[Federal Register Volume 60, Number 179 (Friday, September 15, 1995)]
[Proposed Rules]
[Pages 47911-47918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22957]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[Region II Docket No. 140, NY 12-1-6477; FRL-5296-7]


Approval and Promulgation of Implementation Plans; Carbon 
Monoxide State Implementation Plan Revision State of New York and 
Revision of Oxygenated Gasoline Control Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing the approval of portions of a request from 
New York to revise its State Implementation Plan (SIP) related to the 
control of carbon monoxide. EPA is proposing approval of New York's 
vehicle miles travelled forecast, contingency measures, carbon monoxide 
emission inventory, multi-state coordination letter, and Downtown 
Brooklyn Master Plan. In addition, EPA is proposing approval of the 
oxygenated gasoline program in the New York City consolidated 
metropolitan statistical area during the four months when the area is 
prone to high ambient concentrations of carbon monoxide. New York's 
oxygenated fuels program also includes a provision for oxygenated fuels 
to serve as a contingency measure in the Syracuse metropolitan 
statistical area.
    New York has recently updated its enhanced inspection and 
maintenance submittal which EPA is currently reviewing. Therefore, 
action on that program, along with the attainment demonstration, which 
relies on the enhanced inspection and maintenance program, will be 
taken in a separate Federal Register notice. These revisions have been 
submitted in response to requirements established in the Clean Air Act 
as amended in 1990 that the states develop a plan to attain the carbon 
monoxide standard.

DATES: Comments must be received on or before October 16, 1995

.ADDRESSES: Written comments should be addressed to:

William S. Baker, Chief, Air Program Branch, Environmental Protection 
Agency, Region II Office, 290 Broadway, New York, New York 10007-1866

    Copies of the state submittals are available at the following 
addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch, 
290 Broadway, New York, New York 10007-1866.
New York Department of Environmental Conservation, Division of Air 
Resources, 50 Wolf Road, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Henry Feingersh, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, New York, New York 
10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

Background

    The Clean Air Act, as amended in 1990, sets forth a number of 
requirements that states designated as moderate nonattainment for 
carbon monoxide had to submit as revisions to their SIPs by November 
15, 1992. Since the New York portion of the ``New York-Northern New 
Jersey-Long Island'' carbon monoxide nonattainment area is classified 
as a moderate 2 area (an area that has a design value of 12.8-16.4 
ppm.), New York was required to make this submission. These 
requirements are: an attainment demonstration, an enhanced vehicle 
inspection and maintenance program, an oxygenated fuels rule, a vehicle 
miles traveled forecast, contingency measures, a carbon monoxide 
emission inventory, a revised new source review program, and multi-
state coordination letter.
    EPA has issued a ``General Preamble'' describing its preliminary 
views on how it intends to review SIPs and SIP revisions submitted in 
order to meet Title I requirements [see generally 57 FR 13498 (April 
16, 1992) and 57 FR 18070 (April 28, 1992)]. The reader should refer to 
the General Preamble for a more detailed discussion of the Title I 
requirements and what EPA views as necessary to adequately comply with 
Title I provisions.
    On November 13, 1992, New York submitted to EPA proposed revisions 
to its carbon monoxide SIP that addressed each of the above 
requirements for its moderate carbon monoxide nonattainment area. In 
addition, in a submittal dated March 21, 1994, New York submitted to 
EPA additional information pertaining to its carbon monoxide SIP.
    As part of Federal Environmental Impact Statement work, certain 
projects in Brooklyn were identified as causing violations of the 
carbon monoxide standard. The State said that they would revise the 
carbon monoxide SIP to mitigate these problems. On September 21, 1990, 
New York submitted a revision to the New York SIP to attain the carbon 
monoxide air quality standard in the Brooklyn portion of the New York 
City metropolitan area.
    These three submittals are the subject of this Federal Register. 
The following summarizes EPA's evaluation of New York's SIP submittals 
and EPA's proposed actions. The details of EPA's review are contained 
in the Technical Support Document available at EPA's Region II office. 

[[Page 47912]]


Attainment Demonstration

    Section 187(a)(7) of the Clean Air Act requires each state that 
contains all or part of a moderate 2 area to submit to the 
Administrator an attainment demonstration by November 15, 1992. This 
attainment demonstration documents how the State will attain the 8-hour 
carbon monoxide NAAQS of 9 ppm by December 31, 1995.
    New York, using emissions from the EPA-approved MOBILE4.1 model, 
demonstrated attainment of the carbon monoxide standard with the EPA-
approved CAL3QHC air quality dispersion model. New York took emission 
reductions credit from enhanced I/M, oxygenated fuels, and the federal 
motor vehicle control program (vehicle turnover) as control measures to 
attain the standard. A detailed explanation of this modeling is 
contained in the Technical Support Document.
    New York's analysis demonstrated that all of the modeled 
intersections attained the 8-hour carbon monoxide standard of 9 ppm. 
The highest value obtained was 9.0 ppm which occurred at two 
intersections. Since air quality values at the most congested 
intersections was determined to not exceed the standard, New York has 
demonstrated that the entire area will be in attainment for carbon 
monoxide by December 31, 1995.
    New York used appropriate modeling techniques and modeling inputs 
in this demonstration, however one of the control measures used to 
demonstrate attainment, the enhanced inspection and maintenance 
program, submitted on November 15, 1993 had not been fully adopted in 
accordance with State requirements. On July 31, 1995, New York 
submitted an updated enhanced inspection and maintenance program which 
EPA determined to be complete on August 2, 1995. EPA will take action 
on the enhanced inspection and maintenance program and the attainment 
demonstration in a separate Federal Register notice.

Enhanced Inspection and Maintenance Program

    Section 187(a)(6) of the Clean Air Act requires implementation of 
enhanced inspection and maintenance programs in moderate 2 carbon 
monoxide nonattainment areas and includes provisions as required under 
section 182(c)(3) concerning serious ozone nonattainment areas. Such 
provisions require implementation of an enhanced inspection and 
maintenance program in urbanized areas with a population greater than 
200,000.
    On November 15, 1993 New York submitted draft regulations and other 
information pertaining to the enhanced inspection and maintenance 
program. Since New York did not submit a fully adopted enhanced 
inspection and maintenance program, on February 2, 1994 EPA notified 
the State that this submittal was incomplete and a sanctions process 
was begun. New York then made an updated submittal on July 31, 1995 
which EPA will be taking action on in a separate Federal Register 
notice.

Oxygenated Fuels Rule

I. Introduction

    Section 211(m) of the Clean Air Act requires that various states 
submit revisions to their SIPs, and implement oxygenated gasoline 
programs by no later than November 1, 1992. This requirement applies to 
all states with carbon monoxide nonattainment areas with design values 
of 9.5 parts per million or more based generally on 1988 and 1989 data. 
Each state's oxygenated gasoline program must require gasoline for the 
specified control area(s) to contain not less than 2.7 percent oxygen 
by weight during that portion of the year in which the areas are prone 
to high ambient concentrations of carbon monoxide. Under section 
211(m)(2), the oxygenated gasoline requirements are to generally cover 
all gasoline sold or dispensed in the larger of the consolidated 
metropolitan statistical area or the metropolitan statistical area in 
which the nonattainment area is located. Under section 211(m)(2), the 
length of the control period, to be established by the EPA 
Administrator, shall not be less than four months in length unless a 
state can demonstrate that, because of meteorological conditions, a 
reduced control period will assure that there will be no carbon 
monoxide exceedances outside of such reduced period. EPA announced 
guidance on the establishment of control periods by area in the Federal 
Register on October 20, 1992.\1\

    \1\ See ``Guidelines for Oxygenated Gasoline Credit Programs and 
Guidelines on Establishment of Control Periods under Section 211(m) 
of the Clean Air Act as Amended--Notice of Availability,'' 57 FR 
47849 (October 20, 1992).
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State Submittal
    In order to fulfill the Clean Air Act requirement, on September 27, 
1993 New York submitted a request to revise its State Implementation 
Plan to incorporate adopted revisions to Title 6 Subpart 225-3 of the 
New York Code of Rules and Regulations, entitled ``Fuel Composition and 
Use--Volatile Motor Fuel,'' effective on September 2, 1993.
Applicability and Program Scope
    Section 211(m)(2) requires oxygenated gasoline to be sold during a 
control period based on air quality monitoring data and established by 
the EPA Administrator. New York has established control periods for the 
New York City consolidated metropolitan statistical area and the 
Syracuse metropolitan statistical areas which are consistent with the 
1992 EPA guidance.
    New York's oxygenated gasoline regulations require oxygenated 
gasoline to be sold in the larger of the consolidated metropolitan 
statistical area (CMSA) or metropolitan statistical area (MSA) in which 
the nonattainment area is located, consistent with the requirements of 
section 211(m)(2) of the Act. The New York City CMSA consists of the 
following counties: Bronx, Kings, Queens, New York, Richmond, Orange, 
Rockland, Putnam, Westchester, Nassau and Suffolk. New York's current 
regulation requires oxygenated gasoline to be sold in this area from 
October 1 through April 30. While this control period had been 
appropriate in previous carbon monoxide control seasons in the New York 
City CMSA, EPA is proposing to determine, based on more recent ambient 
air monitoring data, that the appropriate oxygenated gasoline control 
period for the area should be shorter in length. Four months is the 
minimum program length allowed by the Clean Air Act, except as 
indicated in section 211(m)(B) which, at the request of a state with 
respect to any carbon monoxide nonattainment area, allows the EPA 
Administrator to reduce the period below four months. Such a 
determination can only occur if the State can demonstrate that due to 
meteorological conditions a shorter period will assure that no carbon 
monoxide exceedances will occur outside of that shorter period.
    New York also requires the sale of oxygenated gasoline in any area 
of the State which had been designated as nonattainment for carbon 
monoxide but was redesignated as attainment, if it is required to 
maintain the standard in that area.
    In the case of the Syracuse metropolitan statistical area, which 
has been officially redesignated as attainment for carbon monoxide (See 
58 FR 50851), the oxygenated gasoline program is no longer required in 
that area since the attainment demonstration did not depend on the 
program. The oxygenated gasoline program constitutes the State's 
contingency measure for the Syracuse metropolitan statistical area, in 

[[Page 47913]]
the event that the carbon monoxide standard is violated in this area. 
If this program should need to be re-instituted in this area, the 
period of sale would be November 1 through the last day of February.
    In this notice EPA is applying established Agency guidance 
(announced for availability at 57 FR 47853, October 20, 1992) regarding 
oxygenated gasoline control periods to determine the proper control 
period length for the New York City CMSA. As part of the 1992 guidance 
document, based on air quality data from 1990 and 1991, EPA suggested 
that the proper control period for the New York City CMSA was October 1 
through April 30. However, the 1992 guidance does not establish a 
binding norm regarding control periods and provides that the 
determination of the control period will be an issue to be finally 
decided by EPA as part of the review of individual state SIP revisions 
for oxygenated gasoline programs. For the reasons set forth below, EPA 
is now proposing to determine that the appropriate control period is 
from November 1 through the last day of February; EPA believes sale of 
gasoline oxygenated to 2.7 percent by weight during the months of 
October, March and April is no longer necessary for adequate carbon 
monoxide control in the New York City CMSA.
    Section 211(m), cited in the 1992 EPA guidance, requires control 
period length to be decided by the EPA Administrator based on the 
period an area is prone to high carbon monoxide concentrations. The 
three-state New York City CMSA has not recorded an exceedance of the 
carbon monoxide national ambient air quality standard (NAAQS) in the 
three months proposed to be dropped since October of 1991. Furthermore, 
since 1992 the CMSA has not been prone to high ambient concentrations 
of carbon monoxide, during those three months. Under the approach used 
in EPA's guidance, ``prone to high ambient concentrations of carbon 
monoxide'' is a criterion more stringent than the NAAQS.
    While the successful reduction in ambient carbon monoxide levels 
during October, March and April in the New York City CMSA can in part 
be attributed to the sale of oxygenated gasoline, EPA believes that 
implementation of new programs under the Clean Air Act in the New York 
City CMSA will adequately ensure continued observance of reduced levels 
of carbon monoxide during the months of October, March and April. 
Reformulated gasoline, a year round clean gasoline program, which was 
implemented on January 1, 1995 in the New York City CMSA [see 59 FR 
7716, February 16, 1994.] provides gasoline oxygenated to 2.0 percent. 
EPA believes that implementation of enhanced inspection and maintenance 
programs [40 CFR Part 51, Subpart S] and the turnover of the New York 
City CMSA fleet, to newer, cleaner vehicles combined with the use of 
reformulated gasoline will ensure continued lower carbon monoxide 
emissions from motor vehicles for the CMSA during October, March and 
April.
    While the established guidance bases the determination of control 
period only on air quality monitoring data (which exists for the entire 
New York City CMSA for 1992 to 1995), EPA believes that it is prudent 
also to provide a technical analysis further supporting the reduction 
of oxygen content during the shoulder months in the area. To support 
the contention that in future years, starting with 1996, without sales 
of gasoline oxygenated to 2.7 percent, but with implementation of 
federal reformulated gasoline (RFG) and enhanced I/M combined with 
vehicle turnover carbon monoxide emissions will continue to be lower 
during October, March and April in the area, EPA performed a series of 
computer model runs. Since the first observance after the 
implementation of the oxygenated fuels program of low CO levels during 
those months was in 1993, average vehicle emissions from that year were 
used as an upper limit in determining the adequacy of removal of the 
higher oxygen content in October, March and April.
    The comparison was performed utilizing the most current version of 
EPA's emission factor model for mobile sources, MOBILE5a. All modeling 
assumed implementation of RFG (with 2.0 percent oxygen content) for 
1995 and later, and for 1996 and future years, the effect of an 
enhanced I/M program are included. MOBILE5a variables such as vehicle 
speeds and a vehicle miles traveled growth rate were supplied by the 
New York State Department of Environmental Conservation. For further 
details regarding the MOBILE5a runs and the subsequent comparisons, the 
reader is referred to the technical support document. Modeling shows 
that removing oxygenated gasoline (to 2.7 percent) but accounting for 
the effects of RFG, enhanced I/M and vehicle turnover, vehicle 
emissions of CO, through calendar year 2020 (based on an average day in 
the CO season in each of those years), will still be at least 22.74 
percent less than vehicle emissions of CO in 1993 with 2.7 percent 
oxygenated gasoline. Thus elimination of oxygenated gasoline program 
requirements in the shoulder months in the area appears to be 
technically sound.
    Based on the proposed determination that the appropriate control 
period runs from November through February, EPA is proposing to approve 
New York's oxygenated gasoline requirement only for that four month 
period. This EPA action on New York's SIP revision takes into account 
the interaction of the current New York regulation and the RFG 
regulation promulgated by EPA on February 16, 1994. During the entire 
seven month period of October through April, the current New York 
standard for oxygen content in the New York portion of the New York 
City CMSA is a minimum of 2.7 percent oxygen by weight. The same New 
York portion of the New York City CMSA is also subject to RFG 
requirements, which include a year-round oxygenate standard of 2.0 
percent. 40 CFR section 80 subpart D. As discussed below, the RFG 
requirements act to preempt an extension of the state oxygenated 
gasoline provisions beyond the four month period prone to high ambient 
concentrations of CO.
    EPA's authority to regulate fuels and fuel additives is found in 
section 211 of the Clean Air Act. Under section 211(c)(1), the 
Administrator has the authority to control or prohibit the manufacture 
and sale of fuels and fuel additives on the grounds of danger to public 
health or impairment of emissions control devices. Section 211(c)(4) 
provides that where the Administrator has set such a control or 
prohibition under section 211(c)(1) applicable to a characteristic or 
component of a fuel or fuel additive, no state may set a control or 
prohibition respecting that characteristic or component, unless the 
state control or prohibition is identical to the federal control or 
prohibition. This provision preempts state fuel controls that are 
nonidentical to federal section 211(c)(1) controls on the same 
characteristic or component.
    EPA promulgated the RFG program under the authority of sections 
211(k) and 211(c)(1) [59 FR 7716, February 16, 1994]. RFG must contain 
2.0% oxygen content by weight, and it is required year-round in the New 
York City CMSA. In the absence of section 211(m), section 211(c)(4) 
would preempt states from establishing their own minimum oxygen content 
requirements different from the RFG requirements in RFG areas. Because 
section 211(m) is a specific, more stringent requirement, it overrides 
the general preemption provision, and states are not preempted from 
complying with section 211(m) in RFG 

[[Page 47914]]
areas. However, states are preempted from setting nonidentical controls 
or prohibitions on oxygen content in RFG areas to the extent that such 
controls or prohibitions are not mandated by section 211(m).
    In this notice, EPA is proposing to determine that the New York 
City CMSA is prone to high ambient concentrations of carbon monoxide 
during the four month period of November through February. Section 
211(m) only requires states to adopt 2.7% oxygenated gasoline 
requirements for the period prone to high ambient concentrations of 
carbon monoxide, as determined by the Administrator. Thus, upon 
finalization of EPA's proposed determination, section 211(m) would only 
require New York to adopt a 2.7% minimum oxygen content standard for 
four months. The RFG oxygen content requirement preempts any state from 
prescribing or enforcing oxygen content requirements in this area that 
go beyond what is mandated by section 211(m). Because New York would be 
preempted from enforcing the additional months of October, March and 
April, EPA is only proposing to approve New York's oxygenated fuel 
requirements for the months of November through February in the 
counties of Bronx, Kings, Queens, New York, Richmond, Orange, Rockland, 
Putnam, Westchester, Nassau and Suffolk. EPA is publishing concurrently 
with this notice a Notice of Proposed Rulemaking to approve 
Connecticut's oxygenated gasoline SIP submission. That notice proposes 
to establish the same four-month control period for the Connecticut 
portion of the New York-New Jersey-Connecticut CO nonattainment area. 
New York's four-month control period will be consistent with 
Connecticut's four-month control period.
    Through a letter dated August 11, 1995 from New York State 
Department of Environmental Conservation Deputy Commissioner David 
Sterman to EPA Regional Administrator Jeanne Fox, the State of New York 
has communicated to EPA their intent to revise Subpart 225-3 to reflect 
the shorter control period, identical to the control period EPA is 
proposing to approve. In the same letter, New York requests EPA to 
revise its control period guidance to shorten the period to four 
months. Rather than revising the guidance, in this proposal EPA is 
applying the guidance to make a determination that the appropriate 
control period for this area is four months. EPA believes it is 
appropriate to approve New York's oxygenated fuel requirement for only 
four of the seven months provided in New York's submission because this 
approval would not increase the stringency of the State submission and 
conforms with the State's intended revisions to the regulation. Also, 
section 110(a)(2)(A) requires SIPs to include ``enforceable * * * 
control measures.'' EPA only has authority to approve the enforceable 
portion of the State submission, which, upon finalization of EPA's 
proposed determination, would correspond to a four month control 
period.
Transfer Documents
    New York has included requirements related to transfer 
documentation in its regulation. These transfer document requirements 
enhance the enforcement of the oxygenated gasoline regulation, by 
providing a traceable record for each gasoline sample taken by state 
enforcement personnel.
Enforcement and Penalty Schedules
    State oxygenated gasoline regulations must be enforceable by the 
state oversight agency. EPA recommends that states visit regulated 
parties during a given control period. Inspections should consist of 
product sampling and record review. In addition, each state should 
devise a comprehensive penalty schedule. Penalties should reflect the 
severity of a party's violation, the compliance history of the party, 
as well as the potential environmental harm associated with the 
violation. New York has provided for a comprehensive penalty schedule 
in accordance with EPA guidance. In addition to having authority to 
assess a civil administrative penalty, the State has authority to use 
further measures such as issuance of abatement orders.
Waiver Provisions
    EPA is proposing to not approve sections 225-3.8 and 225-3.9(a), 
which would allow the Commissioner of the Department of Environmental 
Conservation, upon application, to grant waivers from the State's 
minimum oxygen content requirement, and the minimum Reid vapor pressure 
(RVP) requirement, respectively, due to a shortage of gasoline which 
meets those requirements.
    In its revision to section 225-3.8, the State revised the RVP 
waiver provision originally approved by EPA at 54 FR 26030 on June 21, 
1989. At the time, New York had adopted its own summertime RVP 
standards, more stringent than national standards, as part of an 
initiative on the parts of northeastern states to make progress toward 
achieving the National Ambient Air Quality Standard for ozone. Since 
that time, the national RVP standards have been lowered to the same 
levels as were initiated by New York in 1989. Because the State's RVP 
standards are again equal to EPA's national standards and because 
gasoline RVP is regulated on the Federal level, New York can no longer 
effectively grant waivers for RVP. To avoid confusion that EPA's 
approval of the New York RVP requirement might mean that State waivers 
would waive the Federal requirements, EPA is not approving the State's 
waiver provision (section 225-3.8).
    EPA is also proposing to not approve section 225-3.9(a), which 
allows the State to grant waivers of the minimum oxygen content 
requirement. Generally, EPA does not approve state variance or waiver 
provisions in SIP submissions that would allow the state to grant 
waivers without EPA approval. To the extent that a waiver provision 
would allow a state to exempt a source from compliance required by the 
statute, such a waiver could be inconsistent with the applicable 
statutory requirements. However, in guidance for oxygenated fuels 
programs, EPA has identified circumstances under which the Agency may 
approve a very narrow state variance provision authorizing the state to 
allow supply of nonconforming gasoline due to extraordinary 
circumstances. See Guidelines for Oxygenated Gasoline Credit Programs 
under section 211(m) of the Clean Air Act as Amended. The guidance 
establishes five conditions to be included in an approvable variance 
provision. One of these conditions is that the ``refiner agrees to make 
up the air quality detriment associated with the nonconforming 
gasoline, where practicable.'' The New York variance provision does not 
include this requirement. This is a key condition because it reduces 
the likelihood that granting of a variance would detrimentally affect 
the environment. Given this deviation from the conditions specified in 
the guidance, EPA believes that the New York variance provision is not 
approvable because the limits of the discretion do not clearly meet EPA 
policy for approving such an exercise of discretion, EPA is not 
approving this waiver provision. Such waivers would need to be approved 
by EPA as SIP revisions consistent with EPA policy on such waivers.
Test Methods and Laboratory Review
    EPA's sampling procedures are detailed in Appendix D of 40 CFR Part 
80. EPA has recommended, in its credit program guidelines, that states 
adopt these sampling procedures. New York has incorporated by reference 
EPA sampling methods. 

[[Page 47915]]

Labeling
    EPA requires the labeling of gasoline pumps and has strongly 
recommended that states adopt their own labeling regulations, 
consistent with the federal regulation. New York has adopted labeling 
regulations consistent with the federal regulation.
Credit Program
    EPA guidance announced the availability of an optional oxygenated 
gasoline credit program (57 FR 47849, October 20, 1992), where 
marketable oxygen credits may be generated from the sale of gasoline 
with a higher oxygen content than is required. New York has opted not 
to implement such a credit program and requires a per-gallon minimum 
oxygen content of 2.7% during the control period.

II. Proposed Action

    EPA's review of Subpart 225-3 indicates that the State has adopted 
an oxygenated gasoline regulation in accordance with the requirements 
of the Clean Air Act. Therefore, EPA is proposing to approve New York's 
Subpart 225-3 oxygenated gasoline program as a revision to the State's 
SIP. EPA is proposing not to approve sections 225-3.8 and 225-3.9(a), 
which unduly allow the State's Commissioner to grant waivers from the 
minimum oxygen content and minimum RVP requirement, respectively.

Vehicle Miles Travelled Forecast

    Section 187(a)(2)(A) of the Clean Air Act requires moderate carbon 
monoxide nonattainment areas, such as that portion of New York included 
in the ``New York-Northern New Jersey-Long Island'' carbon monoxide 
nonattainment area, to submit a SIP revision that forecasts vehicle 
miles travelled through the year 1995. In addition, annual reports and 
annual updates are required by the State.
    The vehicle miles travelled forecast must meet several 
requirements. It must estimate the vehicle miles travelled from 1990 
through 1995 using a method acceptable to EPA, must be conducted in the 
appropriate geographic area and must provide for annual updates of the 
forecasts and annual reports on the extent to which the forecasts were 
accurate, as well as estimates of actual vehicle miles travelled in 
each year for which a forecast was required (57 FR 13532, April 16, 
1992). Moreover, the state should develop the vehicle miles travelled 
forecast based on EPA guidance.
    Contingency measures are to be implemented in a case where the 
actual annual vehicle miles travelled or the updated forecast contained 
in an annual report exceeds the most recent prior vehicle miles 
travelled forecast by an acceptable margin of error (5.0 percent in 
1994, 4.0 percent in 1995, and 3.0 percent thereafter) and/or if 
estimated actual vehicle miles travelled or forecasted vehicle miles 
travelled exceeds a cumulative 5 percent cap above the attainment 
demonstration.
    The estimated vehicle miles travelled for 1990 and 1991 are 130.7 
and 134.6 million miles per day, respectively. In addition, the future 
forecasts were (in million miles per day) 138.5 for 1992, 142.5 for 
1993, 146.4 for 1994, and 150.3 for 1995.
    On November 15, 1994, New York submitted a vehicle miles travelled 
tracking report for the State's 1992 New York City Metropolitan area 
Carbon Monoxide SIP. This report showed that for 1990, the actual 
vehicle miles travelled was 130.8. The actual vehicle miles travelled 
for 1991 to 1993 were below the original forecast: 131.8 for 1991; 
135.8 for 1992 and 137.1 for 1993.
    New York has submitted documentation satisfying these requirements 
and EPA, therefore, proposes approval of New York's vehicle miles 
travelled forecast SIP revision.

Contingency Measures

    Section 187(a)(3) of the Clean Air Act requires that states adopt 
contingency measures to take effect without further action by the 
Administrator or the state if the state fails to attain the NAAQS by 
the required date or if any estimate of actual vehicle miles travelled 
in the nonattainment area or any updated forecast of vehicle miles 
travelled contained in an annual report for any year prior to 
attainment is exceeded beyond the allowable limit as discussed in the 
vehicle miles travelled forecast section. Contingency measures should 
be capable of reducing vehicle miles travelled or resultant emissions 
by an amount equal to the projected annual growth rate for vehicle 
miles travelled (57 FR 13532, April 16, 1992). New York identified two 
contingency measures, the employee commute option program and winter 
gasoline volatility reductions, to fulfill this requirement. These 
programs would both act as contingency measures for failure to attain 
the carbon monoxide standard or for exceeding the vehicle miles 
travelled forecast.
1. Employee Commute Option Program
    New York is required by section 182(d)(1)(B) of the Clean Air Act 
to submit its Employee Commute Option program as part of its ozone 
nonattainment SIP. New York's program applies to employers with 100 or 
more employees who arrive at the workplace between the hours of 6 and 
10 a.m. The goal of this program is to increase the average passenger 
occupancies by 25% above the average for all vehicles arriving to all 
workplaces within the zone. This would decrease the amount of 
automobiles arriving at the workplace, and therefore, decrease the 
vehicle miles travelled.
    New York enacted enabling legislation on August 9, 1993 and the New 
York State Department of Transportation adopted regulations on April 6, 
1994 to implement the program. New York then submitted a SIP revision 
on June 6, 1994 that contained an adopted employee commute option 
program. EPA will be taking action on the employee commute option 
program submittal as a requirement of the ozone SIP in a separate 
Federal Register notice since there are specific requirements an 
employee commute option program must meet for an ozone SIP but not for 
contingency measures in a carbon monoxide SIP.
2. Winter Time Gasoline Volatility
    New York identified Winter Time Gasoline Volatility as an 
additional contingency measure. New York State's Subpart 225-3 ``Fuel 
Composition and Use--Volatile Motor Fuel'' permits the commissioner to 
set a winter RVP level for gasoline if such a level is necessary for 
air quality purposes. This regulation was adopted on June 30, 1993.
    EPA is proposing to approve the State's use of the winter time 
gasoline volatility program as a carbon monoxide contingency measure 
because it is an adopted measure that will serve to reduce emissions of 
carbon monoxide. Also, section 211(c)(4) does not preempt the State 
from adopting a limit on gasoline RVP in the winter time. Under section 
211(c)(4), states are preempted from prescribing any control or 
prohibition respecting any characteristic or component of a fuel, where 
there is a nonidentical Federal control or prohibition applicable to 
such characteristic or component. There are two sources of Federal 
controls on RVP, the Phase II Federal RVP controls promulgated under 
section 211(h) and section 211(c)(1), and the Federal RVP controls for 
reformulated gasoline promulgated under section 211(k) and section 
211(c)(1). Both of these Federal RVP controls apply only in the summer 
months. There is no Federal RVP control applicable to gasoline in the 
winter time, and thus no Federal preemption of the New York winter time 
RVP control.

[[Page 47916]]

    Although New York identified two acceptable contingency measures, 
only one is approvable by EPA at this time. Therefore, EPA proposes to 
approve the winter time gasoline volatility program as an adequate 
contingency measure should New York fail to attain the carbon monoxide 
standard or exceed the vehicle miles travelled forecast. Action on the 
employee commute option program will be taken in a separate Federal 
Register notice.

Carbon Monoxide Emission Inventory

    New York submitted a carbon monoxide emission inventory on November 
15, 1992 as required by section 187(a)(1) and as described in section 
172(c)(3) of the Clean Air Act. Additional inventory information was 
submitted in January and March of 1993.
    The emission inventory is for a typical carbon monoxide season 
weekday occurring during December, January, and February and represents 
a comprehensive, actual inventory of all carbon monoxide emission 
sources in the New York Metropolitan area. It includes emissions from 
point, area, and mobile sources (see 1990 base year carbon monoxide 
emissions summary in Table 1).

 Table 1.--Summary of 1990 Base Year Carbon Monoxide Emissions by Source
                          Category for New York                         
------------------------------------------------------------------------
                                                                   CO   
                                                               emissions
                       Source category                           (tons/ 
                                                                  day)  
------------------------------------------------------------------------
Point........................................................      31.26
Area.........................................................     380.16
Non-Road Mobile..............................................     577.71
On-Road Mobile...............................................    4138.02
                                                              ----------
      Total..................................................    5127.15
------------------------------------------------------------------------

    The inventory was developed according to EPA guidance and has been 
quality assured. Sources that emit in excess of 100 tons per year of 
carbon monoxide are defined as point sources. Stationary sources that 
emit below this threshold are too small to be considered point source 
and are, therefore, considered to be area sources. The area and off-
highway mobile sources include such categories as stationary source 
fuel combustion, aircraft, marine vessels, and railroads. Highway 
mobile source emissions were calculated using an updated version of 
EPA's MOBILE 4.1 model (MOBILE5). Input parameters to this model 
included vehicle miles travelled, speed, temperature, and registration 
distribution.
    EPA proposes to approve New York's 1990 base year emission 
inventory for carbon monoxide.

New Source Review Regulation

    Section 173 of the Clean Air Act requires states to submit new 
source review (NSR) revisions that, among other things, incorporate new 
offset ratios and applicability limits in new source review permitting 
regulations by November 15, 1992.
    EPA will address New York's NSR regulation in a separate Federal 
Register notice.

Multi-State Coordination Letter

    Section 187(e) of the Clean Air Act establishes the requirements 
for ``multi-state carbon monoxide nonattainment areas,'' which are 
defined as single carbon monoxide nonattainment areas that cover more 
than one state. To satisfy this requirement, states must develop and 
submit to EPA a joint workplan to demonstrate early cooperation and 
integration. This workplan can be in the form of a letter co-signed by 
all states in the nonattainment area, or, EPA has decided, it can 
consist of signed individual letters from each of the states. New York 
submitted its letter, containing a detailed schedule of milestones and 
a commitment to coordinate with EPA and each of the states involved, on 
September 16, 1992.
    Therefore, EPA proposes to find that New York has fulfilled this 
requirement and proposes approval of this SIP revision.

Downtown Brooklyn Master Plan

    On September 21, 1990, New York submitted a revision to the New 
York SIP to attain the carbon monoxide air quality standard in the 
Brooklyn portion of the New York City metropolitan area. This submittal 
consisted of a plan that was developed in 1987 by the Commissioners of 
the New York City Departments of Transportation and Environmental 
Protection called the Downtown Brooklyn Master Plan (DBMP). The DBMP 
committed the City to implement 13 capital projects in order to reduce 
high levels of carbon monoxide at intersections in Downtown Brooklyn. 
The submittal was found to be administratively complete on November 19, 
1990.
    The 13 projects that made up the DBMP were devised to alleviate 
predicted violations of the carbon monoxide standard that resulted from 
several development projects in Downtown Brooklyn. The effects of the 
individual projects that made up the DBMP were evaluated as a package 
as part of EPA's review of the Environmental Impact Statement for the 
Metrotech project. EPA has determined that, taken together, the 
projects would eliminate the predicted violations.
    In its submittal of November 15, 1992 the State included a status 
report on the DBMP. This status report was updated in a July 14, 1994 
letter from Thomas Allen, Department of Environmental Conservation. The 
status of the DBMP as of July 1994 is displayed in the following table. 
It shows that, of the 13 capital projects that made up the original 
plan, five have been completed, one has been partially completed, and 
two were found to be unnecessary. Of the six projects yet to be 
completed, two were expected to be completed prior to December 31, 
1995. The remaining four projects are unlikely to be completed by that 
date.
    The State is free to revise this element of the SIP, either by 
demonstrating that the entire DBMP is no longer necessary or by 
submitting another program of measures equivalent to those it wants to 
remove.
    EPA proposes to approve the DBMP as a revision to the SIP.

                                     Table 2.--Downtown Brooklyn Master Plan                                    
----------------------------------------------------------------------------------------------------------------
Downtown Brooklyn master plan status as of July                                ISOPIA region II 27-Jul-94       
                      1994                        Original completion ------------------------------------------
------------------------------------------------         date                                                   
                    Project                                                              Status                 
----------------------------------------------------------------------------------------------------------------
Capital Project Hwk 197A2, Flatbush Ave: 4th     31-Dec-91...........  Completed 12/91.                         
 Ave to Nassau St, Jay St: Fulton St to Sands                                                                   
 St, Willoughby St: Flatbush Ave to Gold St.                                                                    
Capital Porject Hwk 565, Jay St: Fulton St to    31-Dec-91...........  Completed 12/91.                         
 Sands St.                                                                                                      
Capital Project Hwk 739, Willoughby St:          31-Dec-91...........  Completed 12/91.                         
 Flatbush Ave to Gold St.                                                                                       
Capital Project Hwy 197A3R, Flatbush Ave:        30-Jun-95...........  Delayed due to MTA station               
 Atlantic Ave to 4th Ave, Atlantic Ave:                                 reconstruction.                         
 Flatbush Ave to 4th Ave, 4th Ave: Pacific St                          Estimated bid date Spring 1995.          
 to Flatbush Ave \1\.                                                                                           

[[Page 47917]]
                                                                                                                
Capital Project Hwk 197G, Ashland Place: Fulton  30-Jun-93...........  Completed 6/93.                          
 St to Dekalb Ave.                                                                                              
Capital Project Hwk 197B, Concord St: Flatbush   ....................  Capital project no longer necessary.     
 Ave to Gold St.                                                                                                
Capital Project Hwk 197C, Concord St: Gold St    ....................  Capital Project no longer necessary.     
 to Navy St.                                                                                                    
Capital Project Hwk 197D, Gold St: Nassau St to  30-Mar-89...........  Completed 3/89.                          
 Tillary St.                                                                                                    
Capital Project Hbk 667A, Adams/Tillary          31-Dec-95...........  Project to be re-evaluated.              
 Underpass, Adams St SVC Rd N/B: Willoughby to                                                                  
 Sands, Adams St SVC Rd S/B: Willoughby to Red                                                                  
 Cross \1\.                                                                                                     
Capital Project Hbk 667B, BQE: W/B off Ramp @    31-Dec-95...........  Timeframe is significantly past 1995.    
 Ashland Place \1\.                                                                                             
Capital Project Hwk 565A, Tillary/Jay St         31-Jan-95...........  Project tied to underpass construction.  
 intersection double left turns \1\.                                                                            
Capital Project Hwk 565A, Atlantic Ave W/B: Ft   31-May-93...........  MTA approval (delayed) needed to begin   
 Greene Pl to Flatbush \1\.                                             construction.                           
Capital Project ED 75 (Project 201; Subproject                                                                  
 E 175):                                                                                                        
    A: Atlantic Ave E/B: 4th Ave to Flatbush     30-Jun-95...........  Construction Completed.                  
     Ave.                                                                                                       
    B: 4th Avenue N/B: Pacific St to Atlantic    30-Jun-95...........  Construction Completed.                  
     Ave.                                                                                                       
    C: Vanderbilt Ave @ Atlantic Ave \1\.......  31-Mar-94...........  Awaiting land acquisition                
    D: Atura Streets \1\.......................  31-Mar-94...........  Under Construction. Completion 9/94.     
----------------------------------------------------------------------------------------------------------------
\1\ Projects not yet completed.                                                                                 



Summary

    EPA is proposing approval of New York's vehicle miles travelled 
forecast, contingency measures, carbon monoxide emission inventory, 
multi-state coordination letter, and Downtown Brooklyn Master Plan as 
revisions to its carbon monoxide SIP. EPA also proposes approval of New 
York's winter time gasoline volatility program as a contingency 
measure. The employee commute option program will be acted upon in a 
separate Federal Register notice. In addition, with the exception of 
sections 225-3.8 and 225.3.9(a), EPA is proposing to approve the 
oxygenated gasoline program in the New York City consolidated 
metropolitan statistical area. This program also includes a provision 
for oxygenated fuels to serve as a contingency measure in the Syracuse 
metropolitan statistical area. New York has recently updated their 
enhanced inspection and maintenance submittal which EPA is currently 
reviewing. Therefore, action on that program, along with the attainment 
demonstration, which relies on the enhanced inspection and maintenance 
program, will be taken in a separate Federal Register document.
    EPA will address the new source review regulation and 
transportation and conformity rules in separate Federal Register 
documents.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the 
Clean Air Act do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
federal SIP-approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moveover, due to the nature of the federal-state relationship 
under the Clean Air Act, preparation of a regulatory flexibility 
analysis would constitute federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v US 
EPA, 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a federal mandate that may result in 
estimated annual costs of $100 million or more to the private sector, 
or to state, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the state and any affected local or tribal governments have 
elected to adopt the program provided for under section 187 of the 
Clean Air Act. These rules may bind state, local and tribal governments 
to perform certain actions and also require the private sector to 
perform certain duties. To the extent that the rules being proposed for 
approval by this action would impose any mandate upon the state, local 
or tribal governments either as the owner or operator of a source or as 
a regulator, or would impose any mandate upon the private sector, EPA's 
action would impose no new requirements; such sources are already 
subject to these regulations under state law. Accordingly, no 
additional costs to state, local, or tribal governments, or to the 
private sector, result from this action. EPA has also determined that 
this proposed action does not include a mandate that may result in 
estimated annual costs of $100 million or more to state, local, or 
tribal governments in the aggregate or to the private sector.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and 

[[Page 47918]]
Radiation. The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Ozone, Reporting and recordkeeping 
requirements.

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

    Dated: September 6, 1995.
William J. Muszynski,
Acting Regional Administrator.
[FR Doc. 95-22957 Filed 9-14-95; 8:45 am]
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