Approval and Promulgation of Implementation Plans; Revision to the New York State Implementation Plan for Carbon Monoxide; Determination of Length of Control Period for New York-Northern New Jersey-Long Island Consolidated Metropolitan Statistical Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 151; SIPTRAX NY12-2-6920, FRL-5524-5]

Approval and Promulgation of Implementation Plans; Revision to

the New York State Implementation Plan for Carbon Monoxide;

Determination of Length of Control Period for New York-Northern New

Jersey-Long Island Consolidated Metropolitan Statistical Area

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing the

approval of portions of a request by the State of New York to revise

its State Implementation Plan for Carbon Monoxide. EPA is approving New

York's carbon monoxide plan which includes a vehicle miles travelled

forecast, carbon monoxide emission inventory, multi-state coordination

commitment, and Downtown Brooklyn Master Plan. EPA is also approving

the State's use of the wintertime gasoline volatility program as a

contingency measure. In addition, EPA is partially approving the

State's oxygenated fuels rule. EPA will be taking action on New York's

attainment demonstration, revised new source review program, conformity

rules, and enhanced vehicle inspection and maintenance program in a

separate Federal Register action.

These revisions were required by the Clean Air Act as amended in

1990 and will contribute towards attaining the carbon monoxide

standard. EPA is also determining that the period prone to high ambient

concentrations of carbon monoxide in the New York-Northern New Jersey-

Long Island Consolidated Metropolitan Statistical Area extends for the

four month period from November 1 through the last day of February.

This is the control period for carbon monoxide when State programs in

this area must require oxygenated gasoline.

EFFECTIVE DATE: This action is effective August 26, 1996.

ADDRESSES: Copies of New York's submittals are available at the

following addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Library, 16th Floor,

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.

Environmental Protection Agency, Air and Radiation Docket and

Information Center (Air Docket 6102), 401 M Street, S.W., Washington,

D.C. 20460.

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 in Title I a

number of requirements applicable to areas designated as moderate

nonattainment for carbon monoxide (CO). Among these is the requirement

that by November 15, 1992 the State Implementation Plans (SIP) for such

areas be revised to include the following: an attainment demonstration,

an enhanced vehicle emission inspection and maintenance (I/M) program,

an oxygenated fuels rule, a vehicle miles travelled forecast,

contingency measures, a CO emission inventory, a revised new source

review program, and a 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 comply adequately with

Title I provisions.

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

to its CO SIP that addressed each of the aforementioned requirements

for its moderate CO nonattainment area. In addition, in a submittal

dated March 21, 1994, New York submitted additional information on the

subject.

The New York portion of the New York-Northern New Jersey-Long

Island CO nonattainment area is classified as a moderate 2 area (an

area that has a design value of 12.8-16.4 ppm). This area, which is

part of the New York-Northern New Jersey-Long Island Consolidated

Metropolitan Statistical Area (CMSA), includes the Counties of Bronx,

Kings, New York, Queens,

[[Page 38595]]

Richmond, Nassau, and Westchester. The remainder of New York State is

in attainment for CO.

EPA proposed approval of most provisions of the State's submission

on September 15, 1995 (60 FR 47911). The reader is referred to the

proposal for a detailed discussion of EPA's action. Comments were due

by October 15, 1995. The State of New York was the only commenter.

In its proposal to approve revisions to the New York SIP for CO,

EPA also proposed to determine that the period prone to high ambient

concentrations of CO, and thus the control period when oxygenated

gasoline is required for the New York-Northern New Jersey-Long Island

CMSA, extends from November 1 to the last day of February.

Consequently, EPA proposed to approve New York's oxygenated gasoline

requirement only for that four month period because anything beyond the

control period required by section 211(m) of the Clean Air Act is

preempted under 211(c)(4), due to the reformulated gasoline oxygen

content requirements applicable in this area.

On February 12, 1996, EPA published (61 FR 5363) a Solicitation of

Comment action regarding the proposed determination to set a four month

control period for the New York-Northern New Jersey-Long Island CMSA.

This action solicited comment on the limited issue of some additional

information with regard to emissions modeling and data for the New

Jersey portion of the area. The New York Mercantile Exchange was the

only commenter on this action.

Public Comment

New York's comments on the New York SIP Federal Register concerned

EPA's proposed action on the State's attainment demonstration, I/M

program, oxygenated fuels rule, and contingency measures. For a

detailed discussion of these comments, the reader is referred to the

``New York Carbon Monoxide State Implementation Plan Technical Support

Document (TSD), September 1, 1995 and amended February 28, 1996.'' The

comments are summarized as follows:

1. New York urges EPA to grant full approval to the State's CO

attainment demonstration because the State has devoted substantial

resources to developing it. The principle steps the State used include:

1. Ranking and selection of the ``worst case'' intersections

2. Selection of an air quality model

3. Selection of a background concentration

4. Selection of the temperature to use in the model

5. Modeling

6. Summary of modeling results

These steps are described in more detail in the TSD accompanying

this rule. In general, New York's model shows that the area reaches

attainment of the CO NAAQS when credit for implementing an enhanced I/M

program is considered. However, the State does not, at this time, have

a fully adopted and submitted I/M program. Accordingly, contrary to the

commenter's suggestion, EPA is precluded from granting a full approval

to the attainment demonstration.

EPA is not taking action at this time on the State's attainment

demonstration.

2. In its Federal Register action, EPA proposed not to approve

section 225-3.8 of New York's gasoline regulation. This section allows

the State to grant waivers to the regulation's summertime Reid Vapor

Pressure (RVP) limitations. In its comments, New York states that it

believes this section should be approved along with the rest of the

State's oxygenated gasoline rule, noting that the provision has no

bearing on New York's wintertime oxygenated gasoline program.

While EPA agrees that the summertime RVP controls are not a part of

the oxygenated gasoline requirements, New York is requesting EPA to

approve those RVP controls as part of its federally enforceable SIP.

This requires EPA to evaluate whether those provisions are approvable

as a revision to New York's SIP. For the reasons stated in its proposed

rulemaking, EPA continues to believe that it would be inappropriate to

approve the State's waiver provisions for the RVP requirement given

that the State controls are otherwise identical to the Federal

controls, which the State has no power to waive.

3. New York also commented on the fact that EPA did not propose to

approve section 225-3.9(a), which would allow the State to grant

waivers of the oxygenated gasoline requirements due to shortages in

supply. It believes that the discretion to grant variances should be

part of the State's responsibilities for administering the program, and

that it would take EPA too long to authorize these types of waivers

through the SIP process.

As discussed more fully in the proposal, EPA has identified

specific circumstances under which EPA may approve a narrow state

variance provision that would allow the State to grant waivers and

which would be consistent with the applicable statutory requirements.

Since the New York submission does not provide that any increased

emissions due to a waiver would subsequently be made up, EPA cannot

approve the submitted waiver provision because EPA would have no

assurance that such waivers would not violate the requirement of

section 110(l) by potentially exempting sources from the requirements

of the Clean Air Act.

Absent approval of the waiver provision, EPA would have to evaluate

in each individual case whether a waiver would be consistent with the

statutory requirements. EPA will attempt to address these issues in a

timely fashion. Furthermore, if the State elects to revise its waiver

provision to include the necessary assurance that emissions would be

made up, EPA would make every effort to revise the SIP quickly to

include the waiver provision.

4. New York commented that it believes that, although its employee

commute option program (ECO) submittal must meet certain specific

requirements as an ozone SIP element, the submittal should be approved

as an adequate CO contingency measure at this time.

EPA expects the ECO program to be subject to change by New York

State. It is expected that this will then be submitted to EPA as part

of the ozone SIP. EPA sees no need to reduce the flexibility available

to the State in revising its ECO plan by approving it now as a

contingency CO control measure.

EPA received no negative comments on its proposal to determine that

the period prone to high ambient concentrations of CO for the New York-

Northern New Jersey-Long Island CMSA extends from November 1 through

the last day of February, either on the proposed rulemaking for the New

York CO SIP or the additional Solicitation of Comment (61 FR 5363). The

New York Mercantile Exchange raised concerns on issues outside the

scope of this rulemaking, but strongly supported EPA finalizing the

proposed determination of the control period. Thus, EPA is hereby

determining that the period prone to high ambient concentrations of CO

extends from November 1 through the last day of February. EPA is also

approving New York's oxygenated fuel requirement for only those four of

the seven months provided in New York's submission.

This action of determining that the control period for the New

York-Northern New Jersey-Long Island CMSA is the four month period from

November through February has the effect of converting EPA's limited

approval of the four month portion of New Jersey's oxygenated gasoline

SIP submission

[[Page 38596]]

into a full approval of that part. The reader is referred to the New

Jersey notice (61 FR 5299) for further details.

Elements of the SIP Being Fully Approved

Vehicle Miles Travelled Forecast

The New York SIP is required under section 187(a)(2)(A) of the

Clean Air Act to include a forecast of vehicle miles travelled through

the year 1995. In addition, annual reports on the accuracy of the

forecast and estimates of actual vehicle miles travelled and annual

updates of the forecasts are required of the State; the first of these

was required by September 30, 1994. EPA finds that New York has

submitted documentation satisfying these requirements and, therefore,

is approving New York's vehicle miles travelled forecast SIP revision.

Carbon Monoxide Emission Inventory

The New York SIP is required under section 187(a)(1) and as

described in section 172(c)(3) of the Clean Air Act to include a

comprehensive, actual inventory of all CO emission sources in the

nonattainment areas. EPA proposed to approve the CO inventory, and no

comments on this proposal were received. For the reasons described more

fully in the TSD, EPA is approving New York's 1990 base year emission

inventory for CO.

Multi-State Coordination

The New York SIP is required under section 187(e) of the Clean Air

Act to include a joint workplan to demonstrate early cooperation and

integration of all states in the nonattainment area. This workplan

consisted of a letter signed by former Director Thomas M. Allen

containing a detailed schedule of milestones and a commitment to

coordinate with EPA and each of the states involved. EPA proposed to

approve the joint workplan, and no comments on this proposal were

received. EPA finds that New York has fulfilled this requirement and

approves New York's multi-state coordination commitment.

Contingency Measures

The New York SIP is required under section 187(a)(3) of the Clean

Air Act to include adopted contingency measures in the event the State

fails to attain the national ambient air quality standards by the

required date or if any estimate of vehicle miles travelled contained

in an annual report required by section 187(a)(2) exceeds the number

predicted in the most recent prior forecast. In a January 1992 guidance

document entitled ``Section 187 VMT Forecasting and Tracking

Guidance,'' EPA discussed what it considers to be the allowable limit

of an exceedance after which contingency measures must take effect

without further action by the State or EPA. EPA proposed to approve, as

a contingency measure, the State's wintertime gasoline volatility

program, and no comments on this proposal were received. Thus, EPA

approves, as a contingency measure, the State's wintertime gasoline

volatility program as an adequate contingency measure should New York

fail to attain the CO standard or exceed the vehicle miles travelled

forecast.

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. EPA is

approving this plan as a revision to the SIP.

Elements of the SIP Being Partially Approval

Oxygenated Fuels Rule

The New York SIP is required under section 211(m) of the Clean Air

Act to include an oxygenated gasoline program which requires gasoline

for the State's specified control areas 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 CO. EPA is approving

that part of New York's Subpart 225-3, ``Fuel Composition and Use--

Gasoline (oxygenated gasoline program) which meets the requirements of

the Clean Air Act and which was part of its November 13, 1992, SIP

submittal. As discussed earlier and in its proposed rulemaking, EPA is

approving New York's program only for the four months when the area is

prone to higher ambient concentrations of CO, which is the control

period required by section 211(m) of the Clean Air Act. EPA is also not

approving sections 225-3.8 and 225-3.9(a), which deal with State

gasoline waiver provisions, as discussed earlier. Although EPA is not

approving a portion of the State's regulation, EPA has determined that

the approved provisions fully meet the requirements of section 211(m)

of the Clean Air Act.

Further Actions

EPA will be taking action on New York's I/M program, attainment

demonstration, revised new source review program, and conformity rules

in future Federal Register actions. New York is in the process of

revising its I/M program. Once this revision is submitted as a SIP

revision and approved by EPA, EPA will take action on the I/M program

and the attainment demonstration which relies on credit from the I/M

program.

Conclusion

EPA is fully approving New York's vehicle miles travelled forecast,

CO emission inventory, multi-state coordination commitment, and

Downtown Brooklyn Master Plan, as revisions to New York's CO SIP. In

addition, the State's wintertime gasoline volatility program is being

approved as a contingency measure. EPA is approving portions of New

York's Subpart 225-3, ``Fuel Composition and Use--Gasoline,''

regulation as fully meeting the oxygenated fuels requirement of section

211(m) of the Clean Air Act.

This action is issued as required by section 110 of the Clean Air

Act, as amended. The Administrator's decision regarding the approval of

this plan revision is based on its meeting the requirements of section

110 of the Clean Air Act, and 40 CFR Part 51.

Nothing in this rule 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 any SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

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 SIP 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 approved by this action will 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 will 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

[[Page 38597]]

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

that this final 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.

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

Under section 307(b)(l) of the Clean Air Act, petitions for

judicial review of this rule must be filed in the United States Court

of Appeals for the appropriate circuit within 60 days from date of

publication. Filing a petition for reconsideration by the Administrator

of this final rule does not affect the finality of this rule 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 rule may not be challenged

later in proceedings to enforce its requirements. (See section

307(b)(2)).

Submission to Congress and the General Accounting Office

Under section 801(a)(1)(A) of the Administrative Procedure Act

(APA) as amended by the Small Business Regulatory Enforcement Fairness

Act of 1996, EPA submitted a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives and the Comptroller General of the General Accounting

Office prior to publication of this rule in today's Federal Register.

This rule is not a ``major rule'' as defined by section 804(2) of the

APA as amended.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Intergovernmental relations, Reporting and

recordkeeping requirements.

Dated: May 31, 1996.

William J. Muszynski,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart HH--New York

2. Section 52.1670 is amended by adding new paragraph (c)(89) to

read as follows:

Sec. 52.1670 Identification of plan.

* * * * *

(c) * * *

* * * * *

(89) Revisions to the New York State Implementation Plan (SIP) for

carbon monoxide concerning the control of carbon monoxide from mobile

sources, dated November 13, 1992 and March 21, 1994 submitted by the

New York State Department of Environmental Conservation (NYSDEC).

(i) Incorporation by reference.

(A) Subpart 225-3 of Title 6 of the New York Code of Rules and

Regulations of the State of New York, entitled ``Fuel Composition and

Use--Gasoline,'' effective September 2, 1993 (as limited in section

1679).

(ii) Additional material.

(A) March 21, 1994, Update to the New York Carbon Monoxide SIP.

3. Section 52.1679 is amended by removing the existing entry for

Subpart 225-3 and adding a new entry for Subpart 225-3 in numerical

order to read as follows:

Sec. 52.1679 EPA--approved New York State regulations.

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State effective Latest EPA approval

New York State regulation date date Comments

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* * * * * *

*

Subpart 225-3, Fuel Composition and 9/2/93 [insert date of Section 225-3.4 applicable

Use-- Gasoline. publication and FR November 1 through last day

page citation]. of February. Variances

adopted by the State

pursuant to sections 225-

3.8 and 225-3.9(a) become

applicable only if approved

by EPA as SIP revisions.

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*

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[FR Doc. 96-18643 Filed 7-24-96; 8:45 am]

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