995, and 3.0 percent thereafter) and/or if

estimated actual vehicle miles travelled or forecasted vehicle miles

travelled exceeds a cumulative 5 percent cap above the attainment

demonstration.

The estimated vehicle miles travelled for 1990 and 1991 are 130.7

and 134.6 million miles per day, respectively. In addition, the future

forecasts were (in million miles per day) 138.5 for 1992, 142.5 for

1993, 146.4 for 1994, and 150.3 for 1995.

On November 15, 1994, New York submitted a vehicle miles travelled

tracking report for the State's 1992 New York City Metropolitan area

Carbon Monoxide SIP. This report showed that for 1990, the actual

vehicle miles travelled was 130.8. The actual vehicle miles travelled

for 1991 to 1993 were below the original forecast: 131.8 for 1991;

135.8 for 1992 and 137.1 for 1993.

New York has submitted documentation satisfying these requirements

and EPA, therefore, proposes approval of New York's vehicle miles

travelled forecast SIP revision.

Contingency Measures

Section 187(a)(3) of the Clean Air Act requires that states adopt

contingency measures to take effect without further action by the

Administrator or the state if the state fails to attain the NAAQS by

the required date or if any estimate of actual vehicle miles travelled

in the nonattainment area or any updated forecast of vehicle miles

travelled contained in an annual report for any year prior to

attainment is exceeded beyond the allowable limit as discussed in the

vehicle miles travelled forecast section. Contingency measures should

be capable of reducing vehicle miles travelled or resultant emissions

by an amount equal to the projected annual growth rate for vehicle

miles travelled (57 FR 13532, April 16, 1992). New York identified two

contingency measures, the employee commute option program and winter

gasoline volatility reductions, to fulfill this requirement. These

programs would both act as contingency measures for failure to attain

the carbon monoxide standard or for exceeding the vehicle miles

travelled forecast.

1. Employee Commute Option Program

New York is required by section 182(d)(1)(B) of the Clean Air Act

to submit its Employee Commute Option program as part of its ozone

nonattainment SIP. New York's program applies to employers with 100 or

more employees who arrive at the workplace between the hours of 6 and

10 a.m. The goal of this program is to increase the average passenger

occupancies by 25% above the average for all vehicles arriving to all

workplaces within the zone. This would decrease the amount of

automobiles arriving at the workplace, and therefore, decrease the

vehicle miles travelled.

New York enacted enabling legislation on August 9, 1993 and the New

York State Department of Transportation adopted regulations on April 6,

1994 to implement the program. New York then submitted a SIP revision

on June 6, 1994 that contained an adopted employee commute option

program. EPA will be taking action on the employee commute option

program submittal as a requirement of the ozone SIP in a separate

Federal Register notice since there are specific requirements an

employee commute option program must meet for an ozone SIP but not for

contingency measures in a carbon monoxide SIP.

2. Winter Time Gasoline Volatility

New York identified Winter Time Gasoline Volatility as an

additional contingency measure. New York State's Subpart 225-3 ``Fuel

Composition and Use--Volatile Motor Fuel'' permits the commissioner to

set a winter RVP level for gasoline if such a level is necessary for

air quality purposes. This regulation was adopted on June 30, 1993.

EPA is proposing to approve the State's use of the winter time

gasoline volatility program as a carbon monoxide contingency measure

because it is an adopted measure that will serve to reduce emissions of

carbon monoxide. Also, section 211(c)(4) does not preempt the State

from adopting a limit on gasoline RVP in the winter time. Under section

211(c)(4), states are preempted from prescribing any control or

prohibition respecting any characteristic or component of a fuel, where

there is a nonidentical Federal control or prohibition applicable to

such characteristic or component. There are two sources of Federal

controls on RVP, the Phase II Federal RVP controls promulgated under

section 211(h) and section 211(c)(1), and the Federal RVP controls for

reformulated gasoline promulgated under section 211(k) and section

211(c)(1). Both of these Federal RVP controls apply only in the summer

months. There is no Federal RVP control applicable to gasoline in the

winter time, and thus no Federal preemption of the New York winter time

RVP control.

[[Page 47916]]

Although New York identified two acceptable contingency measures,

only one is approvable by EPA at this time. Therefore, EPA proposes to

approve the winter time gasoline volatility program as an adequate

contingency measure should New York fail to attain the carbon monoxide

standard or exceed the vehicle miles travelled forecast. Action on the

employee commute option program will be taken in a separate Federal

Register notice.

Carbon Monoxide Emission Inventory

New York submitted a carbon monoxide emission inventory on November

15, 1992 as required by section 187(a)(1) and as described in section

172(c)(3) of the Clean Air Act. Additional inventory information was

submitted in January and March of 1993.

The emission inventory is for a typical carbon monoxide season

weekday occurring during December, January, and February and represents

a comprehensive, actual inventory of all carbon monoxide emission

sources in the New York Metropolitan area. It includes emissions from

point, area, and mobile sources (see 1990 base year carbon monoxide

emissions summary in Table 1).

Table 1.--Summary of 1990 Base Year Carbon Monoxide Emissions by Source

Category for New York

------------------------------------------------------------------------

CO

emissions

Source category (tons/

day)

------------------------------------------------------------------------

Point........................................................ 31.26

Area......................................................... 380.16

Non-Road Mobile.............................................. 577.71

On-Road Mobile............................................... 4138.02

----------

Total.................................................. 5127.15

------------------------------------------------------------------------

The inventory was developed according to EPA guidance and has been

quality assured. Sources that emit in excess of 100 tons per year of

carbon monoxide are defined as point sources. Stationary sources that

emit below this threshold are too small to be considered point source

and are, therefore, considered to be area sources. The area and off-

highway mobile sources include such categories as stationary source

fuel combustion, aircraft, marine vessels, and railroads. Highway

mobile source emissions were calculated using an updated version of

EPA's MOBILE 4.1 model (MOBILE5). Input parameters to this model

included vehicle miles travelled, speed, temperature, and registration

distribution.

EPA proposes to approve New York's 1990 base year emission

inventory for carbon monoxide.

New Source Review Regulation

Section 173 of the Clean Air Act requires states to submit new

source review (NSR) revisions that, among other things, incorporate new

offset ratios and applicability limits in new source review permitting

regulations by November 15, 1992.

EPA will address New York's NSR regulation in a separate Federal

Register notice.

Multi-State Coordination Letter

Section 187(e) of the Clean Air Act establishes the requirements

for ``multi-state carbon monoxide nonattainment areas,'' which are

defined as single carbon monoxide nonattainment areas that cover more

than one state. To satisfy this requirement, states must develop and

submit to EPA a joint workplan to demonstrate early cooperation and

integration. This workplan can be in the form of a letter co-signed by

all states in the nonattainment area, or, EPA has decided, it can

consist of signed individual letters from each of the states. New York

submitted its letter, containing a detailed schedule of milestones and

a commitment to coordinate with EPA and each of the states involved, on

September 16, 1992.

Therefore, EPA proposes to find that New York has fulfilled this

requirement and proposes approval of this SIP revision.

Downtown Brooklyn Master Plan

On September 21, 1990, New York submitted a revision to the New

York SIP to attain the carbon monoxide air quality standard in the

Brooklyn portion of the New York City metropolitan area. This submittal

consisted of a plan that was developed in 1987 by the Commissioners of

the New York City Departments of Transportation and Environmental

Protection called the Downtown Brooklyn Master Plan (DBMP). The DBMP

committed the City to implement 13 capital projects in order to reduce

high levels of carbon monoxide at intersections in Downtown Brooklyn.

The submittal was found to be administratively complete on November 19,

1990.

The 13 projects that made up the DBMP were devised to alleviate

predicted violations of the carbon monoxide standard that resulted from

several development projects in Downtown Brooklyn. The effects of the

individual projects that made up the DBMP were evaluated as a package

as part of EPA's review of the Environmental Impact Statement for the

Metrotech project. EPA has determined that, taken together, the

projects would eliminate the predicted violations.

In its submittal of November 15, 1992 the State included a status

report on the DBMP. This status report was updated in a July 14, 1994

letter from Thomas Allen, Department of Environmental Conservation. The

status of the DBMP as of July 1994 is displayed in the following table.

It shows that, of the 13 capital projects that made up the original

plan, five have been completed, one has been partially completed, and

two were found to be unnecessary. Of the six projects yet to be

completed, two were expected to be completed prior to December 31,

1995. The remaining four projects are unlikely to be completed by that

date.

The State is free to revise this element of the SIP, either by

demonstrating that the entire DBMP is no longer necessary or by

submitting another program of measures equivalent to those it wants to

remove.

EPA proposes to approve the DBMP as a revision to the SIP.

Table 2.--Downtown Brooklyn Master Plan

----------------------------------------------------------------------------------------------------------------

Downtown Brooklyn master plan status as of July ISOPIA region II 27-Jul-94

1994 Original completion ------------------------------------------

------------------------------------------------ date

Project Status

----------------------------------------------------------------------------------------------------------------

Capital Project Hwk 197A2, Flatbush Ave: 4th 31-Dec-91........... Completed 12/91.

Ave to Nassau St, Jay St: Fulton St to Sands

St, Willoughby St: Flatbush Ave to Gold St.

Capital Porject Hwk 565, Jay St: Fulton St to 31-Dec-91........... Completed 12/91.

Sands St.

Capital Project Hwk 739, Willoughby St: 31-Dec-91........... Completed 12/91.

Flatbush Ave to Gold St.

Capital Project Hwy 197A3R, Flatbush Ave: 30-Jun-95........... Delayed due to MTA station

Atlantic Ave to 4th Ave, Atlantic Ave: reconstruction.

Flatbush Ave to 4th Ave, 4th Ave: Pacific St Estimated bid date Spring 1995.

to Flatbush Ave \1\.

[[Page 47917]]

Capital Project Hwk 197G, Ashland Place: Fulton 30-Jun-93........... Completed 6/93.

St to Dekalb Ave.

Capital Project Hwk 197B, Concord St: Flatbush .................... Capital project no longer necessary.

Ave to Gold St.

Capital Project Hwk 197C, Concord St: Gold St .................... Capital Project no longer necessary.

to Navy St.

Capital Project Hwk 197D, Gold St: Nassau St to 30-Mar-89........... Completed 3/89.

Tillary St.

Capital Project Hbk 667A, Adams/Tillary 31-Dec-95........... Project to be re-evaluated.

Underpass, Adams St SVC Rd N/B: Willoughby to

Sands, Adams St SVC Rd S/B: Willoughby to Red

Cross \1\.

Capital Project Hbk 667B, BQE: W/B off Ramp @ 31-Dec-95........... Timeframe is significantly past 1995.

Ashland Place \1\.

Capital Project Hwk 565A, Tillary/Jay St 31-Jan-95........... Project tied to underpass construction.

intersection double left turns \1\.

Capital Project Hwk 565A, Atlantic Ave W/B: Ft 31-May-93........... MTA approval (delayed) needed to begin

Greene Pl to Flatbush \1\. construction.

Capital Project ED 75 (Project 201; Subproject

E 175):

A: Atlantic Ave E/B: 4th Ave to Flatbush 30-Jun-95........... Construction Completed.

Ave.

B: 4th Avenue N/B: Pacific St to Atlantic 30-Jun-95........... Construction Completed.

Ave.

C: Vanderbilt Ave @ Atlantic Ave \1\....... 31-Mar-94........... Awaiting land acquisition

D: Atura Streets \1\....................... 31-Mar-94........... Under Construction. Completion 9/94.

----------------------------------------------------------------------------------------------------------------

\1\ Projects not yet completed.

Summary

EPA is proposing approval of New York's vehicle miles travelled

forecast, contingency measures, carbon monoxide emission inventory,

multi-state coordination letter, and Downtown Brooklyn Master Plan as

revisions to its carbon monoxide SIP. EPA also proposes approval of New

York's winter time gasoline volatility program as a contingency

measure. The employee commute option program will be acted upon in a

separate Federal Register notice. In addition, with the exception of

sections 225-3.8 and 225.3.9(a), EPA is proposing to approve the

oxygenated gasoline program in the New York City consolidated

metropolitan statistical area. This program also includes a provision

for oxygenated fuels to serve as a contingency measure in the Syracuse

metropolitan statistical area. New York has recently updated their

enhanced inspection and maintenance submittal which EPA is currently

reviewing. Therefore, action on that program, along with the attainment

demonstration, which relies on the enhanced inspection and maintenance

program, will be taken in a separate Federal Register document.

EPA will address the new source review regulation and

transportation and conformity rules in separate Federal Register

documents.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, Part D of the

Clean Air Act do not create any new requirements, but simply approve

requirements that the State is already imposing. Therefore, because the

federal SIP-approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moveover, due to the nature of the federal-state relationship

under the Clean Air Act, preparation of a regulatory flexibility

analysis would constitute federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v US

EPA, 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a federal mandate that may result in

estimated annual costs of $100 million or more to the private sector,

or to state, local, or tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the state and any affected local or tribal governments have

elected to adopt the program provided for under section 187 of the

Clean Air Act. These rules may bind state, local and tribal governments

to perform certain actions and also require the private sector to

perform certain duties. To the extent that the rules being proposed for

approval by this action would impose any mandate upon the state, local

or tribal governments either as the owner or operator of a source or as

a regulator, or would impose any mandate upon the private sector, EPA's

action would impose no new requirements; such sources are already

subject to these regulations under state law. Accordingly, no

additional costs to state, local, or tribal governments, or to the

private sector, result from this action. EPA has also determined that

this proposed action does not include a mandate that may result in

estimated annual costs of $100 million or more to state, local, or

tribal governments in the aggregate or to the private sector.

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and

[[Page 47918]]

Radiation. The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Intergovernmental relations, Ozone, Reporting and recordkeeping

requirements.

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

Dated: September 6, 1995.

William J. Muszynski,

Acting Regional Administrator.

[FR Doc. 95-22957 Filed 9-14-95; 8:45 am]

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