Approval and Promulgation of Implementation Plans; Transportation Control Measures, State of New York

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II, Docket No. 152, NY21-1-6732a; FRL-5555-2]

Approval and Promulgation of Implementation Plans; Transportation

Control Measures, State of New York

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a

request submitted on November 15, 1992 by the State of New York to

revise its ozone state implementation plan (SIP) which addresses the

need for transportation control measures (TCMs) to offset growth in

emissions from growth in vehicle miles travelled (VMT) as required by

the Clean Air Act (Act). New York has indicated that VMT growth will

not result in increased emissions and, therefore, TCMs are not needed

for this purpose.

DATES: This action is effective on December 2, 1996 unless adverse or

critical comments are received by October 31, 1996. If adverse comments

are received, this notice will be withdrawn in the Federal Register

prior to the effective date of this rule.

ADDRESSES: All comments should be addressed to: William S. Baker,

Chief, Air Programs Branch, Air and Waste Management Division,

Environmental Protection Agency, Region II Office, 290 Broadway, 20th

Floor, New York, New York 10007-1866

Copies of New York's submittals are available at the following

addresses for inspection during normal business hours:

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

[[Page 51215]]

290 Broadway, 20th Floor, New York, New York 10007-1866.

New York Department of Environmental Conservation, 50 Wolf Road,

Albany, New York 12233-1010

Environmental Protection Agency, Air and Radiation Docket and

Information Center (MC 6102), 401 M Street, S.W., Washington, D.C.

20460

FOR FURTHER INFORMATION CONTACT: Linda Kareff, Environmental Protection

Specialist, Technical Evaluation Section, Air Programs Branch,

Environmental Protection Agency, 290 Broadway, 20th Floor, New York,

New York 10007-1866, (212) 637-4249

SUPPLEMENTARY INFORMATION:

Background

Section 182(d)(1)(A) of the Clean Air Act Amendments of 1990

requires states containing ozone nonattainment areas classified as

``severe'' pursuant to section 181(a) of the Act to adopt

transportation control measures (TCMs) and transportation strategies to

offset growth in emissions from growth in vehicle miles travelled (VMT)

or number of vehicle trips, and to attain reductions in motor vehicle

emissions (in combination with other emission requirements) as

necessary to comply with the Act's Reasonable Further Progress (RFP)

milestone and attainment requirements. The requirements for

establishing a VMT offset program are discussed in the April 16, 1992

General Preamble to Title I of the Act (57 FR 13498), in addition to

section 182(d)(1)(A) of the Act.

The VMT offset provision requires that states submit by November

15, 1992 specific enforceable TCMs and strategies to offset any growth

in emissions from growth in VMT or number of vehicle trips sufficient

to allow total area emissions to comply with the RFP and attainment

requirements of the Act.

EPA has observed that these three elements (i.e., offsetting growth

in mobile source emissions, attainment of the RFP reduction, and

attainment of ozone national ambient air quality standards (NAAQS))

create a timing problem of which Congress was perhaps not fully aware.

As discussed in EPA's April 16, 1992 General Preamble to Title I, ozone

nonattainment areas affected by this provision were not otherwise

required to submit SIPs that show attainment of the 1996 15% RFP

milestone until November 15, 1993, and likewise are not required to

demonstrate post-1996 RFP and attainment of the NAAQS until November

15, 1994. The SIP demonstrations due on November 15, 1993, and on

November 15, 1994 are broader in scope than growth in VMT or trips in

that they necessarily address emission trends and control measures for

non-motor vehicle emission sources and, in the case of attainment

demonstrations, complex photochemical modeling studies.

EPA does not believe that Congress intended the VMT offset

provision to advance dates for these broader submissions. Further, EPA

believes that the November 15, 1992 date would not allow sufficient

time for states to have fully developed specific sets of measures that

would comply with all of the elements of the VMT offset requirements of

section 182(d)(1)(A) over the long term. Consequently, EPA believes it

would be appropriate to interpret the Act to provide the following

alternative set of staged deadlines for submittal of elements of the

VMT offset SIP. Under this interpretation, the three required elements

of section 182(d)(1)(A) are separable, and can be divided into three

separate submissions on different dates. Section 179(a) of the Act, in

establishing how EPA would be required to apply mandatory sanctions if

a state fails to submit a full SIP also provides that the sanctions

clock starts if a state fails to submit one or more SIP elements, as

determined by the Administrator. EPA believes that this language

provides EPA the authority to determine that the different elements of

a SIP submission are separable. Moreover, given the continued timing

problems addressed above, EPA believes it is appropriate to allow

states to separate the VMT offset SIP into three elements, each to be

submitted at different times: (1) The initial requirement to submit

TCMs that offset growth in emissions; (2) the requirement to comply

with the 15% Rate of Progress requirement of the Act; and (3) the

requirement to comply with the post-1996 periodic reduction and

attainment of the ozone NAAQS.

Under this approach, the first element, the emissions offset

element was due on November 15, 1992. EPA believes this element is not

necessarily dependent on the development of the other elements. A state

could submit the emissions growth offset element independent of an

analysis of that element's consistency with the periodic reduction and

attainment requirements of the Act. Emissions trends from other sources

need not be considered to show compliance with the offset requirement.

As submitting this element in isolation does not implicate the timing

problems of advancing deadlines for RFP and attainment demonstrations,

EPA does not believe it is necessary to extend the statutory deadline

for submittal of the emissions growth offset element.

The second element, which requires the VMT offset SIP to comply

with the 15% RFP requirement of the Act was due on November 15, 1993

which is the same date on which the 15% RFP SIP itself was due under

section 182(b)(1) of the Act. EPA believes it is reasonable to extend

the deadline for this VMT offset element from November 15, 1992 to the

date on which the entire 15% SIP was due, as this allows states to

develop the comprehensive strategy to address the 15% requirement and

assure that the TCM elements required under section 182(d)(1)(A) are

consistent with the remainder of the 15% demonstration. Indeed, EPA

believes that only upon submittal of the broader 15% plan can a state

have had the necessary opportunity to coordinate its VMT strategy with

its 15% plan.

The third element, which requires the VMT offset SIP to comply with

the post-1996 RFP and attainment requirements of the Act was due on

November 15, 1994, the statutory deadline for those broader

submissions. EPA believes it is reasonable to similarly extend the

deadline for this VMT element to the date on which the post-1996 RFP

and attainment SIPs are due for the same reason it is reasonable to

extend the deadline for the second element. First, it is arguably

impossible for a state to make the showing required by section

182(d)(1)(A) for the third element until the broader demonstrations

have been developed by the State. Moreover, allowing states to develop

the comprehensive strategy to address post-1996 RFP and attainment by

providing a fuller opportunity to assure that the TCM elements comply

with the broader RFP and attainment demonstrations, will result in a

better program for reducing emissions in the long term.

State Submittal

On November 15, 1992, the State of New York submitted its ozone SIP

revision dealing with, in part, whether TCMs are needed to offset

growth in emissions. The submittal was found to be incomplete and was

resubmitted with additional information on September 9, 1993. The EPA

found the SIP complete with the supplemental information on November 5,

1993. In this submittal, the State has indicated that it does not need

to submit a revision adopting specific TCMs under the first element of

the VMT offset requirement because it has determined that it will not

need to offset growth in emissions from growth in VMT into the next

century. EPA's independent analysis (included in the technical support

document) supports this finding and demonstrates that New York will

[[Page 51216]]

not need to offset growth in emissions until at least the year 2007,

the year New York is required to demonstrate attainment. The second and

third TCM elements will be addressed in future rulemaking when EPA

evaluates New York's 15% Rate of Progress requirement to be resubmitted

by New York and the post-1996 attainment SIP submittals.

Conclusion

Section 182(d)(1)(A) of the Act requires the State to offset any

growth in emissions from growth in VMT. As discussed in the General

Preamble, the purpose is to prevent a growth in motor vehicle emissions

from canceling out the emission reduction benefits of the federally

mandated programs in the Act. EPA interprets this provision to require

that sufficient measures must be adopted so that projected motor

vehicle volatile organic compound (VOC) emissions will never be higher

during the ozone season in one year than during the ozone season in the

year before. When growth in VMT and vehicle trips would otherwise cause

a vehicle upturn in emissions from motor vehicles, this upturn must be

prevented. The emissions level at the point of upturn becomes a ceiling

on motor vehicle emissions. This requirement applies to projected

emissions in the years between the submission of the SIP revision and

the attainment demonstrations. The ceiling level is defined, therefore,

up to the point of upturn, as motor vehicle emissions that would occur

in the ozone season of that year, with VMT growth, if all measures for

that area in that year were implemented by the Act. When this curve

begins to turn up due to growth in VMT or vehicle trips, the ceiling

becomes a fixed value. The ceiling line would include the effects of

federal measures such as new motor vehicle standards, phase II Reid

vapor pressure (RVP) controls, and reformulated gasoline, as well as

the Act-mandated SIP requirements.

The State of New York has indicated in its submittal on November

15, 1992 that the predicted growth in VMT is not expected to result in

an increase in motor vehicle emissions that will negate the effects of

the reductions mandated by the Act. Because the current modelling does

not indicate a need for TCMs to offset growth in emissions before 2007,

the year New York State is to demonstrate attainment, we are approving

the part of the ozone state implementation plan that determines that

New York is not required to adopt specific, enforceable TCMs to meet

the first element of the offset requirement. EPA is therefore approving

the New York State SIP revision submittals as satisfying the first of

the three VMT offset plan requirements. With respect to the second

element, EPA will address this element when New York's 15% Rate of

Progress plan is resubmitted to EPA. With respect to the third element,

New York will periodically be updating its emissions projections as a

part of its post-1996 RFP and attainment SIPs. Upon review of the

updated projections, EPA will determine if revised emissions estimates

have changed creating a necessity for TCMs.

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.

EPA is publishing this rule without prior proposal because EPA

views this as a noncontroversial amendment and anticipates no adverse

comments. However, in a separate document in this Federal Register

publication, the EPA is proposing to approve the SIP revision should

adverse or critical comments be filed. Thus, this direct final action

will be effective December 2, 1996, unless, by October 31, 1996,

adverse or critical comments are received.

If the EPA receives such comments, this rule will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. EPA will not institute a second comment period on this

action. Any parties interested in commenting on this rule should do so

at this time. If no adverse comments are received, the public is

advised that this rule will be effective December 2, 1996. (See 47 FR

27073 and 59 FR 24059).

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. Moreover, 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 US 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 182(d)(1)(A) 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 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 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 the

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

this direct 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 5 U.S.C. 801(a)(1)(A) as added 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 the rule in today's

Federal Register. This rule is

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not a ``major rule'' as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) 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 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements, Volatile organic compounds.

Dated: July 29, 1996.

William 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 52.1683 is amended by adding new paragraph (c) to read

as follows:

Sec. 52.1683 Control Strategy; Ozone

* * * * *

(c) EPA approves on December 2, 1996, a request submitted by the

State of New York to revise its ozone state implementation plan (SIP)

which addresses the need for transportation control measures (TCMs) to

offset growth in emissions from growth in vehicle miles travelled (VMT)

as required by the Clean Air Act (Act). New York has indicated that VMT

growth will not result in increased emissions and, therefore, TCMs are

not needed for this purpose.

[FR Doc. 96-24534 Filed 9-30-96; 8:45 am]

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