Approval and Promulgation of Air Quality Implementation Plans; New York; Approval of Carbon Monoxide State Implementation Plan Revision; Removal of the Oxygenated Gasoline Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY34-1-198 FRL-6454-8]

Approval and Promulgation of Air Quality Implementation Plans;

New York; Approval of Carbon Monoxide State Implementation Plan

Revision; Removal of the Oxygenated Gasoline Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In today's action, EPA is proposing to approve a State

Implementation Plan revision submitted by the State of New York on

August 30, 1999. That revision removes New York's oxygenated gasoline

program as a carbon monoxide control measure from the State's SIP. EPA

is proposing to approve this revision because EPA has also determined

that the New York--Northern New Jersey--Long Island carbon monoxide

nonattainment area has attained the carbon monoxide National Ambient

Air Quality Standards.

DATES: Comments must be received on or before November 8, 1999.

ADDRESSES: All comments should be addressed to: Raymond Werner, Acting

Chief, Air Programs Branch, Environmental Protection Agency, Region 2,

290 Broadway, 25th Floor, New York, NY 10007-1866.

Copies of the State submittal and EPA's technical support document

are available for public inspection during normal business hours, by

appointment, at the following addresses: Environmental Protection

Agency, Region 2, Air Programs Branch, 290 Broadway, 25th Floor, New

York, NY 10007-1866. New York State Department of Environmental

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

FOR FURTHER INFORMATION CONTACT: Michael P. Moltzen, Air Programs

Branch, 290 Broadway, 25th Floor, New York, NY 10007-1866, (212) 637-

3710.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What action is EPA taking today?

2. What is the oxygenated gasoline program and how does it apply

in New York?

3. What is the purpose and content of New York's SIP revision?

4. What is EPA's authority for approving oxyfuel removal?

5. How have the criteria for oxyfuel removal been met?

6. How is EPA expediting the processing of New York's request?

7. Conclusion

8. Administrative Requirements

1. What Action Is EPA Taking Today?

EPA is determining that New York's oxygenated gasoline (oxyfuel)

program is no longer needed to maintain the health-related carbon

monoxide (CO) National Ambient Air Quality Standards (NAAQS). As a

consequence of this determination, EPA is proposing to approve part of

a State Implementation Plan (SIP) revision submitted by the State of

New York on August 30, 1999. That revision in part removes New York's

oxyfuel program as a CO control measure from the State's CO SIP. In

today's action, EPA is proposing to approve removal of the oxyfuel

program because it has been determined that the program is no longer

necessary to keep ambient CO concentrations below the CO NAAQS.

In a separate notice published on September 9, 1999 (64 FR 48790),

EPA proposed to determine that the New York--Northern New Jersey--Long

Island CO nonattainment area 1 (``the New York City CO

nonattainment area'', ``the New York City area,'' or ``the area'') has

attained the CO NAAQS.

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\1\ This area is comprised of counties in Northern New York,

downstate New York and Southwestern Connecticut. The Connecticut

portion of the area was redesignated to attainment on March 10, 1999

at 64 FR 12005. The remainder of the area is still designated

nonattainment.

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Under Clean Air Act section 211(m), States with certain CO

nonattainment areas are required to implement oxyfuel programs. Under

section 211(m)(6), once such an area subsequently attains the CO NAAQS,

oxyfuel requirements may be removed if it is demonstrated that they are

not needed for maintaining healthy air quality in that area. Air

quality measurements show that CO concentrations throughout the New

York City area have been declining and have been below the CO NAAQS for

more than four years. Complete monitoring data for the area

demonstrating this finding can be found in the technical support

document for this notice [Region 2 Docket No. NY34-1-198].

EPA has determined, through use of EPA's MOBILE computer model and

air quality dispersion modeling, that the oxyfuel program is no longer

necessary for New York because it has been demonstrated through

technical analyses that attainment of the health-related CO NAAQS will

not be violated anywhere in the area if the program is removed as a

control strategy. By using these modeling tools, EPA has

[[Page 54852]]

determined that improved CO levels are attributable primarily to three

sources of emission reductions: (1) turnover of vehicle fleets in the

area to more sophisticated cleaner technology vehicles; (2)

implementation of reformulated gasoline year round; and (3) the recent

implementation of the enhanced vehicle inspection and maintenance (I/M)

program in New York (enhanced I/M in New Jersey is anticipated to begin

this winter). This modeling, which is discussed in section 5.C of this

notice and detailed in the technical support document, supports the

conclusion that levels of CO meeting the NAAQS are able to be

maintained without the wintertime oxyfuel program in place.

2. What Is the Oxygenated Gasoline Program and How Does It Apply to

New York?

The oxygenated gasoline (oxyfuel) program is one of several

programs designed to reduce CO pollution from gasoline powered vehicles

including passenger cars, sport utility vehicles and light trucks,

which, combined, are significant contributors of CO emissions. EPA

established a NAAQS for CO for the protection of human health. See 40

CFR Sec. 50.8; 50 FR 37501 (Sept. 13, 1985). The applicable CO NAAQS is

9 parts per million (ppm) CO averaged over an eight-hour period.

Inhalation of CO results in inhibition of the blood's capacity to carry

oxygen to organs and tissues. Persons with heart disease, infants,

elderly persons, and individuals with respiratory diseases are

particularly sensitive to CO. Effects of CO on healthy adults include

impaired exercise capacity, visual perception, manual dexterity,

learning functions, and ability to perform complex tasks.

The Clean Air Act sets forth a number of SIP requirements for

states with areas designated as nonattainment for the CO NAAQS. Section

211(m) of the CAA requires states with CO nonattainment areas, having

design values of 9.5 parts per million (ppm) CO or above for any two-

year period after 1989, to implement oxyfuel programs. The requirement

for an oxyfuel program is to apply during the high CO season, which is

generally during the colder winter months when cars tend to have higher

tailpipe CO emissions. Oxyfuel programs require that, during the high

CO season, gasoline contain at least 2.7% oxygen by weight. This

requirement was intended to assure more complete gasoline combustion,

thus achieving a reduction in tailpipe emissions. It should be noted

that the other programs, referenced previously, will continue to ensure

CO concentrations remain at healthy levels.

The requirement for an oxyfuel program applies to certain counties

in New York because portions of the State are included in the New York

City CO nonattainment area which had a design value for CO above 9.5

ppm (that is, levels which exceed the NAAQS). The New York

nonattainment area includes the counties of Bronx, Kings, Queens, New

York, Richmond, Westchester and Nassau. Because the CAA section 211(m)

requirement applies to the Consolidated Metropolitan Statistical Areas

(CMSA) in which the nonattainment area is located, the oxyfuel

requirement for the area applies throughout the larger CMSA. New York's

portion of the larger CMSA, within which the sale of oxyfuel is

required, consists of the following counties: Bronx, Kings, Queens, New

York, Richmond, Orange, Rockland, Putnam, Westchester, Nassau and

Suffolk.

On November 13, 1992, New York submitted to EPA its oxyfuel program

contained in New York Subpart 225-3, ``Fuel Composition and Use--

Gasoline'' (originally adopted September 17, 1992). On July 25, 1996,

EPA approved New York's oxyfuel program into the SIP for the control

period November 1 through the last day of February (61 FR 38594). EPA

also approved Connecticut's oxyfuel program on that date for the same

four-month control period (61 FR 38574). On February 12, 1996, EPA

approved New Jersey's oxyfuel program into the State's SIP for that

same control period (61 FR 5299). At the time of the New York and

Connecticut approvals, EPA made a final determination that November 1

through the end of February is the control period when the New York

City area is prone to high ambient CO concentrations (61 FR 38594).

3. What Is the Purpose and Content of New York's SIP Revision?

New York submitted a proposed CO SIP revision to EPA on August 30,

1999. That submittal proposes to revise the SIP to remove New York's

oxyfuel program as a CO control measure. The submittal also proposes

to: redesignate New York's portion of the New York City nonattainment

area to attainment for CO, modify the Downtown Brooklyn Master Plan to

remove certain transportation control measures that have not yet been

implemented and are no longer necessary to provide for attainment in

that area, and to establish transportation conformity emission budgets

for CO. EPA is proposing action on these other proposed SIP revisions

in a separate notice which will be published in the Federal Register

shortly. Neither New York's redesignation request nor any of the other

elements are directly related to, or required for, the action EPA is

proposing today.

On September 7, 1999, the New York State Department of

Environmental Conservation (NYSDEC) held a public hearing to take

comment on the State's proposed SIP revision to remove its oxyfuel

program from the applicable SIP and on its proposed redesignation

request.

The August 30, 1999 CO SIP revision contains the following

elements, on which EPA is proposing action today:

(1) Air quality monitoring data and modeling data demonstrating

that the New York portion of the New York City nonattainment area

attains the NAAQS for carbon monoxide, without oxyfuel benefits;

(2) The request to remove New York's oxyfuel program regulations

from the applicable SIP.

Removal of the oxyfuel program is supported by the State's

demonstration, using monitored air quality data and vehicle emission

modeling data, that the area is attaining the CO NAAQS, and will

continue to attain even without implementation of the oxyfuel program

in the New York City area. In a similar proposal designed to remove New

Jersey's oxyfuel program published on September 9, 1999 (64 FR 48790),

EPA provided a discussion of an analysis of multi-state air quality and

impacts of oxyfuel removal from the New York City area. The New Jersey

proposal includes discussion of an analysis of certain congested

intersections in New York City. In the New Jersey proposal, EPA

concluded that based on the analyses, the area has been demonstrated to

attain the CO NAAQS without oxyfuel anywhere in the New York City area.

For further detail regarding analysis of that technical demonstration,

the reader is referred to the September 9, 1999 New Jersey proposal at

64 FR 48790 and to the technical support document for today's proposal.

Based on EPA's determination that the New York City area is

attaining the CO NAAQS, and the demonstration of maintenance for the

area, EPA is proposing to approve New York's request to remove the

State's oxyfuel program from its CO SIP.

4. What Is EPA's Authority for Approving Oxyfuel Removal?

Section 211(m) of the Clean Air Act (CAA) generally requires states

to adopt oxygenated gasoline programs for certain areas that, as of

1990, failed to

[[Page 54853]]

meet the National Ambient Air Quality Standard (NAAQS) for carbon

monoxide (CO). Section 211(m)(6) adds, however, that, ``Nothing in this

subsection shall be interpreted as requiring an oxygenated gasoline

program in an area which is in attainment for carbon monoxide * * *''

(emphasis added). EPA interprets section 211(m)(6) to mean that once it

determines that a CO nonattainment area is actually attaining the CO

NAAQS, the State would be allowed to submit a SIP revision to remove

the oxyfuel program so long as the area continues to maintain the CO

standard. A more detailed discussion of this interpretation, and EPA's

authority to remove New York's oxyfuel program from the SIP, can be

found in the September 9, 1999 New Jersey proposal (64 FR 48790).

5. How Have the Criteria for Oxyfuel Removal Been Met?

To determine if a state can remove its oxyfuel program prior to

redesignation for attainment, certain criteria must be met. These

criteria, which are derived directly from our policy for section

211(m)(6) (discussed at 64 FR 48790), are stated below. Following each

is a brief discussion of how New York has met these criteria. A more

detailed technical discussion can be found in the technical support

document for this Federal Register document.

A. Is the Entire Designated Nonattainment Area Actually Attaining the

CO NAAQS?

The entire New York City CO nonattainment area has attained the CO

NAAQS since 1995. The applicable CO NAAQS is 9 ppm averaged over an

eight-hour period. The last CO NAAQS violation occurred in

1994.2 A summary and discussion of the air quality

monitoring data, for New Jersey, New York and Connecticut, which shows

that the entire three-state area has attained the CO NAAQS, can be

found in the September 9, 1999 New Jersey proposal (64 FR 48790).

Complete data and a detailed discussion of it can be found in the

technical support document for this proposal.

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\2\ A violation occurs when two non-overlapping exceedances are

recorded at the same monitoring site during the same calendar year.

An exceedance occurs when an average CO concentration greater than

or equal to 9.5 ppm is recorded over an eight-hour period.

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B. Is the Program To Be Removed Already Approved Into the SIP? If so,

Has the State Submitted a SIP Revision Request, Which Complies With CAA

Section 110(l), To Remove the Oxyfuel Program From the SIP?

The oxyfuel program was approved into the New York SIP on July 25,

1996. Subsequently, New York submitted a SIP revision on August 30,

1999 to remove New York's oxyfuel program as a CO control measure from

the SIP. CAA section 110(l) requires that a state's SIP revision cannot

interfere with a state's attainment or rate of progress toward

attainment. EPA has determined that New York's August 30, 1999 SIP

revision meets the requirements of section 110(l) because it has been

demonstrated that removal of the oxyfuel program from the SIP will not

interfere with any state's CO attainment (see the following

subsection). This action will also not interfere with any state's

attainment of any other criteria pollutants.

C. Is Maintenance of the CO NAAQS, Without Implementation of Oxyfuel,

Demonstrated for the Entire Area?

Attainment has been demonstrated in the entire area (New York, New

Jersey and Connecticut) without the use of oxygenated fuels. New York

submitted an attainment demonstration which shows that CO emissions

will not exceed health-related air quality standards now or in the

future. Levels in its portion of the area. In addition, EPA's proposed

approval of removal of oxyfuel in New Jersey includes an analysis for

certain congested intersections in New York City demonstrating

attainment of the CO standard at those intersections without the

oxyfuel program. A summary and discussion of the modeled air quality

findings for the New Jersey, New York and Connecticut portions of the

area can be found in the September 9, 1999 New Jersey proposal (64 FR

48790). Additional details regarding these analyses can be found in the

technical support document for this notice.

6. How Is EPA Expediting the Processing of New York's Request?

This revision is being proposed using an expedited procedure called

parallel processing, whereby EPA proposes rulemaking action

concurrently with the State's procedures for revising its SIP. If the

proposed revision is substantially changed in areas other than those

identified in this document, EPA will evaluate those changes and may

publish another notice of proposed rulemaking. If no substantial

changes are made other than those areas cited in this document, EPA

will publish a final rulemaking on the revisions. The final rulemaking

action by EPA will occur only after the SIP revision has been adopted

by New York and submitted formally to EPA for incorporation into the

SIP.

7. Conclusion

EPA is proposing to approve New York's August 30, 1999 SIP revision

to remove the State's oxygenated gasoline program from the federally

approved State Implementation Plan. EPA's authority to approve removal

of a state's oxyfuel program is set forth at Clean Air Act section

211(m)(6). EPA has determined that the criteria of section 211(m)(6)

have been satisfied and removal of the oxyfuel program at this time is

appropriate.

EPA is able to approve removal of the oxyfuel program in New York

pursuant to CAA section 211(m)(6) only because EPA has determined that

the area is actually attaining the CO NAAQS. In the unlikely event that

the New York City CO nonattainment area subsequently records a

violation of the CO NAAQS, EPA's basis for approving the removal of the

oxyfuel program would no longer exist and the requirements of section

211(m) would again become effective for New York. This means that the

State would need to implement an oxyfuel program in accordance with the

requirements of CAA section 211(m).

8. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Orders on Federalism

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a state, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to

[[Page 54854]]

develop an effective process permitting elected officials and other

representatives of state, local and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

On August 4, 1999, President Clinton issued a new executive order

on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),)

which will take effect on November 2, 1999. In the interim, the current

Executive Order 12612, (52 FR 41685 (October 30, 1987),) on federalism

still applies. This rule will not have a substantial direct effect on

states, on the relationship between the national government and the

states, or on the distribution of power and responsibilities among the

various levels of government, as specified in Executive Order 12612.

The rule affects only two states, and does not alter the relationship

or the distribution of power and responsibilities established in the

Clean Air Act.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

EPA interprets Executive Order 13045 as applying only to those

regulatory actions that are based on health or safety risks, such that

the analysis required under section 5-501 of the Order has the

potential to influence the regulation. This proposed SIP revision is

not subject to Executive Order 13045 because it proposes approval of a

state program revision, and it is not economically significant under

Executive Order 12866.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If EPA the mandate is

unfunded, EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This proposed rule will not have a significant impact on

a substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the 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 create

any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Act, preparation of flexibility analysis would constitute Federal

inquiry into the economic reasonableness of state action. The Act

forbids EPA to base its actions concerning SIPs on such grounds. Union

Electric Co., versus U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.

7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a federal mandate that may result in estimated

annual costs to State, local, or tribal governments, in the aggregate,

or to private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the proposed approval action does not

include a federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This federal action proposes

to approve amendments to State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Intergovernmental relations.

Authority: 42 U.S.C. 7401 et seq.

Dated: September 29, 1999.

William J. Muszynski,

Acting Regional Administrator, Region 2.

[FR Doc. 99-26510 Filed 10-7-99; 8:45 am]

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