[Federal Register Volume 66, Number 156 (Monday, August 13, 2001)]
[Proposed Rules]
[Pages 42479-42486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20263]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY49-223, FRL-7032-3]


Approval and Promulgation of Implementation Plans; New York 
Reasonable Further Progress Plans and Transportation Conformity Budgets 
for 2002, 2005 and 2007

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency is proposing to approve a 
New York State Implementation Plan revision involving the 1-hour Ozone 
Plan which is intended to meet several Clean Air Act requirements, 
including the separate requirement for enforceable commitments for the 
1-hour ozone attainment demonstration. Specifically, EPA is proposing 
approval of the: 2002, 2005 and 2007 ozone projection emission 
inventories; Reasonable Further Progress Plans for milestone years 
2002, 2005 and 2007; transportation conformity budgets for 2002, 2005 
and 2007; and contingency measures. 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 1-hour 
national ambient air quality standard for ozone.

DATES: Comments must be received on or before September 12, 2001.

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ADDRESSES: All comments should be addressed to: Raymond Werner, 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 (TSD) 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, 625 Broadway, 2nd floor, 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) 637-3381.

SUPPLEMENTARY INFORMATION:

Table of Contents

What are the Clean Air Act requirements and how do they apply to New 
York?
What was included in New York's submittal?
How were New York's 2002, 2005 and 2007 ozone projection emission 
inventories developed and what were the results?
What are the Clean Air Act requirements for an approvable Reasonable 
Further Progress Plan?
What measures are being implemented in New York to achieve RFP?
What is EPA's assessment of New York's control measures and the 
emission reductions credits?
Does New York achieve the RFP target level of emissions for 
milestone years 2002, 2005 and 2007?
How did New York provide for the contingency measure requirement?
Are New York's RFP reductions consistent with EPA's proposal of the 
1-hour ozone attainment demonstration?
Are New York's transportation conformity budgets approvable?
What are EPA's Conclusions?
Administrative Requirements

What Are the Clean Air Act Requirements and How Do They Apply to 
New York?

    Section 182 of the Clean Air Act (Act) specifies the required State 
Implementation Plan (SIP) submissions and requirements for areas 
designated nonattainment for the 1-hour ozone standard as well as 
timeframes for 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 has six ozone nonattainment areas. These areas are 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 Albany-Schenectady-Troy, 
Buffalo-Niagara Falls, Essex County, Jefferson County and the 
Poughkeepsie Areas are considered ``clean data'' areas which 
essentially means that the three most recent years of air monitoring 
data demonstrate attainment of the 1-hour ozone standard. As for the 
New York-Northern New Jersey-Long Island Area, which is classified as a 
severe ozone nonattainment area, the most recent three years of data 
continue to demonstrate nonattainment. 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, and 
seven municipalities in Orange County-Blooming Grove, Chester, 
Highlands, Monroe, Tuxedo, Warwick and Woodbury. The 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 Metro 
Area).

What Was Included in New York's Submittal?

    On November 27, 1998, Deputy Commissioner Carl 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. This 
revision is intended to fulfill the requirement in the Act for 3 
percent per-annum Reasonable Further Progress (RFP) including 
contingency measures, and includes the following: the 2002, 2005 and 
2007 ozone projection emission inventories; RFP Plan for milestone 
years 2002, 2005 and 2007; contingency measures and transportation 
conformity budgets for 2002, 2005 and 2007.

How Were New York's 2002, 2005 and 2007 Ozone Projection Emission 
Inventories Developed and What Were the Results?

    A projection of 1990 volatile organic compounds (VOC) and oxides of 
nitrogen ( NOX) anthropogenic emissions to 2002, 2005 and 
2007 in the New York Metro Area is required to determine the reductions 
needed for the RFP plans with NOX substitution. The 2002, 
2005 and 2007 projection year emission inventories are calculated by 
multiplying the 1990 base year inventory by factors which estimate 
growth from 1990 to 2002, 2005 and 2007, respectively. A specific 
growth factor for each source type in the inventory is required since 
sources typically grow at different rates.
    The difference between the 1990 base year inventory and the 2002, 
2005 and 2007 projection inventories are the emissions growth 
estimates. Based on the difference between the 1990 base year inventory 
and the 2002, 2005 and 2007 projection year inventories, the total 1990 
to 2002, 2005 and 2007 growth, for the four anthropogenic VOC source 
categories (stationary point, area, non-road and on-road mobile), is 
estimated at 121.8, 160.6 and 186.6 tons per day (tpd), respectively, 
in the New York Metro Area. The total growth, for all the 
NOX source categories, from 1990 to 2002, 2005 and 2007 
growth is estimated at 226, 276.2 and 307.9 tpd, respectively, in the 
New York Metro Area.

1990 Base Year Inventory

    On May 10, 2001 (66 FR 23849) EPA approved the 1990 base year 
inventory (for all ozone nonattainment areas in New York State). Based 
on EPA's review, New York satisfied all of EPA's requirements for 
purposes of providing a comprehensive and accurate 1990 inventory of 
actual emissions in the ozone nonattainment areas. Details of EPA's 
evaluation of the 1990 Base year inventory will not be discussed in 
this rulemaking. The reader is referred to EPA's November 3, 1999 (64 
FR 59706) proposed approval and ``New York State 1990 Base Year 
Inventory SIP Technical Support Document,'' for details on the approval 
of New York's 1990 base year ozone season emission inventory. Table 1 
below shows the federally-approved 1990 base year VOC and 
NOX emission inventories for the New York Metro Area.

[[Page 42481]]



          Table 1.--New York Metro Area 1990 Base Year Emissions Inventory Ozone Season Emissions (tpd)
----------------------------------------------------------------------------------------------------------------
                                                    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
----------------------------------------------------------------------------------------------------------------

2002, 2005, 2007 Projection Year Inventory Methodology Major Point 
Sources

    For the major point source category, New York projected 1990 base 
year emissions to 2002, 2005 and 2007 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. 
BEA growth indicators are one of the preferred growth indicators to 
use, as outlined in ``Procedures for Preparing Emissions Projections,'' 
July 1991.

Area Sources

    For the area source category, New York projected emissions from 
1990 to 2002, 2005 and 2007 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

    Non-road vehicle equipment emissions were projected from 1990 to 
2002, 2005 and 2007 using population growth forecast or BEA industrial 
indicators where applicable. This is in accordance with EPA's 
recommended growth indicators for projecting emissions for non-road 
mobile source categories outlined in ``Procedures for Preparing 
Emissions Projections,'' July 1991.

Highway Mobile Sources

    For the on-road mobile source category, the primary indicator and 
tool for developing on-road mobile growth and expected emissions are 
vehicle miles traveled (VMT) and EPA's mobile emissions model Mobile 
5b. 2002, 2005 and 2007 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. This 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.
    Table 2 shows 2002, 2005 and 2007 VOC and NOX projection 
emission inventories (controlled after 1990) using the aforementioned 
growth indicators/methodologies.

 Table 2.--New York Metro Area 2002, 2005 and 2007 Projection Year Inventories (Controlled) Ozone Season VOC and
                                               NOX Emissions (tpd)
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                                                                          Non-Road       On-road
                 Pollutant                      Point     Area sources     mobile        mobile         Total
                                               sources                     sources       sources
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2002:
    VOC...................................          85.2         352.1         142           179.1         758.4
    NOX...................................         180.8          63.5         173.9         265.9         684.1
2005:
    VOC...................................          87           356.8         127           166.9         737.7
    NOX...................................         147.9          64.7         166.3         253.8         632.7
2007:
    VOC...................................          87.5         357.9         115           162.4         722.8
    NOX...................................         148.3          65.4         161.3         244           619
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    Based on EPA guidance, the 2002, 2005 and 2007 inventories are 
complete and approvable. A more detailed discussion of how the emission 
inventories were reviewed and the results are presented in the 
supporting Technical Support Document (TSD).

What are the Clean Air Act Requirements for an Approvable 
Reasonable Further Progress Plan?

    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 each 
consecutive three-year period beginning 6 years after enactment of the 
Act (1996) until the area attains the 1-hour ozone standard (2007 for 
the New York Metro Severe Ozone nonattainment area). EPA previously 
approved the 15 and 9 percent Rate of Progress (ROP) Plans for the New 
York Metro Area (66 FR 23849). Those plans identify the control 
measures and the VOC and NOX emission reduction credits 
associated with those measures that would be achieved from 1990 through 
1999. This notice refers to the New York Metro Area RFP plans for 
milestone years 2002, 2005 and 2007.
    Section 182(c)(2)(C) of the Act allows NOX reductions to 
be substituted for VOC reductions for RFP demonstrations in accordance 
with EPA guidance. New York has shown that NOX reductions 
may appropriately be counted toward the RFP requirements. A full 
explanation of how New York's SIP fulfills EPA's guidance concerning 
NOX substitution is included in the TSD.

What Measures are Being Implemented in New York To Achieve RFP?

    New York provided a plan which commits to implement a list of 
measures to achieve the RFP reductions required for the New York Metro 
Area. Table 3 identifies the reductions associated with each individual 
control strategy which occurs between 1990-2007. Some of those credits 
where utilized in the

[[Page 42482]]

federally approved 15 and 9 percent ROP plans for the New York Metro 
Area, however, due to the nature of the control measures/programs these 
measures achieve additional emission reduction credits beyond those 
used in the 15 and 9 percent ROP plans. These unused reductions are 
being claimed in these recent RFP plans. For a concise description of 
those control measures and emission reduction credits used in the 15 
and 9 percent plans, the reader is referred to EPA's proposed 
rulemaking action on the New York 15 and 9 percent ROP plans, published 
in the Federal Register on November 3, 1999 (64 FR 59706). All of the 
measures identified in table 3 have either been adopted by New York and 
submitted to EPA as SIP revisions or are promulgated federal measures. 
Following table 3 is a concise description of those new measures that 
were not previously included in New York's 15 and 9 percent plans.

Table 3.--Summary of RFP Control Measures And Emission Reduction Credits
                                  (tpd)
------------------------------------------------------------------------
                  Control measures                       VOC       NOX
------------------------------------------------------------------------
Non-road mobile source:
    Reformulated Gasoline (Phases I & II)...........       9.0
    New Engine Standards............................      60.0      40.0
On-road mobile source:
    Reformulated Gasoline (Phases I & II)...........     167.2      22.9
    Tier I--New Vehicle Standards...................      59.5      87.1
    Low Emission Vehicle............................      24.2      24.3
    Enhanced Inspection and Maintenance.............      77.6      58.2
    2004 NOX Emission Standards.....................        --      15.0
Stationary source control measures:
    Parts 212, 228, 229--VOC Reasonably Available         21.6        --
     Control Technology (RACT)......................
    MACT (Federal Air Toxics Measures)..............       7.9        --
    Ozone Transport Commission (OTC) Phase II               --     194.4
     Baseline (Part 227-3 and Part 204).............
    Part 227-2......................................        --       7.5
    40 CFR Subpart Cb (Large Municipal Waste                --       2.5
     Combustors)....................................
    Capped..........................................       2.7       3.3
Area source control measures:
    Auto Body Refinishing...........................       5.8        --
    Commercial Bakeries.............................       2.1        --
    Consumer Products...............................      12.5        --
    Graphic Art Facilities..........................       0.8        --
    Hospital Sterilizers............................       0.1        --
    Municipal Solid Waste Landfills.................       5.1        --
    Stage II gasoline vapor recovery................       2.1        --
    Transit/Loading Losses..........................       0.7        --
    Surface Cleaning................................      19.4
                                                     -------------------
        Total emission reduction credits............     478.3     455.2
------------------------------------------------------------------------
New Control Measures not included in New York's 15 and 9 percent ROP
  plans: Reformulated Gasoline Phase II--On-Road; 2004 NOX Emission
  Standard; Reformulated Gasoline Phase II--Non-Road; OTC Phase II
  Baseline (Part 227-3)--NOX MOU; NOX SIP Call (Part 204); Capped/
  shutdown emissions.

Reformulated Gasoline Phase II--On-Road

    The second phase of the federal reformulated gasoline program (RFG 
Phase 2) began on January 1, 2000 in New York's portion of the New York 
Metro Area. RFG Phase 2 reduces emissions further than the first phase 
of the program, requiring minimum ozone season VOC reductions of 27 
percent from average 1990 gasoline levels. The second phase of the 
program also requires that refiners reduce NOX levels by a 
minimum of 7 percent from average 1990 levels. New York has accounted 
for the emissions reduction effects of RFG Phase 2 in its most recent 
ROP plans.

2004 NOX Emission Standard

    EPA finalized new engine emission standards which will require 
reduced emissions of NOX beginning with model year 2004. To 
model the effects of the new heavy duty engine standards, EPA released 
MOBILE5 Information Sheet #5, ``Inclusion of New 2004 NOX 
Standard for Heavy-Duty Diesel Engines in MOBILE5a and MOBILE5b 
Modeling,'' January 30, 1998. New York has accounted for the effects of 
the new standard in its modeling based on this EPA guidance.

Reformulated Gasoline Phase II--Non-Road

    New York based its assumptions regarding expected emissions 
reductions from use of RFG Phase 2 in nonroad vehicles and engines on 
expected gasoline Reid vapor pressure (RVP) reductions associated with 
this gasoline and theoretical vapor-liquid relationships. New York 
verified its predictions using EPA's draft NONROAD computer model. EPA 
has determined that New York's methods for predicting emissions 
benefits from this source category are approvable. However, once EPA's 
NONROAD model becomes final, New York will be expected to reexamine and 
consider recalculation of the emission reductions, if at that time, 
there is reason to believe that results predicted by the final NONROAD 
model will vary significantly from those predicted by the draft model. 
This is because EPA guidance recommends against use of draft models for 
SIP purposes.

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

    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 Memoranda of Understanding (MOU) 
requirements. The Ozone Transport Commission (OTC) NOX MOU 
calls for states to reduce NOX emissions from boilers and 
indirect heat exchangers with heat inputs greater than 250 million 
British

[[Page 42483]]

Thermal Unit (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. On April 19, 2000, 65 FR 20905, EPA approved the revisions to 
Part 227-3.

NOX SIP Call (Part 204)

    On October 27, 1998, EPA published a final rule entitled, ``Finding 
of Significant Contribution and Rulemaking for Certain States in the 
Ozone Transport Assessment Group Region for Purposes of Reducing 
Regional Transport of Ozone,'' otherwise known as the `` NOX 
SIP Call.'' See 63 FR 57356. At that time, the NOX SIP Call 
required 22 states and the District of Columbia \1\ to meet statewide 
NOX emission budgets during the five month period from May 1 
through September 30 in order to reduce the amount of ground level 
ozone that is transported across the eastern United States. The 
NOX SIP Call set out a schedule that required the affected 
states, including New York, to adopt regulations by September 30, 1999, 
and to implement control strategies by May 1, 2003 \2\.
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    \1\ Alabama, Connecticut, District of Columbia, Delaware, 
Georgia, Illinois, Indiana, Kentucky, Massachusetts, Maryland, 
Michigan, Missouri, North Carolina, New Jersey, New York, Ohio, 
Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, 
Wisconsin, and West Virginia.
    \2\ On May 25, 1999, the D.C. Circuit issued a stay of the 
submission requirement of the SIP Call pending further order of the 
court. Michigan v. EPA, No. 98-1497 (D.C. Cir. May 25, 1999) (order 
granting stay in part). On April 3rd and 18th, 2000, New York 
voluntarily submitted this revision to EPA for approval 
notwithstanding the court's stay of the SIP submission deadline. On 
March 3, 2000, the D.C. Circuit ruled on Michigan v. EPA, affirming 
most aspects of the SIP Call and remanding limited portions to the 
Agency. On June 22, 2000, the D.C. Circuit lifted the stay of the 
SIP submission obligations and provided states until October 30, 
2000.
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    The NOX SIP Call allowed states the flexibility to 
decide which source categories to regulate in order to meet the 
statewide budgets. However, the SIP Call notice suggested that imposing 
statewide NOX emissions caps on large fossil-fuel fired 
industrial boilers and electricity generators would provide a highly 
cost-effective means for states to meet their NOX budgets.
    On November 15, 1999, New York adopted Part 204, `` NOX 
Budget Trading Program,'' in order to strengthen its one-hour ozone SIP 
and to comply with the NOX SIP Call during each ozone 
season, i.e., May 1 through September 30, beginning in 2003. On May 22, 
2001 (66 FR 28059) EPA approved New York's regulations to comply with 
the NOX SIP Call.

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.

What is EPA's Assessment of New York's Control Measures and the 
Emission Reductions Credits?

    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 2002, 
2005 and 2007 RFP Plans contain the necessary measures as identified in 
Table 3 to achieve the required emission reductions. Therefore, EPA 
proposes to approve the emission reduction credits associated with the 
control measures identified in New York's 2002, 2005 and 2007 RFP 
plans.

Does New York Achieve the RFP Target Level of Emissions for 
Milestone Years 2002, 2005 and 2007?

    New York identified the control measures necessary for achieving 
the required emission reductions and all the measures have been adopted 
and are implemented or scheduled to be implemented. New York's November 
27, 1998 submittal included a cumulative summary of the VOC and 
NOX emission reduction credits associated with the control 
measures identified in Table 3, i.e., credits between 1990-2002, 1990-
2005 and 1990-2007. To verify whether the emission reduction credits 
identified in New York's plan meet the 3 percent per year RFP 
requirement for milestone years 2002, 2005 and 2007, EPA recalculated 
New York's emission reduction credits such that the emission reduction 
credits represent the incremental credits achieved between each 
milestone year, i.e., 1999-2002, 2002-2005 and 2005-2007. Detailed 
tables are contained in the TSD which include among other data, columns 
showing the target level VOC and NOX emissions and the total 
emission reduction credits for the source categories for each milestone 
year. Based on EPA's calculation of the incremental emission reduction 
credits associated with New York's submittal, EPA has determined that 
New York has achieved the RFP required reductions for milestone years 
2002, 2005 and 2007.
    Figure 1 depicts the required 2002, 2005 and 2007 RFP VOC target 
level emissions, the estimated VOC emissions based solely on 
implementing all of the VOC control strategies and the estimated VOC 
equivalent emissions with NOX substitution based on 
implementing all of the control strategies identified in table 3. The 
RFP target levels for milestone years 2002, 2005 and 2007 are 684.07 
tpd, 589.86 tpd and 528.32 tpd, respectively. The projected controlled 
level of emissions in milestone years 2002, 2005 and 2007 are 622.65 
tpd, 548.83 tpd and 526.9 tpd, respectively. As can be seen from Figure 
1, the VOC equivalent emissions (with substituting NOX for 
VOC) fall below the RFP target levels, therefore, New York has 
demonstrated that the RFP requirements have been met.

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[GRAPHIC] [TIFF OMITTED] TP13AU01.000


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    EPA is proposing to find that New York's RFP Plans contain the 
necessary measures as identified in Table 3 to achieve the required 
emission reductions.

How Did New York Provide for the Contingency Measure Requirement?

Contingency Measures

    In addition to the 2002, 2005 and 2007 RFP Plans, the New York 
submittal also addresses contingency measures required under the Act. 
Section 172(c)(9) of the Act requires states with ozone nonattainment 
areas classified as moderate and above to adopt contingency measures by 
November 15, 1993. Such measures must provide for the implementation of 
specific emission control measures if an ozone nonattainment area fails 
to achieve RFP or to attain the NAAQS within the time-frames specified 
under the Act. Section 182(c)(9) of the Act requires that, in addition 
to the contingency measures required under section 172(c)(9), the 
contingency measure SIP revision for serious and above ozone 
nonattainment areas must also provide for the implementation of 
specific measures if the area fails to meet any applicable milestone in 
the Act. As provided by these sections of the Act, the contingency 
measures must take effect without further action by the state or by the 
EPA Administrator upon failure by the state to: meet RFP emission 
reduction milestones; attainment of the NAAQS by the required deadline; 
or other applicable milestones of the Act. EPA's policy, as provided in 
the April 16, 1992, ``General Preamble for the Implementation of Title 
I of the Clean Air Act Amendments of 1990'' (General Preamble) (57 FR 
13498), states that the contingency measures, in total, must generally 
be able to provide for 3 percent reduction of adjusted 1990 baseline 
emissions beyond the reduction required for a particular milestone 
year. While all contingency measures must be fully adopted rules or 
measures, states can use the measures in two different ways. A state 
can choose to implement contingency measures before the milestone 
deadline. Alternatively, a state may decide not to implement a 
contingency measure until an area has actually failed to achieve a RFP 
or attainment milestone. In the latter situation, the contingency 
measure emission reduction must be achieved within one year following 
identification of a milestone failure. The General Preamble indicates 
that the 3 percent reduction ``buffer'' must be maintained through each 
RFP milestone. Therefore, New York must demonstrate that the New York 
Metro Area has enough contingency measure reductions in addition to the 
reductions claimed for the 2002, 2005 and 2007 RFP Plans. Because of 
this requirement, New York's 2002, 2005 and 2007 RFP Plans identify, 
for contingency purposes, a 3 percent emission reduction beyond the 
reduction required for RFP.
    Consistent with guidance provided in the General Preamble, New York 
determined the needed contingency measure reduction by multiplying 3 
percent of the 1990 adjusted base year emissions. Based on this 
calculation, the needed contingency measure reduction for the New York 
Metro Area is 34 TPD of VOC.
    Consistent with the December 29, 1997 EPA memorandum from Richard 
D. Wilson, Acting Assistant Administrator for Air and Radiation 
``Guidance for the Implementing the 1-hour Ozone and the Pre-existing 
PM10 NAAQS,'' states may take credit for NOX emissions 
reductions obtained from sources outside the designated nonattainment 
area for the post-1999 RFP requirement. New York substituted creditable 
NOX reductions from outside the New York Metro Area, 
specifically from the Roseton Generating Station located in Newburgh 
(Northern Orange County, NY). This facility is affected by Subpart 227-
3, NOX Budget program and will provide creditable 
NOX emission reductions for the contingency requirement. 
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 19, 2000, 65 FR 20905, EPA approved the revisions to 
Part 227-3. New York's use of these reductions is consistent with the 
criteria outlined in EPA's guidance. EPA believes that this additional 
flexibility for states in their RFP SIP's is consistent with the Act, 
since reductions from outside a nonattainment area within certain 
limits contribute to progress toward attainment within the area.
    The New York RFP Plans achieve an additional 34 tpd reduction in 
VOC equivalent emissions with NOX substitution beyond the 3 
percent per year RFP ozone precursor reduction, through creditable 
control measures. For this reason, the contingency measure portion of 
the 2002, 2005 and 2007 RFP Plans satisfy the contingency measure 
requirements of the Act. Therefore, EPA proposes to approve the 
contingency measure portion of the plan.

Are New York's RFP Reductions Consistent With EPA's Proposal of the 
1-Hour Ozone Attainment Demonstration?

    On December 16, 1999 (64 FR 70364), EPA proposed that in order for 
New York to attain the 1-hour ozone standard, additional emission 
reductions beyond those contained in the RFP plan and attainment 
demonstration submitted by New York were needed. In that same 
rulemaking, EPA also proposed approval of the New York 1-hour ozone 
attainment demonstration SIP provided New York submits various 
enforceable commitments. On April 18, 2000 New York submitted to EPA 
the necessary enforceable commitments including a commitment to 
participate in the development of regional measures through the OTC 
process and to adopt these measures by October 31, 2001. New York has 
been an active participant in the OTC process of identifying and 
developing regional control strategies that would achieve the necessary 
additional reductions to attain the 1-hour ozone standard in the New 
York Metro Area. EPA proposes to find that with the inclusion of the 
enforceable commitments as submitted by New York on April 18, 2000, New 
York has met the conditions for an approvable attainment demonstration 
and RFP Plan. EPA proposes to approve the enforceable commitments.

Are New York's Transportation Conformity Budgets Approvable?

    By virtue of proposing approval of the 2002, 2005 and 2007 RFP 
Plan, EPA is also proposing approval of the motor vehicle conformity 
emissions budgets for VOC and NOX. On November 16, 1999 (64 
FR 62194) EPA found the 2002 and 2005 budgets adequate for conformity 
purposes. These budgets are consistent with the measures in New York's 
RFP plan. On April 18, 2000, New York revised the 2007 budgets to 
reflect the 1-hour ozone attainment demonstration for the New York 
Metro Area and committed to revise its motor vehicle emissions budget 
within one year of the official issuance of the MOBILE6 motor vehicles 
emissions model for regulatory purposes. On June 9, 2000 (65 FR 36690), 
EPA found the 2007 budget to be adequate for conformity purposes. Since 
New York has committed to revise the 2007 emissions budget that EPA is 
proposing to approve, EPA wants its approval of the 2007 emissions 
budget to last only until an adequate revised budget is submitted 
pursuant to the commitment. EPA believes the revised 2007 budget

[[Page 42486]]

should apply as soon as it is found adequate. EPA does not believe it 
is necessary to wait until it has been approved as a revision to the 
respective plan. This is because EPA recognizes that the revised budget 
will be based on a more advanced technical understanding of motor 
vehicle emissions and control programs. Accordingly, once the revised 
budget is found adequate, it will be more appropriate to use for 
conformity purposes than the originally approved budget.

                                 Table 4.--Emission Budgets for Conformity (tpd)
----------------------------------------------------------------------------------------------------------------
                                                                  2002              2005              2007
                          County                           -----------------------------------------------------
                                                              VOC      NOX      VOC      NOX      VOC      NOX
----------------------------------------------------------------------------------------------------------------
Bronx.....................................................       11       17       10       16        9       12
Kings.....................................................       17       22       16       21       15       17
Nassau....................................................       38       50       36       48       36       44
New York..................................................       15       15       13       14       12       11
Orange (LOCMA)............................................        4        8        4        8        3        6
Queens....................................................       23       31       21       29       19       23
Richmond..................................................        7       10        6       10        7        9
Rockland..................................................        9       15        8       15        7       11
Suffolk...................................................       35       56       33       55       34       51
Westchester...............................................       22       41       20       39       21       37
                                                           -----------------------------------------------------
    Total.................................................    * 179    * 266    * 167    * 254    * 161     *221
----------------------------------------------------------------------------------------------------------------
* The totals represent the actual motor vehicle conformity emissions budgets for VOC and NOX. New York
  subdivided the county budget numbers from the totals and rounded off to the nearest whole number, therefore, a
  sum of the county budget numbers identified in Table 4 may be slighty different from the total budget numbers
  identified in Table 4.

    EPA is proposing to approve New York's 2002, 2005 and 2007 emission 
budgets.

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: 2002, 2005 and 2007 ozone projection emission 
inventories; 2002, 2005 and 2007 RFP Plans; transportation conformity 
budgets; contingency measures; and the enforceable commitments for the 
1-hour ozone attainment demonstration.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. This proposed action merely approves state law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this proposed rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Public Law 104-4). For the same reason, this proposed rule also 
does not significantly or uniquely affect the communities of tribal 
governments, as specified by Executive Order 13084 (63 FR 27655, May 
10, 1998). This proposed rule will not have substantial direct effects 
on the 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 13132 
(64 FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Act. 
This proposed rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Act. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
proposed rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: August 3, 2001.
Kathleen C. Callahan,
Acting Regional Administrator, Region 2.
[FR Doc. 01-20263 Filed 8-10-01; 8:45 am]
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