[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Rules and Regulations]
[Pages 38594-38597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18643]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[Region II Docket No. 151; SIPTRAX NY12-2-6920, FRL-5524-5]


Approval and Promulgation of Implementation Plans; Revision to 
the New York State Implementation Plan for Carbon Monoxide; 
Determination of Length of Control Period for New York-Northern New 
Jersey-Long Island Consolidated Metropolitan Statistical Area

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing the 
approval of portions of a request by the State of New York to revise 
its State Implementation Plan for Carbon Monoxide. EPA is approving New 
York's carbon monoxide plan which includes a vehicle miles travelled 
forecast, carbon monoxide emission inventory, multi-state coordination 
commitment, and Downtown Brooklyn Master Plan. EPA is also approving 
the State's use of the wintertime gasoline volatility program as a 
contingency measure. In addition, EPA is partially approving the 
State's oxygenated fuels rule. EPA will be taking action on New York's 
attainment demonstration, revised new source review program, conformity 
rules, and enhanced vehicle inspection and maintenance program in a 
separate Federal Register action.
    These revisions were required by the Clean Air Act as amended in 
1990 and will contribute towards attaining the carbon monoxide 
standard. EPA is also determining that the period prone to high ambient 
concentrations of carbon monoxide in the New York-Northern New Jersey-
Long Island Consolidated Metropolitan Statistical Area extends for the 
four month period from November 1 through the last day of February. 
This is the control period for carbon monoxide when State programs in 
this area must require oxygenated gasoline.

EFFECTIVE DATE: This action is effective August 26, 1996.

ADDRESSES: Copies of New York's submittals are available at the 
following addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Library, 16th Floor, 
290 Broadway, New York, New York 10007-1866.
New York Department of Environmental Conservation, Division of Air 
Resources, 50 Wolf Road, Albany, New York 12233.
Environmental Protection Agency, Air and Radiation Docket and 
Information Center (Air Docket 6102), 401 M Street, S.W., Washington, 
D.C. 20460.

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

SUPPLEMENTARY INFORMATION:

Background

    The Clean Air Act, as amended in 1990, sets forth in Title I a 
number of requirements applicable to areas designated as moderate 
nonattainment for carbon monoxide (CO). Among these is the requirement 
that by November 15, 1992 the State Implementation Plans (SIP) for such 
areas be revised to include the following: an attainment demonstration, 
an enhanced vehicle emission inspection and maintenance (I/M) program, 
an oxygenated fuels rule, a vehicle miles travelled forecast, 
contingency measures, a CO emission inventory, a revised new source 
review program, and a multi-state coordination letter.
    EPA has issued a ``General Preamble'' describing its preliminary 
views on how it intends to review SIPs and SIP revisions submitted in 
order to meet Title I requirements [see generally 57 FR 13498 (April 
16, 1992) and 57 FR 18070 (April 28, 1992)]. The reader should refer to 
the General Preamble for a more detailed discussion of the Title I 
requirements and what EPA views as necessary to comply adequately with 
Title I provisions.
    On November 13, 1992, New York submitted to EPA proposed revisions 
to its CO SIP that addressed each of the aforementioned requirements 
for its moderate CO nonattainment area. In addition, in a submittal 
dated March 21, 1994, New York submitted additional information on the 
subject.
    The New York portion of the New York-Northern New Jersey-Long 
Island CO nonattainment area is classified as a moderate 2 area (an 
area that has a design value of 12.8-16.4 ppm). This area, which is 
part of the New York-Northern New Jersey-Long Island Consolidated 
Metropolitan Statistical Area (CMSA), includes the Counties of Bronx, 
Kings, New York, Queens,

[[Page 38595]]

Richmond, Nassau, and Westchester. The remainder of New York State is 
in attainment for CO.
    EPA proposed approval of most provisions of the State's submission 
on September 15, 1995 (60 FR 47911). The reader is referred to the 
proposal for a detailed discussion of EPA's action. Comments were due 
by October 15, 1995. The State of New York was the only commenter.
    In its proposal to approve revisions to the New York SIP for CO, 
EPA also proposed to determine that the period prone to high ambient 
concentrations of CO, and thus the control period when oxygenated 
gasoline is required for the New York-Northern New Jersey-Long Island 
CMSA, extends from November 1 to the last day of February. 
Consequently, EPA proposed to approve New York's oxygenated gasoline 
requirement only for that four month period because anything beyond the 
control period required by section 211(m) of the Clean Air Act is 
preempted under 211(c)(4), due to the reformulated gasoline oxygen 
content requirements applicable in this area.
    On February 12, 1996, EPA published (61 FR 5363) a Solicitation of 
Comment action regarding the proposed determination to set a four month 
control period for the New York-Northern New Jersey-Long Island CMSA. 
This action solicited comment on the limited issue of some additional 
information with regard to emissions modeling and data for the New 
Jersey portion of the area. The New York Mercantile Exchange was the 
only commenter on this action.

Public Comment

    New York's comments on the New York SIP Federal Register concerned 
EPA's proposed action on the State's attainment demonstration, I/M 
program, oxygenated fuels rule, and contingency measures. For a 
detailed discussion of these comments, the reader is referred to the 
``New York Carbon Monoxide State Implementation Plan Technical Support 
Document (TSD), September 1, 1995 and amended February 28, 1996.'' The 
comments are summarized as follows:
    1. New York urges EPA to grant full approval to the State's CO 
attainment demonstration because the State has devoted substantial 
resources to developing it. The principle steps the State used include:

1. Ranking and selection of the ``worst case'' intersections
2. Selection of an air quality model
3. Selection of a background concentration
4. Selection of the temperature to use in the model
5. Modeling
6. Summary of modeling results

    These steps are described in more detail in the TSD accompanying 
this rule. In general, New York's model shows that the area reaches 
attainment of the CO NAAQS when credit for implementing an enhanced I/M 
program is considered. However, the State does not, at this time, have 
a fully adopted and submitted I/M program. Accordingly, contrary to the 
commenter's suggestion, EPA is precluded from granting a full approval 
to the attainment demonstration.
    EPA is not taking action at this time on the State's attainment 
demonstration.
    2. In its Federal Register action, EPA proposed not to approve 
section 225-3.8 of New York's gasoline regulation. This section allows 
the State to grant waivers to the regulation's summertime Reid Vapor 
Pressure (RVP) limitations. In its comments, New York states that it 
believes this section should be approved along with the rest of the 
State's oxygenated gasoline rule, noting that the provision has no 
bearing on New York's wintertime oxygenated gasoline program.
    While EPA agrees that the summertime RVP controls are not a part of 
the oxygenated gasoline requirements, New York is requesting EPA to 
approve those RVP controls as part of its federally enforceable SIP. 
This requires EPA to evaluate whether those provisions are approvable 
as a revision to New York's SIP. For the reasons stated in its proposed 
rulemaking, EPA continues to believe that it would be inappropriate to 
approve the State's waiver provisions for the RVP requirement given 
that the State controls are otherwise identical to the Federal 
controls, which the State has no power to waive.
    3. New York also commented on the fact that EPA did not propose to 
approve section 225-3.9(a), which would allow the State to grant 
waivers of the oxygenated gasoline requirements due to shortages in 
supply. It believes that the discretion to grant variances should be 
part of the State's responsibilities for administering the program, and 
that it would take EPA too long to authorize these types of waivers 
through the SIP process.
    As discussed more fully in the proposal, EPA has identified 
specific circumstances under which EPA may approve a narrow state 
variance provision that would allow the State to grant waivers and 
which would be consistent with the applicable statutory requirements. 
Since the New York submission does not provide that any increased 
emissions due to a waiver would subsequently be made up, EPA cannot 
approve the submitted waiver provision because EPA would have no 
assurance that such waivers would not violate the requirement of 
section 110(l) by potentially exempting sources from the requirements 
of the Clean Air Act.
    Absent approval of the waiver provision, EPA would have to evaluate 
in each individual case whether a waiver would be consistent with the 
statutory requirements. EPA will attempt to address these issues in a 
timely fashion. Furthermore, if the State elects to revise its waiver 
provision to include the necessary assurance that emissions would be 
made up, EPA would make every effort to revise the SIP quickly to 
include the waiver provision.
    4. New York commented that it believes that, although its employee 
commute option program (ECO) submittal must meet certain specific 
requirements as an ozone SIP element, the submittal should be approved 
as an adequate CO contingency measure at this time.
    EPA expects the ECO program to be subject to change by New York 
State. It is expected that this will then be submitted to EPA as part 
of the ozone SIP. EPA sees no need to reduce the flexibility available 
to the State in revising its ECO plan by approving it now as a 
contingency CO control measure.
    EPA received no negative comments on its proposal to determine that 
the period prone to high ambient concentrations of CO for the New York-
Northern New Jersey-Long Island CMSA extends from November 1 through 
the last day of February, either on the proposed rulemaking for the New 
York CO SIP or the additional Solicitation of Comment (61 FR 5363). The 
New York Mercantile Exchange raised concerns on issues outside the 
scope of this rulemaking, but strongly supported EPA finalizing the 
proposed determination of the control period. Thus, EPA is hereby 
determining that the period prone to high ambient concentrations of CO 
extends from November 1 through the last day of February. EPA is also 
approving New York's oxygenated fuel requirement for only those four of 
the seven months provided in New York's submission.
    This action of determining that the control period for the New 
York-Northern New Jersey-Long Island CMSA is the four month period from 
November through February has the effect of converting EPA's limited 
approval of the four month portion of New Jersey's oxygenated gasoline 
SIP submission

[[Page 38596]]

into a full approval of that part. The reader is referred to the New 
Jersey notice (61 FR 5299) for further details.

Elements of the SIP Being Fully Approved

Vehicle Miles Travelled Forecast

    The New York SIP is required under section 187(a)(2)(A) of the 
Clean Air Act to include a forecast of vehicle miles travelled through 
the year 1995. In addition, annual reports on the accuracy of the 
forecast and estimates of actual vehicle miles travelled and annual 
updates of the forecasts are required of the State; the first of these 
was required by September 30, 1994. EPA finds that New York has 
submitted documentation satisfying these requirements and, therefore, 
is approving New York's vehicle miles travelled forecast SIP revision.

Carbon Monoxide Emission Inventory

    The New York SIP is required under section 187(a)(1) and as 
described in section 172(c)(3) of the Clean Air Act to include a 
comprehensive, actual inventory of all CO emission sources in the 
nonattainment areas. EPA proposed to approve the CO inventory, and no 
comments on this proposal were received. For the reasons described more 
fully in the TSD, EPA is approving New York's 1990 base year emission 
inventory for CO.

Multi-State Coordination

    The New York SIP is required under section 187(e) of the Clean Air 
Act to include a joint workplan to demonstrate early cooperation and 
integration of all states in the nonattainment area. This workplan 
consisted of a letter signed by former Director Thomas M. Allen 
containing a detailed schedule of milestones and a commitment to 
coordinate with EPA and each of the states involved. EPA proposed to 
approve the joint workplan, and no comments on this proposal were 
received. EPA finds that New York has fulfilled this requirement and 
approves New York's multi-state coordination commitment.

Contingency Measures

    The New York SIP is required under section 187(a)(3) of the Clean 
Air Act to include adopted contingency measures in the event the State 
fails to attain the national ambient air quality standards by the 
required date or if any estimate of vehicle miles travelled contained 
in an annual report required by section 187(a)(2) exceeds the number 
predicted in the most recent prior forecast. In a January 1992 guidance 
document entitled ``Section 187 VMT Forecasting and Tracking 
Guidance,'' EPA discussed what it considers to be the allowable limit 
of an exceedance after which contingency measures must take effect 
without further action by the State or EPA. EPA proposed to approve, as 
a contingency measure, the State's wintertime gasoline volatility 
program, and no comments on this proposal were received. Thus, EPA 
approves, as a contingency measure, the State's wintertime gasoline 
volatility program as an adequate contingency measure should New York 
fail to attain the CO standard or exceed the vehicle miles travelled 
forecast.

Downtown Brooklyn Master Plan

    On September 21, 1990, New York submitted a revision to the New 
York SIP to attain the carbon monoxide air quality standard in the 
Brooklyn portion of the New York City metropolitan area. EPA is 
approving this plan as a revision to the SIP.

Elements of the SIP Being Partially Approval

Oxygenated Fuels Rule

    The New York SIP is required under section 211(m) of the Clean Air 
Act to include an oxygenated gasoline program which requires gasoline 
for the State's specified control areas to contain not less than 2.7 
percent oxygen by weight during that portion of the year in which the 
areas are prone to high ambient concentrations of CO. EPA is approving 
that part of New York's Subpart 225-3, ``Fuel Composition and Use--
Gasoline (oxygenated gasoline program) which meets the requirements of 
the Clean Air Act and which was part of its November 13, 1992, SIP 
submittal. As discussed earlier and in its proposed rulemaking, EPA is 
approving New York's program only for the four months when the area is 
prone to higher ambient concentrations of CO, which is the control 
period required by section 211(m) of the Clean Air Act. EPA is also not 
approving sections 225-3.8 and 225-3.9(a), which deal with State 
gasoline waiver provisions, as discussed earlier. Although EPA is not 
approving a portion of the State's regulation, EPA has determined that 
the approved provisions fully meet the requirements of section 211(m) 
of the Clean Air Act.

Further Actions

    EPA will be taking action on New York's I/M program, attainment 
demonstration, revised new source review program, and conformity rules 
in future Federal Register actions. New York is in the process of 
revising its I/M program. Once this revision is submitted as a SIP 
revision and approved by EPA, EPA will take action on the I/M program 
and the attainment demonstration which relies on credit from the I/M 
program.

Conclusion

    EPA is fully approving New York's vehicle miles travelled forecast, 
CO emission inventory, multi-state coordination commitment, and 
Downtown Brooklyn Master Plan, as revisions to New York's CO SIP. In 
addition, the State's wintertime gasoline volatility program is being 
approved as a contingency measure. EPA is approving portions of New 
York's Subpart 225-3, ``Fuel Composition and Use--Gasoline,'' 
regulation as fully meeting the oxygenated fuels requirement of section 
211(m) of the Clean Air Act.
    This action is issued as required by section 110 of the Clean Air 
Act, as amended. The Administrator's decision regarding the approval of 
this plan revision is based on its meeting the requirements of section 
110 of the Clean Air Act, and 40 CFR Part 51.
    Nothing in this rule should be construed as permitting or allowing 
or establishing a precedent for any future request for revision to any 
SIP. Each request for revision to any SIP shall be considered 
separately in light of specific technical, economic, and environmental 
factors and in relation to relevant statutory and regulatory 
requirements.
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a federal mandate that may result in 
estimated annual costs of $100 million or more to the private sector, 
or to state, local, or tribal governments in the aggregate.
    Through submission of this SIP or plan revision, the State and any 
affected local or tribal governments have elected to adopt the program 
provided for under section 187 of the Clean Air Act. These rules may 
bind state, local and tribal governments to perform certain actions and 
also require the private sector to perform certain duties. To the 
extent that the rules being approved by this action will impose any 
mandate upon the State, local or tribal governments either as the owner 
or operator of a source or as a regulator, or would impose any mandate 
upon the private sector, EPA's action will impose no new requirements; 
such sources are already subject to these regulations under State law. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to

[[Page 38597]]

the private sector, result from this action. EPA has also determined 
that this final action does not include a mandate that may result in 
estimated annual costs of $100 million or more to State, local, or 
tribal governments in the aggregate or to the private sector.
    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.
    Under section 307(b)(l) of the Clean Air Act, petitions for 
judicial review of this rule must be filed in the United States Court 
of Appeals for the appropriate circuit within 60 days from date of 
publication. Filing a petition for reconsideration by the Administrator 
of this final rule does not affect the finality of this rule for the 
purposes of judicial review nor does it extend the time within which a 
petition for judicial review may be filed and shall not postpone the 
effectiveness of such rule or action. This rule may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2)).

Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) of the Administrative Procedure Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to publication of this rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by section 804(2) of the 
APA as amended.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: May 31, 1996.
William J. Muszynski,
Acting Regional Administrator.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart HH--New York

    2. Section 52.1670 is amended by adding new paragraph (c)(89) to 
read as follows:


Sec. 52.1670   Identification of plan.

* * * * *
    (c) * * *
* * * * *
    (89) Revisions to the New York State Implementation Plan (SIP) for 
carbon monoxide concerning the control of carbon monoxide from mobile 
sources, dated November 13, 1992 and March 21, 1994 submitted by the 
New York State Department of Environmental Conservation (NYSDEC).
    (i) Incorporation by reference.
    (A) Subpart 225-3 of Title 6 of the New York Code of Rules and 
Regulations of the State of New York, entitled ``Fuel Composition and 
Use--Gasoline,'' effective September 2, 1993 (as limited in section 
1679).
    (ii) Additional material.
    (A) March 21, 1994, Update to the New York Carbon Monoxide SIP.
    3. Section 52.1679 is amended by removing the existing entry for 
Subpart 225-3 and adding a new entry for Subpart 225-3 in numerical 
order to read as follows:


Sec. 52.1679  EPA--approved New York State regulations.

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                                         State effective     Latest EPA approval                                
      New York State regulation               date                   date                     Comments          
----------------------------------------------------------------------------------------------------------------
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
Subpart 225-3, Fuel Composition and    9/2/93              [insert date of          Section 225-3.4 applicable  
 Use-- Gasoline.                                            publication and FR       November 1 through last day
                                                            page citation].          of February. Variances     
                                                                                     adopted by the State       
                                                                                     pursuant to sections 225-  
                                                                                     3.8 and 225-3.9(a) become  
                                                                                     applicable only if approved
                                                                                     by EPA as SIP revisions.   
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
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[FR Doc. 96-18643 Filed 7-24-96; 8:45 am]
BILLING CODE 6560-50-P