Approval and Promulgation of Implementation Plans; New York 15 and 9 Percent Rate of Progress Plans, Phase I Ozone Implementation Plan and 1996 and 1999 Transportation Conformity Budgets

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY37-202, FRL-6469-7]

Approval and Promulgation of Implementation Plans; New York 15

and 9 Percent Rate of Progress Plans, Phase I Ozone Implementation Plan

and 1996 and 1999 Transportation Conformity Budgets

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing action

on a State Implementation Plan revision submitted by New York which is

intended to meet several Clean Air Act requirements. EPA is proposing

approval of the 1990 base year ozone emission inventory (for all ozone

nonattainment areas in New York); the 1996 and 1999 ozone projection

emission inventories; demonstration that emissions from growth in

vehicle miles traveled will not increase motor vehicle emissions and,

therefore, offsetting measures are not necessary; modeling efforts

completed to date; transportation conformity budgets; photochemical

assessment monitoring stations network; and enforceable commitments.

EPA is also proposing

[[Page 59707]]

approval of New York's 15 Percent Rate of Progress Plan and the 9

Percent Reasonable Further Progress Plan. The intended effect of this

action is to approve programs required by the Clean Air Act which will

result in emission reductions that will help achieve attainment of the

one-hour national ambient air quality standard for ozone.

DATES: Comments must be received on or before December 3, 1999.

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

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

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

Copies of the New York submittals and EPA's Technical Support

Document are available at the following addresses for inspection during

normal business hours:

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

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

New York State Department of Environmental Conservation, Division of

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

FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch,

Environmental Protection Agency, 290 Broadway, 25th Floor, New York,

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is required by the Clean Air Act and how does it apply to

New York?

II. What was included in New York's submittal?

A. What emission inventories were included in New York's

submittal and do they meet EPA's guidance?

1. 1990 base year inventory

2. 1996 and 1999 projection year inventories for the New York

Metropolitan Area

B. What are the Act requirements for an approvable 15 Percent

Rate of Progress Plan and what does New York's 15 Percent Plan

consist of?

C. What are the Act requirements for an approvable 9 Percent

Reasonable Further Progress Plan and what does New York's 9 Percent

Plan consist of?

IV. What other Phase I required elements has New York satisfied in

their submittal?

A. What modeling work was submitted by New York?

B. Did New York satisfy the Ozone Transport Commission NOx MOU

requirement?

C. What commitments to future actions were included in New

York's submittal?

D. Has New York satisfied the Phase I Clean Fuel Fleet

requirement?

E. Does New York need to offset growth in emissions from growth

in VMT?

F. Has New York submitted an approvable photochemical assessment

monitoring station network?

V. Are New York's transportation conformity budgets approvable?

VI. What are EPA's Phase I Findings?

VII. What are EPA's Conclusions?

VIII. Administrative Requirements

A. Executive Order 12866

B. Executive Orders on Federalism

C. Executive Order 13045

D. Executive Order 13084

E. Regulatory Flexibility Act

F. Unfunded Mandates

I. What Is Required by the Clean Air Act and How Does It Apply to

New York?

Section 182 of the Clean Air Act (Act) specifies the required State

Implementation Plan (SIP) submissions and requirements for areas

classified as nonattainment for ozone and when these submissions and

requirements are to be submitted to EPA by the states. EPA has issued

the ``General Preamble for the Implementation of Title I of the Clean

Air Act Amendments of 1990'' (General Preamble) describing in detail

EPA's preliminary views on how EPA intends to review SIPs and SIP

revisions submitted under Title I of the Act, [see generally 57 FR

13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)]. Because EPA

is describing its interpretations here only in broad terms, the reader

should refer to the General Preamble for a more detailed discussion of

the interpretations of Title I advanced in today's proposal and the

supporting rationale.

New York was originally divided into six ozone nonattainment areas.

These areas were the Albany-Schenectady-Troy Area, Buffalo-Niagara

Falls Area, Essex County Area, Jefferson County Area, Poughkeepsie Area

and the New York-Northern New Jersey-Long Island Area. The New York-

Northern New Jersey-Long Island Area is classified as a severe ozone

nonattainment area. The New York portion of the New York-Northern New

Jersey-Long Island Area is composed of New York City and the counties

of Nassau, Suffolk, Westchester and Rockland, referred to as the New

York City Metropolitan Area (NYCMA), and certain towns in Orange

County-Blooming Grove, Chester, Highlands, Monroe, Tuxedo, Warwick and

Woodbury, referred to as the Lower Orange County Metropolitan Area

(LOCMA). The primary focus of this Federal Register action is the New

York portion of the New York-Northern New Jersey-Long Island Area

(referred to as the New York Metropolitan Area). EPA is also acting on

the 1990 base year emission inventories for the five upstate areas

identified above.

II. What Was Included in New York's Submittal?

On February 2, 1999, Deputy Commissioner Johnson of the New York

State Department of Environmental Conservation (NYSDEC) submitted to

EPA a revision to the SIP to meet requirements related to attainment of

the National Ambient Air Quality Standards (NAAQS) for ozone, referred

to as Phase I. New York's submittal revised the previously submitted 15

Percent Rate of Progress (ROP) Plan dated November 15, 1993 and

September 4, 1997. In addition, these revisions are intended to fulfill

EPA's Phase I requirement (``Ozone Attainment Demonstrations,'' March

2, 1995 memo from Mary Nichols) and includes the following: revisions

of the 1990 base year ozone emission inventory (for areas designated

nonattainment for ozone since 1991 in New York); the 1996 and 1999

ozone projection emission inventories; 9 Percent Reasonable Further

Progress (RFP) Plan; contingency measures; demonstration that emissions

from growth in vehicle miles traveled will not increase motor vehicle

emissions and, therefore, offsetting measures are not necessary;

modeling efforts completed to date; enforceable commitments for Phase

II; photochemical assessment monitoring stations network; and

transportation conformity budgets. EPA will be acting on the

contingency measures in a separate Federal Register notice.

A. What Emission Inventories Were Included in New York's Submittal and

Do They Meet EPA's Guidance?

New York's submittal included revisions of the 1990 base year ozone

emission inventory (for areas designated nonattainment for ozone since

1991 in New York) and the 1996 and 1999 ozone projection emission

inventories.

1. 1990 Base Year Inventory

Based on EPA's review, New York has satisfied all of EPA's

requirements of providing a comprehensive, accurate, and current

inventory of actual emissions in the six ozone nonattainment areas. A

more detailed discussion of how the emission inventory was reviewed and

the results are presented in the technical support document (TSD). A

summary of EPA's review is given below:

--New York submitted a final Inventory Preparation Plan for the

``Development of Ozone/CO SIP Inventory of Base Year 1990 Emissions,''

September 24, 1992. This Plan contained a Quality Assurance

[[Page 59708]]

Plan which was implemented and documented.

--The inventory is well documented. New York provided documentation

detailing the methods used to develop emissions estimates for each

category. In addition, New York identified the sources of data used in

developing the inventory.

--The point and area source inventories are complete and were prepared/

calculated in accordance with EPA guidance.

--New York biogenic emissions were prepared/calculated using the July

1991 version of PC-BEIS according to current EPA guidance.

--The method used to develop vehicle miles traveled (VMT) estimates was

in accordance with EPA guidance and was adequately described and

documented in the inventory report.

--The most current version of the Mobile model was used correctly for

each of the eight vehicle classes.

--Emission estimates for the non-road mobile source categories were

correctly prepared according to EPA guidance.

The revisions have been made in accordance with EPA guidance.

Therefore, EPA is proposing to approve the revisions to the 1990 base

year volatile organic compounds (VOC), nitrogen oxides (NOx) and carbon

monoxide (CO) emission inventories.1

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

\1\ EPA's March 1991 guidance document, ``Emission Inventory

Requirements for Ozone State Implementation Plans'' (EPA-450/4-91-

010), requires the base year inventory summary contain emission

estimates of VOC, NOx and CO.

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

A summary of the emission inventories broken down by point, area,

biogenic, on-road, and non-road mobile sources are presented in the

Tables

1A-1F.

Table 1A.--New York Metropolitan Area 1990 Base Year Ozone Season Emissions in Tons/Day

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

Point On-road Non-road

Pollutant Area source source mobile mobile Biogenic Total

emissions emissions emissions emissions emissions

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

VOC............................... 381 103 484 167 103 1,238

NOX............................... 59 286 400 178 N/A 923

CO................................ 40 45 3,890 1,333 N/A 5,308

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

Table 1B.--Albany-Schenectady-Troy Area 1990 Base Year Ozone Season Emissions in Tons/Day

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

Point On-road Non-road

Pollutant Area source source mobile mobile Biogenic Total

emissions emissions emissions emissions emissions

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

VOC............................. 48.27 78.66 54.40 23.5 222.11 426.79

NOX............................. 4.84 73.34 73.10 23.35 N/A 174.63

CO.............................. 3.16 15.04 474.6 174.32 N/A 667.12

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

Table 1C.--Buffalo-Niagara Falls Area 1990 Base Year Ozone Season Emissions in Tons/Day

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

Point On-road Non-road

Pollutant Area source source mobile mobile Biogenic Total

emissions emissions emissions emissions emissions

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

VOC............................... 67.11 156.45 50.5 32.70 61.06 367.85

NOX............................... 9.54 116.53 75.3 29.55 N/A 230.92

CO................................ 5.13 69.06 437.7 24.12 N/A 536.00

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

Table 1D.--Poughkeepsie Area 1990 Base Year Ozone Season Emissions in Tons/Day

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

Point On-road Non-road

Pollutant Area source source mobile mobile Biogenic Total

emissions emissions emissions emissions emissions

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

VOC.............................. 31.70 15.73 39.27 13.45 56.51 156.66

NOX.............................. 4.0 66.47 50.69 15.42 N/A 136.58

CO............................... 1.9 5.73 338.00 23.35 N/A 368.98

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

Table 1E.--Essex County Area 1990 Base Year Ozone Season Emissions in Tons/Day

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

Point On-road Non-road

Pollutant Area source source mobile mobile Biogenic Total

emissions emissions emissions emissions emissions

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

VOC.............................. 1.98 .29 2.97 .97 182.22 188.43

NOX.............................. .18 2.50 4.89 .83 N/A 8.4

CO............................... .36 1.45 25.06 7.61 N/A 34.48

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

[[Page 59709]]

Table 1F.--Jefferson County Area 1990 Base Year Ozone Season Emissions in Tons/Day

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

On-road Non-road

Pollutant Area source Point source mobile mobile Biogenic Total

emissions emissions emissions emissions emissions

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

VOC............................. 5.53 1.5 7.00 2.88 83.08 99.99

NOX............................. .56 3.43 12.6 2.69 N/A 19.28

CO.............................. .33 .23 61.90 21.72 N/A 84.18

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

2. 1996 and 1999 Projection Year Inventories for the New York

Metropolitan Area

A projection of 1990 VOC anthropogenic emissions to 1996 for the

New York Metropolitan Area is required to determine the reductions

needed for the 15 Percent ROP Plan. In addition, projection of the 1990

VOC and NOx anthropogenic emissions to 1999 are required to determine

the reductions needed for the 9 Percent RFP Plan with NOx substitution.

The 1996 and 1999 projection year emission inventories are calculated

by multiplying the 1990 base year inventory by factors which estimate

growth from 1990 to 1996 and 1990 to 1999. A specific growth factor for

each source type in the inventory is required since sources typically

grow at different rates.

The difference between the most current 1990 base year inventory

and the 1996 and 1999 projection inventories are the emissions growth

estimates. Based on the difference between the 1990 base year inventory

and the 1996 and 1999 projection year inventories, the total 1990-1996

and 1990-1999 VOC growth for the four source categories is estimated at

40 tons per day (tpd) and 81 tpd, respectively, in the New York

Metropolitan Area. The total 1990-1996 and 1990-1999 NOx growth for the

four source categories is estimated at 79 tpd and 125 tpd,

respectively, in the New York Metropolitan Area.

Projection Methodology. Point Sources. For the point source

category, New York projected 1990 base year emissions to 1996 and 1999

for each facility using Bureau of Economic Analysis (BEA) growth

indicators available from New York State at the two-digit Standard

Industrial Classification (SIC) Code level.

Since BEA growth indicators are one of the preferred growth

indicators to use, as outlined in ``Procedures for Preparing Emissions

Projections,'' July 1991, EPA finds New York's 1996 and 1999 point

source projection methodologies to be acceptable.

Area Sources. For the area source category, New York projected

emissions from 1990 to 1996 and 1999 using population and BEA growth

rates where applicable. This is in accordance with EPA's recommended

growth indicators for projecting emissions for area source categories

outlined in ``Procedures for Preparing Emissions Projections,'' July

1991.

Non-Road Mobile Sources. For the non-road mobile source category,

New York projected emissions utilizing EPA's guidance documents. New

York included reductions anticipated from reformulated gasoline and new

engine standards. Population growth rates were utilized to project the

subcategory emissions except for light commercial, industrial and

construction equipment which used the BEA growth rates. EPA finds New

York's methodology for projecting nonroad mobile sources to be

acceptable.

On-Road Mobile Sources. For the highway mobile source category, the

primary indicator and tool for developing on-road mobile growth and

expected emissions are VMT and EPA's mobile emissions model Mobile 5b.

1996 and 1999 VOC and NOX emission factors were generated by

Mobile 5b and applied to the New York State Department of

Transportation (NYSDOT) VMT projections.

NYSDOT projected VMT by county and functional roadway

classification based upon linear regression of historical Highway

Performance Monitoring System (HPMS) VMT data. NYSDOT's method is in

accordance with EPA's recommended growth indicators for projecting

emissions for on-road mobile source categories outlined in ``Procedures

for Preparing Emissions Projections,'' July 1991.

The 1996 and 1999 projection year emission inventories were

calculated in accordance with EPA guidance. Therefore, EPA is proposing

to approve the 1996 and 1999 projection year inventories. A more

detailed discussion of how the emission inventories were reviewed and

the results are presented in the TSD.

Tables 2A and 2B show 1996 and 1999 VOC and NOX

projection emission inventories using the aforementioned growth

indicators/methodologies.

Table 2A.--New York Metropolitan Area 1996 Projection Year Emissions Inventory in Tons/Day

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

Point On-road Non-road

Pollutant Area source source mobile mobile Total

emissions emissions emissions emissions emissions

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

VOC............................................ 388 109 506 172 1,175

NOX............................................ 61 311 443 187 1,002

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

Table 2B.--New York Metropolitan Area 1999 Projection Year Emissions Inventory in Tons/Day

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

Point On-road Non-road

Pollutant Area source source mobile mobile Total

emissions emissions emissions emissions emissions

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

VOC............................................ 393 113 534 176 1,216

NOX............................................ 62 327 467 192 1,048

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

[[Page 59710]]

B. What Are the Act Requirements for an Approvable 15 Percent Rate of

Progress Plan and What Does New York's 15 Percent Plan Consist of?

Section 182(b)(1) of the Act as amended in 1990 requires ozone

nonattainment areas with classifications of moderate and above to

develop plans to reduce area-wide VOC emissions by 15 percent from a

1990 adjusted baseline. The plans were to be submitted by November 15,

1993 and the reductions were required to be achieved within six years

of enactment or by November 15, 1996. The Act also sets limitations on

the creditability of certain types of reductions. Specifically, states

cannot take credit for reductions achieved by Federal Motor Vehicle

Control Program (FMVCP) measures (new car emissions standards)

promulgated prior to 1990 and Reid Vapor Pressure (RVP) programs

promulgated prior to 1990. Furthermore, the Act does not allow credit

for corrections to vehicle Inspection and Maintenance Programs (I/M) or

corrections to reasonably available control technology (RACT) rules

(RACT fix-ups) that were required to have been made to meet

requirements in effect prior to 1990.

The target emission reductions were calculated in accordance with

EPA guidance. The reader is referred to ``Guidance On The Adjusted Base

Year Emissions Inventory and The 1996 Target For The 15 Percent Rate of

Progress Plans,'' (EPA-452/R-92-005). New York's 15 Percent ROP Plan is

summarized in Table 3A.

The reader should note that the differences in VOC emissions

between 1990 and 1996, in the New York Metropolitan Area as depicted in

Tables 1A and 2A, are not the same as the emission reductions for the

same time period depicted in Table 3A, Summary of 15 Percent ROP Plan.

This is because the emissions changes between 1990 and 1996 have been

adjusted for purposes of the 15 Percent ROP Plan to eliminate emission

changes not creditable according to the Act. These adjustments are

explained in detail in the previously referenced guidance.

Table 3A.--Summary of 15 Percent ROP Plan

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

New York

metropolitan

area VOC

(tons/day)

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

Required VOC reductions to meet 15 Percent Plan......... 197.2

Creditable Reductions--Mobile Source control measures:

Non-Road:

Reformulated Gasoline........................... 4.0

New Engine Standard............................. 12.0

On-Road:

Reformulated Gasoline........................... 56.6

Tier I--New Vehicle Program..................... 4.1

Low Emission Vehicle............................ 3.3

Enhanced Inspection & Maintenance, July 1999 22.2

Emission Reduction Using Phase-in Cutpoints....

Pressure/Purge Programs July 1999 Emission 19.8

Reduction......................................

Full Inspection Cycle Completed in November 1999 30.6

Stationary Source control measures: Parts 212, 228, 229, 24.34

234--VOC RACT..........................................

Area Source control measures:

Auto Body Refinishing............................... 5.7

Commercial Bakeries (Part 212)...................... 2.1

Consumer Products................................... 12.1

Graphic Art Facilities.............................. 0.7

Stage II for 1.2 to 2.5K Gal/Yr Stations............ 1.6

Stage II for LOCMA.................................. 0.4

Transit/Loading Losses.............................. 0.5

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

Total VOC reductions............................ 200.04

===============

Surplus................................................. 2.84

Reductions not credited in today's action--Stationary 2.27

Source control measures: Capped/shut down Emissions....

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

Measures Achieving the Projected Reductions. New York has provided

a plan to achieve the reductions required for the New York Metropolitan

Area. The following is a concise description of each control measure

New York used to achieve emission reduction credit within its 15

Percent ROP Plan. All of the New York measures have been adopted and

submitted as SIP revisions. EPA has previously approved most of the

control measures, including interim approval of the enhanced vehicle I/

M program.

Mobile source control measures. Reformulated Gasoline. Section

211(k) of the Act requires that after January 1, 1995 in severe and

above ozone nonattainment areas, only reformulated gasoline (RFG) be

sold or dispensed. RFG is reformulated to burn cleaner and produce

fewer evaporative emissions. Specifically, RFG Phase I (1995--1999)

must achieve reductions in VOCs of 15 to 17 percent and no increase in

NOx from 1990 baseline gasoline emission levels. RFG Phase II (2000+)

must achieve reductions in VOCs of 25 to 29 percent and reductions in

NOx of five to seven percent from 1990 baseline emissions. EPA agrees

with the reductions toward New York's ROP that were calculated due to

the sale of RFG for both on-road and off-road use.

New Engine Standards. In November 1994, EPA provided guidance

entitled, ``Future Nonroad Emission Reduction Credits for Court-Ordered

Nonroad Standard'' for calculating future years' emission benefits from

new engines proposed standards. The small gasoline engine standards,

except recreational marine vessels, are being implemented in two phases

starting with 1997 engine model year for both VOC and NOx and

additional phase II exhaust and evaporative emission standards

effective by 2001 engine model year. On

[[Page 59711]]

September 7, 1994, EPA issued a memo entitled, ``Advance Emission

Reduction Credits for Small Nonroad Gasoline Engines'', which stated

that advance reductions are available starting in 1994 based upon

manufacturers introducing lower-emitting small gasoline engines into

the market earlier than required by EPA's phase I rule. New York

calculated the expected emission reductions from the proposed new

engine standards for VOC and NOx based upon EPA's guidance. Further, on

July 3, 1995 (60 FR 34581), EPA promulgated the first phase and on

March 30, 1999 (64 FR 15208), EPA promulgated the second phase of the

regulations to control emissions from new nonroad spark-ignition

engines. These regulations are contained in the Code of Federal

Regulations (CFR), Title 40, ``Part 90--Control of Emissions From

Nonroad Spark-Ignition Engines.''

EPA has determined that the first phase of the new nonroad

standards will cause a reduction of VOC emissions by 13.1 percent in

1997, 19.5 percent in 1998 and 23.9 percent in 1999 nationally. New

York's estimated emission reductions, based upon EPA's earlier

guidance, is conservative with respect to the reductions estimated by

EPA in the 1995 Phase I regulations for new nonroad spark-ignition

engines. EPA agrees with New York's calculated emission reductions

associated with the Phase I new engine standards.

Tier I--New Vehicle Standards & Low Emission Vehicle Program. EPA

promulgated standards for 1994 and later model year light-duty vehicles

and light-duty trucks (56 FR 25724). Since the standards were adopted

after the Clean Air Act Amendments of 1990, the resulting emission

reductions are creditable toward the 15 percent reduction goal. On

April 28, 1992, New York adopted revisions to Part 218, ``Emission

Standards for Motor Vehicles and Motor Vehicle Engines'' to incorporate

the California low emission vehicle (LEV) standards as a part of New

York's new motor vehicle emission control program. The New York State

effective date as a result of the revisions to Part 218 was November

22, 1992. On January 6, 1995 (60 FR 2025), EPA published a final notice

approving the revisions to Part 218 as a revision to the SIP. EPA

agrees that the State's adopted LEV program will provide additional

reductions which can be attributed to New York's 1996 ROP plan. EPA

agrees with the emission reductions calculated by New York due to

vehicle turnover combined with the FMVCP and the LEV program.

Enhanced I/M. On March 27, 1996 New York submitted revisions to its

existing Inspection and Maintenance (I/M) program to satisfy applicable

requirements of the Act and the 1995 National Highway Systems

Designation Act (NHSDA). On November 27, 1996 (61 FR 60242) EPA

proposed conditional interim approval of this submittal. The reader is

referred to that proposal for the details on the enhanced I/M program

and EPA's findings. Conditional approval was proposed because the March

27, 1996 New York submittal did not include (1) an indication of when

the Consumer Price Index adjustments to the $450 repair cost waiver

would take effect; (2) the modeling demonstrating that the proposed I/M

program would achieve the required emission reductions; and (3) written

test procedures, pass/fail standards, and equipment specifications.

That notice called for New York to commit within 30 days to correct

these major deficiencies in the submittal as identified above, by

specific dates. On December 20, 1996, New York committed to correct the

deficiencies by the timelines stipulated in EPA's November 27, 1996

proposed conditional interim approval. New York has since submitted the

necessary material as committed to in the December 20, 1996 letter. On

October 24, 1997 (62 FR 55343) EPA granted a final interim approval of

New York's enhanced I/M program under section 110 which strengthens the

SIP, as well as an interim approval under section 348 of the NHSDA.

Interim approval was granted for 18 months, or until May 24, 1999, for

New York to correct six minor, or de minimus, deficiencies related to

the Act requirements for enhanced I/M and provide EPA with an enhanced

I/M program effectiveness demonstration. The reader is referred to

EPA's October 24, 1997 interim approval for the details on the enhanced

I/M program supplemental submittals and EPA's findings.

On May 20, 1999, New York submitted to EPA a final revision to the

New York enhanced I/M program which addressed the six minor, or de

minimus, deficiencies relating to the Act requirements for enhanced I/

M. In addition, on May 24, 1999 New York submitted to EPA an enhanced

I/M program evaluation report/program effectiveness demonstration. EPA

is in the process of reviewing these submittals for technical adequacy

and approvability and will be acting on these submittals in a separate

Federal Register notice.

By today's action, EPA proposes to approve emission credits for the

15 Percent ROP and 9 Percent RFP Plans, pending EPA's verification of

New York's enhanced I/M program's effectiveness, under section 348 of

the NHSDA. If EPA determines New York's enhanced I/M program

effectiveness demonstration indicates a shortfall in emission

reductions compared to the emission reductions credited in the 15

Percent ROP and/or 9 Percent RFP Plans, EPA will propose to disapprove

the 15 Percent ROP and/or 9 Percent RFP Plans. EPA final action will be

based on EPA's evaluation of New York's demonstration of the enhanced

I/M program's effectiveness. If New York's demonstration indicates a

shortfall in emission reductions compared to the emission reductions

credited in the 15 Percent ROP and 9 Percent RFP Plans, New York would

need to find additional emission reduction credits. Failure of New York

to make up for an emission shortfall may subject them to sanctions and

imposition of a Federal Implementation Plan. The credits provided by

the enhanced I/M program for those plans may be adjusted based on EPA's

evaluation of the enhanced I/M Program's performance.

Enhanced I/M ``as soon as practicable''. Section 182(b)(1) of the

Act requires that states containing ozone nonattainment areas

classified as moderate or above prepare SIPs that provide for a 15

percent VOC emissions reduction by November 15, 1996. Most of the 15

Percent ROP Plans originally submitted to EPA contained enhanced I/M

programs because this program achieves more VOC emission reductions

than most, if not all other, control strategies. However, many states

became concerned over the cost and convenience issues related to

enhanced I/M programs as they were originally envisioned.

In a response to these concerns in September 1995, EPA finalized

revisions to its enhanced I/M rule allowing states significant

flexibility in designing I/M programs appropriate for their needs.

Subsequently, Congress enacted the NHSDA, which provided states

significantly more flexibility in determining the design of their

respective enhanced I/M programs. The substantial lead time required

for states to redesign and set up the necessary infrastructure of

enhanced I/M programs in accordance with the NHSDA precluded them from

obtaining emission reductions from such revised programs by November

15, 1996.

Given the heavy reliance by many states upon enhanced I/M programs

to help achieve the 15 percent VOC emissions reduction required under

section 182(b)(1), and the recent NHSDA and regulatory changes

[[Page 59712]]

regarding enhanced I/M programs, EPA recognized that it was no longer

possible for many states to achieve the portion of the 15 percent

reductions that is attributed to I/M by November 15, 1996. Under these

circumstances, disapproval of the 15 Percent ROP Plans would serve no

purpose. Consequently, under certain circumstances, EPA will propose to

allow states that pursue redesign of enhanced I/M programs to receive

emission reduction credit from these programs within their 15 Percent

ROP Plans, even though the emissions reductions from the enhanced I/M

program will occur after November 15, 1996.

Specifically, EPA can propose approval of 15 Percent ROP Plans if

the emissions reductions from the revised, enhanced I/M programs, as

well as from the other 15 Percent ROP Plan measures, will achieve the

15 percent level as soon as practicable after November 15, 1996. To

make this ``as soon as practicable'' determination, EPA must determine

that the SIP contains all VOC control strategies that are practicable

for the nonattainment area in question and that meaningfully accelerate

the date by which the 15 percent level is achieved. EPA does not

believe that measures meaningfully accelerate the 15 percent date if

they provide only an insignificant amount of reductions.

In the case of New York, they have submitted a 15 Percent ROP Plan

that would achieve the amount of reductions needed from enhanced I/M by

November 15, 1999. New York has submitted a 15 Percent ROP Plan that

achieves all other reductions by 1996. In addition, EPA is pursuing

federal rulemaking on a national scope which will result in additional

emission reductions. EPA proposes to determine that this SIP does

contain all measures, including enhanced I/M, that achieves the

required reductions as soon as practicable.

EPA has examined other potentially available SIP measures to

determine if they are practicable for New York and if they would

meaningfully accelerate the date by which the area reaches the 15

percent level of reductions. In most cases New York has already adopted

and implemented stationary control measures that other states are

considering or which other states have included in their 15 Percent ROP

Plans. Moreover, there are no measures that would achieve the 15

Percent reduction faster than the measures in New York's SIP. EPA

proposes to determine that the SIP does contain the appropriate

measures.

Pressure/Purge Programs. The 1992

I/M regulation requires that the enhanced I/M program include measures

to curtail evaporative emissions from vehicle fueling systems. One such

measure includes a functional check of the fuel tank integrity through

pressurization. For a fraction of the emission reduction credit, EPA

later allowed use of a test that checks only the integrity of the

vehicle gas cap. New York has opted to perform this version of the test

and submitted calculated emission reductions based on its use.

Full Inspection Cycle. In November 1998, New York began mandatory

testing under the new inspection program. Although initial operating

problems were identified, most of the vehicles covered under the

program have thus far been tested. A legal challenge to the State's

authority by non-implementing stations briefly allowed the use of the

old test procedure during the early part of 1999. However, only a small

portion of the covered vehicles was affected and New York estimates

that the vast majority of the vehicles will have been tested by

November 1999. Pending the verification of New York's enhanced

I/M program's effectiveness, this will allow New York to meet the

emission credit portion calculated in its 15 percent plan submittal.

Stationary source control measures. Parts 212, 228, 229, 234--VOC

RACT. New York has submitted adopted revisions to Part 212, ``General

Process Emission Sources'' which expanded the coverage of the

regulation to require RACT on all major VOC process sources not covered

in EPA issued control techniques guidelines (CTG) documents (referred

to as ``non-CTG major sources'') and NOX process sources

throughout New York State and those not previously regulated in the New

York Metropolitan Area. The New York State effective date as a result

of the amendments to Part 212 was September 22, 1994. Although Part 212

is pending EPA rulemaking action, EPA agrees with the reductions

projected in the New York 15 Percent ROP Plan due to the implementation

of this rule.

New York submitted adopted revisions to Part 228, ``Surface Coating

Processes,'' Part 229, ``Petroleum and Volatile Organic Liquid

Storage,'' and Part 234, ``Graphic Arts'' which became New York State

effective on April 4, 1993. These revisions extended the applicability

of New York's RACT rules for sources covered by pre-enactment CTGs

statewide and also added control requirements for some non-CTG RACT

sources. On December 23, 1997 (62 FR 67004), EPA published a final

notice approving these rules as a revision to the SIP. EPA agrees with

the reductions projected in the New York 15 Percent ROP Plan due to the

implementation of these rules.

Area source control measures: Auto Body Refinishing. On September

11, 1998 (63 FR 48806), EPA promulgated a national rule to control VOC

emissions from solvent evaporation through reformulation of coatings

used in auto body refinishing processes. These coatings are typically

used by small businesses, or by vehicle owners. VOC emissions emanate

from the evaporation of solvents used in the coating process. Use of

emissions reductions from EPA's national rule is creditable toward ROP

and RFP plans. EPA agrees with the reductions projected in the New York

15 Percent ROP Plan due to the implementation of this rule.

Commercial Bakeries (Part 212). As stated above, New York submitted

adopted revisions to Part 212 ``General Process Emission Sources.''

Commercial bakeries had previously been exempt from the control

requirements of Part 212, however, the revisions to Part 212 subject

commercial bakeries to control requirements and includes a provision

which sets forth a deadline in which bakeries must apply for a

certificate to operate. Although Part 212 is pending EPA rulemaking

action, EPA agrees with the reductions projected in the New York 15

Percent ROP Plan due to the implementation of this rule.

Consumer Products. On September 11, 1998 (63 FR 48819) EPA

promulgated a national rule to control VOC emissions from household

consumer products, such as cleaning products, personal care products,

and a variety of insecticides. EPA's regulation is based on best

available controls, as defined under the Act, and sets specific VOC

content limits on 24 consumer product categories (some product

categories are divided into subcategories). VOC limits would be met by

the pollution prevention method of product reformulation. Use of

emissions reductions from EPA's national rule is creditable toward ROP

and RFP plans. EPA agrees with the reductions projected in the New York

15 Percent ROP Plan due to the implementation of this rule.

Graphic Arts Facilities (Part 234). As stated above, New York

submitted adopted revisions to Part 234, ``Graphic Arts'', which became

New York State effective on April 4, 1993. These amendments extended

the applicability of regulations currently in force in the NYCMA to the

major VOC facilities in LOCMA. Control requirements for screen printing

operations and

[[Page 59713]]

lithographic printing processes (both which are non-CTG categories)

have been mandated. Part 234 also has opacity limitations and

provisions for the handling, storage, and disposal of VOC. EPA agrees

with the reductions projected in the New York 15 Percent ROP Plan due

to the implementation of this rule.

Stage II for 1.2 to 2.5K Gal/Yr Stations (Part 230). New York

submitted adopted revisions to Part 230 ``Gasoline Dispensing Sites and

Transport Vehicles'' which became New York State effective on September

22, 1994. The revisions to Part 230 lowered the applicability of the

Stage II gasoline vapor recovery systems, which capture gasoline vapors

during the refueling of motor vehicles, within the NYCMA. On April 30,

1998 (63 FR 23665), EPA published a final notice approving the

revisions to Part 230 into the SIP. EPA agrees with the reductions

projected in the New York 15 Percent ROP Plan due to the implementation

of this rule.

Stage II for LOCMA (Part 230). New York submitted adopted revisions

to Part 230 ``Gasoline Dispensing Sites and Transport Vehicles'' which

became New York State effective on September 22, 1994. The revisions to

Part 230 expanded the applicability of all the gasoline vapor control

measures which are required in the NYCMA, into the LOCMA and expanded

the applicability to cover additional gas stations. On April 30, 1998

(63 FR 23665), EPA published a final notice approving the revisions to

Part 230 into the SIP. EPA agrees with the reductions projected in the

New York 15 Percent ROP Plan due to the implementation of this rule.

Transit/Loading Losses. New York submitted adopted revisions to

Part 230 ``Gasoline Dispensing Sites and Transport Vehicles'' which

became New York State effective on September 22, 1994. The revisions to

Part 230 expanded the requirements of Stage I gasoline vapor recovery

systems to gasoline dispensing facilities located in the LOCMA. All

gasoline transport vehicles which convey gasoline either to or from

gasoline loading terminals or gasoline bulk plants are to be equipped

with a vapor control system or equivalent method. On April 30, 1998 (63

FR 23665), EPA published a final notice approving the revisions to Part

230 into the SIP. EPA agrees with the reductions projected in the New

York 15 Percent ROP Plan due to the implementation of this rule.

Measures Not Creditable in Today's Action. Capped/shutdown

emissions. Certain facilities chose permit limits on their hours of

operation to ``cap'' their facilities potential emissions below an

annual level which reflected their actual hours of operation and

emissions. These ``capping out'' provisions are included in a number of

New York VOC and NOX RACT regulations. The ``capping out''

provision exempts the facility from RACT requirements and/or Title V

permitting requirements. In the projection inventory, New York adjusted

emissions to account for those facilities that have ``capped out''. In

addition, New York adjusted emissions to account for those facilities

that have ceased or shutdown operations since the 1990 base year

emissions inventory was compiled.

While EPA acknowledges that capped/shutdown facilities may have

resulted in emission reductions, the documentation New York provided is

not sufficient to determine whether these reductions are real,

permanent and enforceable. Further, without this documentation, EPA is

unable to verify whether the emission reduction credits associated with

capped/shutdown facilities are not ``double counted'' or, more simply,

used more than once (i.e., reductions cannot be used for offsets and to

meet the 15 percent ROP requirement). Because of the uncertainties

associated with both capped and shutdown emissions, EPA is considering

these emissions reductions to be noncreditable at this time with

respect to New York's Phase I Ozone SIP.

15 Percent ROP Plan Evaluation. New York has identified the control

measures necessary for achieving the required emission reductions and

all the measures have been adopted and implemented. EPA is proposing to

find that the 15 Percent ROP Plan contains the necessary measures as

identified in Table 3A to achieve the required emission reductions. The

Plan also satisfies the requirement of achieving these reductions ``as

soon as practicable'' and there are no remaining measures which could

be implemented any sooner to offset the delay in the enhanced I/M

program. Therefore, EPA proposes to approve emission credits for the 15

Percent ROP, pending EPA's verification of New York's enhanced

I/M program's effectiveness. If EPA determines New York's enhanced I/M

program effectiveness demonstration indicates a shortfall in emission

reductions compared to the emission reductions credited in the 15

Percent ROP Plan, EPA will propose to disapprove the 15 Percent ROP

Plan. EPA final action will be based on EPA's evaluation of New York's

demonstration of the enhanced I/M program's effectiveness.

C. What Are the Act Requirements for an Approvable 9 Percent Reasonable

Further Progress Plan and What Does New York's 9 Percent Plan Consist

Of?

Section 182(c)(2)(B) of the Act requires ozone nonattainment areas

with classifications of serious and above to develop plans to reduce

area-wide VOC emissions by 3 percent per year averaged over the next

three-year period (1997-1999) from a 1990 baseline. This is referred to

as the 9 Percent RFP Plan. The plan was to be submitted by November 15,

1994 and the reductions are required to be achieved by November 15,

1999. The Act also sets limitations on the creditability of certain

types of reductions.

The target emission reductions were calculated in accordance with

EPA guidance. The reader is referred to ``Guidance On The Post 1996

Rate of Progress Plan and the Attainment Demonstration,'' (EPA-452/R-

93-015).

Section 182(c)(2)(C) of the Act allows NOX reductions to

be substituted for VOC reductions for RFP demonstrations provided

states demonstrate through modeling that NOX reductions are

needed in the nonattainment area. New York has shown that

NOX reductions will contribute toward attaining the ozone

standard (See section IV. A., Modeling discussion below). New York has

demonstrated that every ton of NOX is equivalent to

approximately 1.2 tons of VOC in the New York Metropolitan Area on

percent of total inventory basis. Table 3B includes columns showing the

VOC and NOX reductions that will result from the

implementation of the control measures.

Table 3B.--Summary of New York's 9 Percent RFP Plan

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

New York metropolitan area

(tons/day)

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

VOC \2\ NOX \2\

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

Required VOC reductions needed to meet 9 130.76 ..............

Percent Plan

[[Page 59714]]

Creditable Reductions--1996 Surplus..... 5.11 ..............

Mobile source control measures:

Non-Road:

Reformulated gasoline and New 9 5

Engine Standards...............

On-Road:

Reformulated gasoline........... 4 3.9

Tier I--New Vehicle Program..... 20.3 43.4

Low Emission Vehicle............ 3.2 7.4

Enhanced Inspection & .............. 22.2

Maintenance July 1999 Emission

Reduction Using Phase-in

Cutpoints......................

Full Inspection Cycle Completed .............. 15.3

in November 1999...............

Stationary source control measures:

Parts 212, 228, 229--VOC RACT....... 0.32 ..............

MACT (Federal Measures)............. 3.19 ..............

OTC Phase II Baseline (Part 227-3).. .............. 135.65

Part 227-2.......................... .............. 6.89

Area source control measures:

Consumer Products................... 0.1 ..............

Hospital Sterilizers................ 0.1 ..............

Municipal Solid Waste Landfills..... 4.9 ..............

Surface Cleaning.................... 18.3 ..............

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

Total reductions................ 68.52 \3\ 239.74

===============================

VOC Shortfall........................... 62.24 ..............

VOC and NOX Equivalent Surplus.......... 75.44 \4\ 62.87

Reductions not credited in today's 0.15 2.95

action--Capped/Shutdown Emissions......

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

\2\ VOC emission reductions claimed occur from 1997 through 1999. NOX

emission reductions claimed occur from 1990 through 1999.

\3\ Of the available 239.74 tpd NOX emissions reductions credits, 125

tpd are used to meet the growth in NOX emissions and 51.87 tpd to

cover the VOC shortfall (51.87 tpd of NOX is equivalent to 62.24 tpd

VOC), 62.87 tpd NOX are surplus.

\4\ 62.87 tons/day of NOX surplus converts to 75.44 tons/day of VOC

equivalent in the New York Metropolitan Area.

Measures Achieving the Projected Reductions. New York has provided

a plan to achieve the reductions required for the New York Metropolitan

Area. The following is a concise description of each control measure

New York used to achieve the emission reduction credit within its 9

Percent RFP Plan. All of the State's measures used in the 9 Percent RFP

Plan have been adopted and submitted as SIP revisions. EPA has

previously approved most of the control measures, including interim

approval of the enhanced vehicle I/M program.

Mobile Source Measures: New Engine Standard. This is the same

measure as contained in New York's 15 Percent ROP Plan except New

York's 9 Percent RFP Plan is only taking the additional VOC credit that

would be generated for the years 1997-1999 and utilizing the

substitution of the NOX emission reduction credits generated

for the years 1990-1999. EPA agrees with the calculated emission

reductions associated with the New Engine Standard.

Reformulated Gasoline. This is the same measure as contained in New

York's 15 Percent ROP Plan except New York's 9 Percent RFP Plan is only

utilizing the substitution of the NOX emission reduction

credits generated for the years 1990-1999. EPA agrees with the

calculated emission reductions associated with reformulated gasoline.

Enhanced Inspection and Maintenance. This is the same measure as

contained in New York's 15 Percent ROP Plan except New York's 9 Percent

RFP Plan is utilizing the substitution of the NOX emission

reduction credits generated for the years 1990-1999. See above

discussion for EPA's action on New York's enhanced I/M emission credits

for the 9 Percent RFP Plan.

Low Emissions Vehicle Program. This is the same measure as

contained in New York's 15 Percent ROP Plan except New York's 9 Percent

RFP Plan is utilizing the substitution of the NOX emission

reduction credits generated for the years 1990-1999. EPA agrees with

the calculated emission reductions associated with New York's low

emission vehicle program.

Stationary Source Control Measures. Parts 212, 228, 229--VOC RACT.

This is the same measure as contained in New York's 15 Percent ROP Plan

except New York's 9 Percent RFP Plan is only taking the additional VOC

credit that would be generated for the years 1997-1999. EPA agrees with

the calculated emission reductions associated with these VOC RACT

measures.

OTC Phase II Baseline (Part 227-3)--NOX MOU/

NOX RACT. On January 12, 1999, New York adopted revisions to

Part 227-3 ``Pre 2003 Nitrogen Oxides Emissions Budget and Allocation

Program,'' which incorporate the NOX MOU requirements. The

OTC NOX MOU calls for states to reduce NOX

emissions from boilers and indirect heat exchangers with heat inputs

greater than 250 million BTU per hour. These emission reductions will

be realized in two phases, first in 1999 and again in 2003. Part 227-3

became effective on March 5, 1999 and sources are required to be in

compliance with the first phase by May 1, 1999. On April 29, 1999,

NYSDEC submitted to EPA a SIP revision which included the revisions to

Part 227-3. EPA will be acting on the April submittal in the near

future. EPA agrees with the calculated emission reductions associated

with this NOX RACT measure, however, only the first phase of

reductions will be creditable towards New York's 9 Percent RFP Plan.

Part 227-2--NOX RACT. On January 19, 1994 and January

27, 1999, New York adopted revisions to Part 227-2, ``Stationary

Combustion Installations'' to comply with the Act provisions to

implement NOX RACT. On April 29, 1999, NYSDEC submitted to

EPA a SIP

[[Page 59715]]

revision which included the revisions to Part 227-2. Subpart 227-2

requires the following major source of NOX to achieve RACT

by May 31, 1995: (1) very large boilers (>250 mmBTU/hr); (2) large

boilers (>100-250 mmBTU/hr); (3) Mid-size boilers (>50-100 mmBTU/hr);

(4) small boilers (X RACT measure.

MACT (Federal Measures). For the 1999 projected emissions

reductions, VOC emissions reductions from specific source categories

were adjusted according to RACT (promulgated New York regulations

discussed previously) and Maximum Achievable Control Technology (MACT--

promulgated federal regulations regarding National Emission Standards

for Hazardous Air Pollutants). In most cases there was a New York rule

in place and RACT was applied. Where MACT was in effect and it was more

stringent than RACT, it took the place of RACT. In order for RACT or

MACT to have been creditable, it had to have a compliance date prior to

November 15 of the projection year (i.e., 1999 for creditable

reductions towards the 9 Percent RFP plan). New York took credit for

the following MACT standards in the 9 Percent RFP plan:

(1) 40 CFR 63.190 subpart I--Organic Hazardous Air Pollutants for

Certain Processes Subject to the Negotiated Regulation for Equipment

Leaks (59 FR 19402).

(2) 40 CFR 63.1310 subpart JJJ--Standards for Group IV Polymer and

Resins (61 FR 48208).

(3) 40 CFR 63.100 subpart F--Organic Hazardous Air Pollutants From

the Synthetic Organic Chemical Manufacturing Industry (59 FR 19402).

(4) 40 CFR 63.460 subpart T--Halogenated Solvent Cleaning (59 FR

61801).

(5) 40 CFR 63.640 subpart CC--Petroleum Refineries (60 FR 43244).

(6) 40 CFR 63.820 subpart KK--Standards for the Printing and

Publishing Industry (61 FR 27131).

(7) 40 CFR 63.420 subpart R: Gasoline Distribution (59 FR 64303).

EPA agrees with the calculated emission reductions associated with

the federal MACT standards.

Area Source Control Measures: Consumer Products. This is the same

measure as contained in New York's 15 Percent ROP Plan except New

York's 9 Percent RFP Plan is only taking the additional VOC credit that

would be generated for the years 1997-1999. EPA agrees with the

calculated emission reductions associated with consumer products.

Hospital Sterilizers. For 1999 the New York Metropolitan Area will

be affected by the federal MACT for ethylene oxide sterilizers. The

MACT requires all ethylene oxide sterilizers to be permitted. This

permit requirement subsequently subjects them to the control

requirements of Part 212, ``General Process Emission Sources''. EPA

agrees with the calculated emission reductions associated with hospital

sterilizers.

Municipal Solid Waste Landfills. For 1999, federally adopted New

Source Performance Standards and a New York State adopted regulation

for Municipal Solid Waste Landfills will be in effect for certain new

and existing landfills respectively in the New York Metropolitan Area.

On March 12, 1996 (61 FR 9919), the EPA promulgated in the Federal

Register standards of performance for new sources for municipal solid

waste landfills and emission guidelines for existing municipal solid

waste landfills. These regulations and guidelines were promulgated as

subparts WWW and Cc of 40 CFR part 60. On September 22, 1998, New York

adopted revisions to Part 360.2 ``Landfills'', which became effective

on November 21, 1998. These revisions make enforceable the requirements

as outlined in EPA's emission guidelines. On July 19, 1999 (64 FR

38582), EPA published a final notice approving the revisions to Part

360.2. EPA agrees with the calculated emission reductions associated

with the Municipal Solid Waste Landfills.

Surface Cleaning. For 1999, facilities located in the New York

Metropolitan Area will be subject to the National Emission Standards

for Hazardous Air Pollutants (NESHAP) for halogenated solvent cleaning

(NESHAP--40 CFR 63.460, subpart T). Subpart T applies to facilities

that use any of the following halogenated hazardous air pollutant

solvents, which have also been identified as VOC's: (1) trichloethylene

(TCE); (2) carbon tetrachloride (CT); and (3) chloroform (C). EPA

agrees with the calculated emission reductions associated with surface

cleaning.

Measures Not Creditable in Today's Action. Capped/shutdown

emissions. As discussed under the 15 Percent ROP Plan section, because

of the uncertainties associated with both capped and shutdown

emissions, EPA is considering these emissions reductions to be

noncreditable at this time with respect to New York's Phase I Ozone

SIP.

9 Percent RFP Plan Evaluation. New York has identified the control

measures necessary for achieving the required emission reductions and

all the measures have been adopted and implemented. EPA is proposing to

find that the 9 Percent RFP Plan contains the necessary measures as

identified in Table 3B to achieve the required emission reductions. EPA

proposes to approve emission credits for the 9 Percent RFP Plan,

pending EPA's verification of New York's enhanced I/M program's

effectiveness. However, as discussed under the 15 Percent ROP Plan

section, if EPA determines New York's enhanced I/M program

effectiveness demonstration indicates a shortfall in emission

reductions compared to the emission reductions credited in the 9

Percent RFP Plan, EPA will propose to disapprove the 9 Percent RFP

Plan. EPA final action will be based on EPA's evaluation of New York's

demonstration of the enhanced I/M program's effectiveness.

IV. What Other Phase I Required Elements Has New York Satisfied in

Their Submittal?

New York's submittal is intended to fulfill EPA's Phase I

requirements (``Ozone Attainment Demonstrations,'' March 2, 1995 memo

from Mary Nichols) and in addition to the previously mentioned SIP

elements, includes the following Phase I required elements: modeling

efforts completed to date; Ozone Transport Commission NOX

MOU; enforceable commitments for Phase II; clean fuel fleet program;

analysis of growth in emissions due to increases in VMT; and

photochemical assessment monitoring stations network.

A. What Modeling Work Was Submitted by New York?

As part of New York's initial submittal of the 15 and 9 percent

plans, New York submitted a preliminary modeling analysis using

assumptions about transported ozone and precursors, as required by the

March 2, 1995 memo.

Photochemical grid modeling is used to support New York's submittal

in two ways: first, meet the requirements set out in EPA's March 2,

1995 memo for a preliminary modeling analysis and to support the

State's ability to use reductions in VOC and NOX emissions

as part of its ROP and RFP Plans.

The modeling predicts that ozone will be reduced if emissions of

VOC or of NOX are reduced. This is based on modeling the

impact of proportionally reducing emissions of VOC and NOX

together and separately and showing

[[Page 59716]]

that the peak ozone concentration is reduced. Thus, emissions of either

VOC and NOX can be reduced to improve ozone air quality in

New York and either can be used in the 15 Percent ROP and 9 Percent RFP

Plans to the extent allowed in the Act.

New York has since submitted additional modeling analyses as part

of their Phase II Ozone Attainment Plan. EPA will act on the Phase II

Ozone Attainment Plan in a separate Federal Register notice.

EPA is proposing to accept New York's modeling efforts as

fulfilling EPA's Phase I requirements.

B. Did New York Satisfy the Ozone Transport Commission NOX

MOU Requirement?

EPA is proposing that New York has satisfied EPA's Phase I

requirement for NOX Memorandum of Understanding (MOU). In

September 1994, the Ozone Transport Commission agreed to develop a

regional program to achieve significant reduction in NOX

emissions from large combustion sources. On September 27, 1994, New

York signed the MOU which formalized this program. EPA's March 2, 1995

policy requires states to provide an enforceable commitment to

implement the NOXMOU, which New York did in a June 15, 1995

letter to EPA. On January 12, 1999, New York adopted revisions to Part

227-3 ``Pre 2003 Nitrogen Oxides Emissions Budget and Allocation

Program,'' which incorporate the NOX MOU requirements. Part

227-3 became effective on March 5, 1999. On April 29, 1999, NYSDEC

submitted to EPA a SIP revision which included the revisions to Part

227-3. EPA will be acting on the April submittal in the near future.

C. What Commitments to Future Actions Were Included in New York's

Submittal?

As part of New York's submittal of the Phase I SIP revision, New

York made commitments to the following EPA March 2, 1995 policy

requirements: (1) participate in the consultative process to address

regional transport; (2) adopt additional control measures as necessary

to attain the ozone standard, meet rate of progress requirements, and

eliminate significant contribution to nonattainment downwind; and (3)

identify any reductions that are needed from upwind areas for the area

to meet the ozone standard.

New York has since submitted a Phase II Ozone Attainment Plan which

address the commitments made in their Phase I plan. EPA is proposing to

accept the commitments made by New York as satisfying EPA's Phase I

requirements and will act on these elements in conjunction with Phase

II in the near future.

D. Has New York Satisfied the Phase I Clean Fuel Fleet Requirement?

With regards to fulfilling EPA's Clean Fuel Fleet Program (CFFP)

Phase I requirement (``Ozone Attainment Demonstrations,'' March 2, 1995

memo from Mary Nichols), New York has done so by adopting and

submitting to EPA a LEV program to be used as a substitute measure for

CFFP.

Section 182(c)(4) of the Act requires that serious or above ozone

and carbon monoxide nonattainment areas implement a CFFP. The Federal

CFFP requires that light and heavy duty fleets of ten or more vehicles

in the covered areas assure that a percentage of their annual new

vehicle purchases be clean fueled vehicles. The Act also allows states

to opt out of the CFFP with a substitute program or programs which

achieve equivalent long term emission reductions. On January 6, 1995

(60 FR 2022) EPA approved New York's opt out of the light duty CFFP

with its LEV program. The LEV program will cover all the vehicles in

the New York Metropolitan Area (as well as the rest of New York State),

of which the light duty vehicles covered by the CFFP would be only a

subset. Since that time New York has proposed to also opt out of the

heavy duty portion of the CFFP with the LEV program. New York is

confident that the LEV program will generate enough long term emission

reduction credits to be used as a substitute measure for the heavy duty

CFFP as well and still have surplus credit left over from the far

reaching LEV program. EPA will be acting on the heavy duty CFFP opt-out

in a separate Federal Register notice. New York is taking credit for

the LEV program in the 1996 and 1999 ROP plans and no credit is being

assigned to the CFFP program in these plans (i.e., there is no ``double

counting'' of credits). EPA agrees with this treatment of the LEV

program. With respect to New York's use of LEV as a substitute for the

CFFP, equivalency is measured in the long term, i.e. by the year 2010,

therefore its use in that capacity will have no bearing on the State's

1996 and 1999 ROP plans.

E. Does New York Need To Offset Growth in Emissions From Growth in VMT?

New York has indicated in its Phase I SIP submittal, that it will

not need to offset growth in emissions from growth in VMT until at

least the year 2007, the year New York is required to demonstrate

attainment. New York has also chosen to comply with the Act's RFP

milestone and attainment requirements using measures other than

Transportation Control Measures (TCMs).

Section 182(d)(1)(A) of the Act requires states containing ozone

nonattainment areas classified as ``severe'' under section 181(a) of

the Act to adopt TCMs in order to offset growth in emissions from

growth in VMT, and to attain reductions in motor vehicle emissions as

necessary to comply with the Act's RFP milestone and attainment

requirements.

Because current modeling does not indicate a need for TCMs to

offset a growth in emissions before 2007, EPA is proposing to approve

the part of the ozone SIP that determines that New York is not required

to adopt specific, enforceable TCMs to meet the TCM offset requirement.

EPA is also proposing to approve the states decision to comply with the

RFP milestone and attainment requirements using measures other than

TCMs.

F. Has New York Submitted an Approvable Photochemical Assessment

Monitoring Station Network?

NYSDEC submitted its photochemical assessment monitoring station

network (PAMS) Network Plan which was reviewed and found approvable on

September 21, 1998 by EPA and was judged to satisfy the requirements of

40 CFR 58.40(a).

Section 182(c)(1) of the Act and the General Preamble (57 FR 13515)

require that EPA promulgate rules for enhanced monitoring of ozone,

NOX and VOCs (see 58 FR 8452, February 12, 1993) and that

states classified serious and above develop and operate a PAMS. NYSDEC

has been establishing its PAMS network according to its approved Work

Plan and implementation schedule. The two PAMS sites approved by EPA,

one in the Bronx and the other in Queens, have been operating since

1994 and 1997, respectively. EPA is proposing to approve New York's

PAMS network.

V. Are New York's Transportation Conformity Budgets Approvable?

By virtue of proposing approval of the 15 Percent ROP Plan and 9

Percent RFP Plan, EPA is also proposing approval of the motor vehicle

conformity emissions budgets for VOC and NOX. For the 1999

analysis year and later, conformity determinations addressing VOC and

NOX must demonstrate consistency with the 9 Percent RFP Plan

revision's VOC and NOX motor vehicle emissions budget. Table

4 summarizes New York's Emission Budgets.

[[Page 59717]]

Table 4.--Emission Budgets for Conformity

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

1996 1999

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

County VOC tons/ VOC tons/ NOX tons/

day tons/dayNOX day day

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

Bronx....................................................... 22.2 23.6 18.0 20.6

Kings....................................................... 36.5 31.8 29.7 27.6

Nassau...................................................... 71.0 69.2 60.0 61.4

New York.................................................... 35.1 21.0 27.9 18.5

Orange (LOCMA).............................................. 5.1 9.2 4.9 8.7

Queens...................................................... 47.9 44.4 39.0 38.8

Richmond.................................................... 13.0 13.1 11.1 11.9

Rockland.................................................... 16.9 20.5 14.3 18.4

Suffolk..................................................... 62.3 75.7 53.6 68.0

Westchester................................................. 43.1 54.5 36.1 48.7

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

Total................................................... 353.2 362.8 294.7 322.6

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

EPA is proposing to approve New York's emission budgets.

VI. What Are EPA's Phase I Findings?

On July 3, 1996, EPA notified the Governor of New York that EPA was

making a finding of failure to submit all the Act elements required to

fulfill the March 2, 1995 ``Ozone Attainment Demonstration'' policy as

committed to by New York. With New York's submittals of September 4,

1997 and February 2, 1999 (Phase I SIP revision), and December 19, 1997

(Clean Fuel Fleets Program SIP revision), New York has now submitted

all the Phase I requirements.

VII. What Are EPA's Conclusions?

EPA has evaluated these submittals for consistency with the Act,

applicable EPA regulations, and EPA policy. EPA is proposing approval

of New York's: revisions to the 1990 base year ozone emission inventory

(for all ozone nonattainment areas in New York); the 1996 and 1999

ozone projection emission inventories; photochemical assessment

monitoring station network; demonstration that emissions from growth in

vehicle miles traveled will not increase motor vehicle emissions;

modeling efforts completed to date; transportation conformity budget;

and enforceable commitments for Phase II. EPA is also proposing to

approve emission credits for the 15 Percent ROP and 9 Percent RFP

Plans, pending EPA's verification of New York's enhanced I/M program's

effectiveness. If EPA determines New York's enhanced I/M program

effectiveness demonstration indicates a shortfall in emission

reductions compared to the emission reductions credited 15 Percent ROP

and/or 9 Percent RFP Plans, EPA will propose to disapprove the 15

Percent ROP and/or 9 Percent RFP Plans. EPA final action will be based

on EPA's evaluation of New York's demonstration of the enhanced I/M

program's effectiveness.

VIII. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order (E.O.) 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 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 one state, and does not alter the relationship or

the distribution of power and responsibilities established in the 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 E.O. 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 approval is not subject to

E.O. 13045 because it proposes approval of a state program implementing

a Federal standard, and it is not economically significant under E.O.

12866.

[[Page 59718]]

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, EPA certifies 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 approves

pre-existing requirements under 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and recordkeeping requirements, Volatile

organic compounds.

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

DatedD: October 21, 1999.

William J. Muszynski,

Acting Regional Administrator, Region 2.

[FR Doc. 99-28725 Filed 11-2-99; 8:15 am]

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