# 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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A96-18643

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 25, 1996
- **Citation:** 61 FR 38594

## Text

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.

----------------------------------------------------------------------------------------------------------------
State effective Latest EPA approval
New York State regulation date date Comments
----------------------------------------------------------------------------------------------------------------

* * * * * *
*
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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[FR Doc. 96-18643 Filed 7-24-96; 8:45 am]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-18643. Public record. Not legal advice.