[Federal Register Volume 66, Number 176 (Tuesday, September 11, 2001)]
[Proposed Rules]
[Pages 47139-47142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22739]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY52-228, FRL-7053-5]


Approval and Promulgation of Implementation Plans; New York's 
Reasonably Available Control Measure Analysis

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the New York State Implementation Plan revision involving 
Reasonably Available Control Measures (RACM). Specifically, EPA is 
proposing to approve New York's RACM Analysis and determination that 
there are no additional RACM that may be implemented to advance the 1-
hour ozone attainment date from 2007 to 2006 in the New York portion of 
the New York-Northern New Jersey-Long Island severe ozone nonattainment 
area.

DATES: Comments must be received on or before October 11, 2001.

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 Requirements for Reasonably Available Control Measures 
(RACM)?
What did New York Include in its RACM Submittal?
How does New York's Analysis Address the RACM Requirement?
What were the Results of New York's RACM Assessment?
Does New York's Submittal Meet the RACM Requirement?
What are EPA's Conclusions?
What Additional Actions is the State Taking to Provide for 
Attainment of the 1-hour Ozone Standard?
Administrative Requirements

What Are the Requirements for Reasonably Available Control Measures 
(RACM)?

    Section 172(c)(1) of the Clean Air Act (the Act) requires State 
Implementation Plans (SIP) to contain RACM as necessary to provide for 
attainment as expeditiously as practicable. EPA interprets the RACM 
requirements of section 172(c)(1) in the ``General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990'' 
(General Preamble), see 57 FR 13498, 13560. In that preamble, EPA

[[Page 47140]]

states the principle that potential measures that would not advance the 
attainment date for an area are not considered RACM. EPA encourages 
states to consider all potentially available measures to determine 
whether they were reasonably available for implementation in the area, 
and whether they would advance the attainment date. Further, the 
General Preamble provides that if the measures are reasonably 
available, states should adopt them as RACM. EPA also indicates that 
states could reject a potential RACM if it would cause substantial 
widespread and long-term adverse impacts. States are encouraged to 
consider local conditions, such as economics or implementation 
concerns, in evaluating potential RACM. On November 30, 1999, John S. 
Seitz, Director of EPA's Office of Air Quality Planning and Standards, 
issued a memorandum entitled, ``Guidance on the Reasonably Available 
Control Measures Requirement and Attainment Demonstration Submissions 
for Ozone Nonattainment Areas'' which reiterated the Act's RACM 
requirements.

What Did New York Include in Its RACM Submittal?

    On June 15, 2001, the New York State Department of Environmental 
Conservation (NYSDEC) submitted to EPA its assessment of whether any 
RACM are available to advance the attainment date, from 2007 to 2006 or 
sooner, for the New York portion of the New York-Northern New Jersey-
Long Island (New York Metro Area) severe ozone nonattainment area. New 
York requested that EPA process in parallel the State's adoption of its 
RACM analysis, which EPA is doing in today's notice. New York held 
public hearings on July 30 and July 31, 2001 and established a public 
comment period which closed on August 6, 2001. The State will provide a 
copy of the public comment record and responsiveness document for EPA 
to consider before taking final rulemaking action.

How Does New York's Analysis Address the RACM Requirement?

    New York's analysis of potential RACM considered information from 
the following sources:

1. Section 108(f) of the Act
2. A list of control measures completed by the State and Territorial 
Air Pollution Program Administrators (STAPPA)/Association of Local Air 
Pollution Control Officials (ALAPCO)
3. Ozone attainment suggested shortfall measures developed by the Ozone 
Transport Commission (OTC)
4. Control measures implemented through the California Federal 
Implementation Plan
5. Control measures implemented in other serious and severe ozone 
nonattainment areas
6. Control measures suggested by commenters during public comment 
periods on New York's attainment SIP, and
7. Transportation Control Measures analyzed by the New York State 
Department of Transportation (NYSDOT) in a document entitled, ``NYSDOT 
Conformity Measure Analysis''
    New York's analysis summed the volatile organic compound (VOC) and 
oxides of nitrogen ( NOX) potential emission reductions from 
the numerous possible measures, including all the reductions from all 
the measures identified in the NYSDOT study. New York's analysis of 
Transportation Control Measures (TCM's) examined the potential 
emissions reductions from measures included in the documents listed 
previously. As part of this evaluation, New York considered local 
circumstances, such as the fact that the New York Metro Area has a high 
population density and a well-established public transit system. Many 
RACM-type measures listed in these documents have already been 
implemented. Moreover, the New York Metro Area is not experiencing the 
same rate of growth as other metropolitan areas in the nation, so that 
RACM's which are appropriate in high growth areas may be less effective 
here. Of the measures examined by New York, only eight measures were 
identified as having any potential to provide significant emission 
reductions and these eight were determined to warrant further 
evaluation as potential RACM's.
    Of the eight measures identified, the most significant portion of 
the potential emission reductions estimates in New York's analysis come 
from the night-time construction and alternative fuels programs. 
Despite their potential emission reductions, these measures are not 
RACM for the 1-hour ozone standard because they cannot be fully 
implemented prior to 2007, they need further analysis of air quality 
benefits/impacts to be considered and will not advance the attainment 
date.

What Were the Results of New York's RACM Assessment?

    The NYSDEC's RACM analysis addresses the reasonableness and 
effectiveness of both additional TCM's and additional stationary source 
control measures. New York concludes that there are no control 
measures, above and beyond what the State is already implementing, that 
would advance the 2007 attainment date specified in the Act for severe 
ozone nonattainment areas, because, the reductions from any potential 
RACM measures in the short-term are small compared to the reductions 
that will be achieved by 2007 through measures that are already in 
place or through measures which the State has previously committed to 
implement. In fact, the New York 1-hour Ozone Attainment SIP for the 
New York Metro Area, the 15 percent Rate of Progress (ROP) plan, the 9 
percent post-1996 ROP plan and the continuing 3 percent per year 
Reasonable Further Progress emission reductions, already require 
emission controls on a wide variety of sources. Nevertheless, New York 
clearly states that there is nothing within its RACM assessment that 
precludes it from adopting the measures discussed in the assessment for 
the purpose of meeting the requirements for motor vehicle 
transportation conformity, attainment of the 8-hour ozone standard or 
any other air quality standard, and control of certain air toxins, or 
for any other reason to protect public health. In fact, over the period 
beyond the attainment date, some of these strategies may provide 
significant benefit. In some instances, there are efforts already 
underway to implement these.
    The combination of measures examined by New York indicate potential 
reductions, but it is important to note that the estimate did not 
consider practical limitations in their implementation prior to 2007. 
Unfortunately, many of the actions needed to bring these measures to 
full fruition cannot be fully implemented in time to advance the 
attainment date from 2007 to 2006 or sooner. For the NYSDOT study in 
particular, the measures are currently under interagency review and 
represent values at the higher end of the potential emissions reduction 
range and not values that could potentially be achieved before 2007.
    Of the possible emission reductions identified in the State's 
submittal, a significant portion of those reductions are estimated from 
construction/ozone action days, alternate fuels and clean fuel fleet 
programs.

Construction/Ozone Action Day Program

    The construction analysis assumes the cessation of construction 
operations on ozone action days or the shifting of emissions from day-
time to night-time through day-time construction bans. The ozone action 
day reductions would

[[Page 47141]]

be episodic, and not continuous emission reductions. While this measure 
may offer long term emission reductions to help achieve the 8-hour 
ozone standard, significant issues need to be addressed before it can 
be considered a RACM. These include analyses of: (1) Quantity of night-
time construction which already takes place to ensure that emission 
reduction benefits are not ``double counted;'' (2) air quality impacts 
to ensure that the night-time emissions for New York are not 
contributing to ozone problems in downwind nonattainment areas; (3) air 
pollutant emissions from generators needed for lighting and supporting 
night-time activities; and (4) costs associated with implementing the 
construction/ozone action day program.

Alternate Fuels Consumption

    New York's analysis of the impact of alternate fuel-consuming 
vehicles examined the benefits associated with conversion of all 
government vehicles in the New York Metro Area, regardless of vehicle 
weight, age or function, to use fuels which exhibit fewer emissions 
than gasoline-consuming vehicles. The analysis concluded that while 
replacement of all government vehicles to alternate fuel-consuming 
vehicles has the potential for significant emission reductions and has 
received strong encouragement by the Federal, state and local 
governments, that magnitude of vehicle replacement is not practicably 
achievable by the 2007 attainment date. There is a lack of sufficient 
infrastructure currently in place for supply of alternate fuel for all 
government fleets. In addition, the analysis double counts reductions 
from vehicles that have already been converted. The New York City 
Department of Transportation currently only has two compressed natural 
gas (CNG) bus refueling stations capable of handling 200 buses apiece, 
with plans to convert five more stations by 2005. This would give a 
total capacity of seven stations for 1400 buses, out of a fleet of 3000 
buses available for conversion. Moreover, the analysis does not 
recognize that existing non-CNG buses may have a useful life that 
extends beyond 2007 and that it may not be economically feasible to 
replace these buses before completion of their useful life. The promise 
of substantial emission reductions associated with this measure is 
contingent on a phase-in period for fleet vehicle turnover and further 
infrastructure development, which can be achievable, but not in time to 
advance attainment by 2006 or sooner. Therefore, this measure cannot be 
considered a RACM. Nevertheless, EPA believes alternate fuels for 
government vehicle fleets does offer potential emissions reductions to 
help achieve long-term environmental benefits.

Clean Fuel Fleet Program

    In examining the potential emission reductions for the clean fuel 
fleet program, it should be noted that they were estimated using 
MOBILE5b modeling projected for the year 2010, not 2006, and were 
modeled before EPA's recent heavy-duty engine regulations were 
promulgated (40 CFR Parts 85 and 86). The national heavy-duty engine 
standards which are required beginning with model year 2002 for most 
manufacturers, are actually more stringent than the applicable heavy-
duty clean fuel fleet emission standards. Consequently, actual emission 
reductions from a heavy-duty clean fuel fleet program would be 
significantly less than those projected, and to a large extent would be 
occurring anyway.

Remaining Five Measures

    The potential emission reductions associated with the remaining 
five measures that NYSDOT examined (maintenance equipment, ozone action 
days, commuter choice, coatings and aircraft support programs) did not 
consider practical limitations in their implementation prior to 2007. 
Many of the actions needed to bring these five measures to full 
fruition cannot be fully implemented in time to advance the attainment 
date from 2007, and therefore, are not considered RACM. In addition, 
some of these measures are episodic and would not represent continuous 
emission reductions. Although these measures may offer long term 
emission reductions to help achieve the 8-hour ozone standard, a number 
of analyses must be conducted before any one of these measures can be 
considered a RACM. These include: (1) An analysis that the emission 
reduction benefits are not ``double counted'' because the program may 
already exist in some other form; (2) an analysis that deferred 
emissions contribute to a reduction in ozone (e.g., limiting use of 
lawn equipment on ozone alert days may actually be deferring use to 
subsequent days in the same ozone season); and (3) an economic analysis 
of the costs associated with implementing the programs.

Does New York's Submittal Meet the RACM Requirement?

    EPA has reviewed New York's RACM analysis documentation, the 
process used by the New York State agencies to review and select TCM's 
and other possible reduction measures for point and area sources for 
the New York Metro Area and has determined that New York's RACM 
analysis meets the Act's RACM requirement. Although EPA encourages 
areas to implement available RACM measures as potentially cost 
effective methods to achieve emissions reductions in the short term, 
EPA does not believe that section 172(c)(1) requires implementation of 
potential RACM measures that either are not economically feasible or 
produce relatively small emissions reductions that will not be 
sufficient to allow the area to achieve attainment in advance of full 
implementation of all other required measures. The attainment 
demonstration for the New York Metro Area indicates that the ozone 
benefit expected from regional NOX reductions is 
substantial.
    The term ``reasonably available control measure'' is not actually 
defined among the definitions in the Act. Therefore, the EPA 
interpretation that potential measures may not be RACM if they require 
an intensive and costly effort for numerous small area sources is based 
on the common sense meaning of the phrase, ``reasonably available.'' A 
measure that is reasonably available is one that is technologically and 
economically feasible and that can be readily implemented. New York's 
analysis of its ability to implement RACM includes consideration of 
whether potential small emissions reductions, from a multitude of 
sources, create an undue administrative burden to the states and 
regulated entities. As stated in the General Preamble, EPA believes 
that states can reject potential measures based on local conditions 
including cost, see 57 FR 13561.

What Are EPA's Conclusions?

    EPA has evaluated New York's submittal for consistency with the 
Act, applicable EPA regulations, and EPA policy. EPA is proposing to 
approve New York's RACM analysis and to determine that there are no 
additional RACM's that, when implemented, would advance the attainment 
date in the New York Metro Area from 2007 to 2006 or sooner. However, 
EPA does believes that the control strategies considered in New York's 
RACM analysis may offer some benefits in providing for attainment of an 
8-hour ozone standard, and we recommend that New York and other states 
in the OTR revisit these control strategies for an 8-hour standard.
    What Additional Actions Is the State Taking to Provide for 
Attainment of the 1-hour Ozone Standard?

[[Page 47142]]

    New York's 1994 attainment demonstration documented that the New 
York Metro Area could not attain the ozone standard without significant 
emission reductions from upwind sources. This documentation, along with 
documentation developed by EPA, led EPA to promulgate the 
NOX SIP Call (63 FR 57356) to reduce the transport of 
pollution into downwind nonattainment areas. In the NOX SIP 
Call, EPA concluded that reductions from various upwind states were 
necessary to provide for timely attainment in various downwind states. 
The NOX SIP Call therefore established requirements for 
control of sources of significant emissions in all upwind states. 
However, these reductions are not scheduled for full implementation 
until May 2003. Further, the United States Court of Appeals for the 
District of Columbia Circuit recently ordered that EPA could not 
require full implementation of the NOX SIP Call prior to May 
2004. Michigan, et al., v. EPA, D. C. Cir. No. 98-1497, Order of Aug. 
30, 2000. New York complied with the NOX SIP Call and 
established a NOX trading program as its control program. On 
May 22, 2001 (66 FR 28059), EPA approved New York's regulations to 
comply with the NOX SIP Call. New York requires full 
implementation by May 2003 for its NOX sources.
    New York, in cooperation with the other OTR states, worked to 
consider regional control measures and strategies to bring the New York 
Metro Area into attainment of the ozone standard. New York has 
committed to adopt the measures to account for this shortfall noted 
previously by October 31, 2001. In fact, New York has taken a 
leadership role 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. New York will be 
implementing regulations consistent with the OTC which include; 
revisions to the consumer products and architectural and industrial 
coatings rules, a mobile equipment refinishing rule, controls on 
portable fuel containers as well as the NOX model rule 
(NOX reductions from sources that are not included in the 
1994 OTC NOX Memorandum of Understanding for regional 
NOX reductions or covered by EPA's NOX SIP Call). 
New York has begun its regulatory development process for these 
measures.

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, Oxides of Nitrogen, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: August 31, 2001.
William J. Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 01-22739 Filed 9-10-01; 8:45 am]
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