[Federal Register Volume 72, Number 236 (Monday, December 10, 2007)]
[Notices]
[Pages 69700-69701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23832]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5162-N-02]


Conformity Determination for the East River Waterfront Esplanade 
and Piers Project City of New York, New York County, NY

AGENCY: Office of the Assistant Secretary for Community Planning and 
Development, HUD.

ACTION: Notice.

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SUMMARY: In accordance with the federal Clean Air Act General 
Conformity rule, the Lower Manhattan Development Corporation (LMDC) has 
prepared a general conformity determination (Conformity Determination) 
for the East River Waterfront Esplanade and Piers Project (the Selected 
Project) pursuant to the October 2007 National Environmental Policy Act 
Record of Decision and Lead Agency Findings Statement (ROD). LMDC is a 
subsidiary of the Empire State Development Corporation (a political 
subdivision and public benefit corporation of the State of New York) 
and is responsible, pursuant to federal statute 42 U.S.C. 5304(g) as 
the recipient of U.S. Department of Housing and Urban Development (HUD) 
Community Development Block Grant program funds, for conducting reviews 
of projects receiving HUD funds in accordance with 24 CFR part 58, as 
well as other laws and regulations. These responsibilities include 
compliance with the National Environmental Policy Act and the Clean Air 
Act, 42 U.S.C. 7401 et seq. (particularly sections 7506(c) and (d)), in 
accordance with 24 CFR 58.4 and 58.5.
    The Selected Project will improve a two mile portion of the East 
River waterfront in Manhattan and create a City-owned public open 
space. The area of the Selected Project will generally encompass the 
waterfront, the upland area adjacent to and under the elevated FDR 
Drive and South Street extending from the Whitehall Ferry Terminal and 
Peter Minuit Plaza on the South to East River Park on the North, as 
well as Pier 15, the New Market Building pier, Pier 35, Pier 36, and 
Pier 42. The Selected Project is fully described in the Final 
Environmental Impact Statement for the East River Waterfront Esplanade 
and Piers Project.
    The Selected Project is located in Manhattan, New York County, 
which has been designated by the United States Environmental Protection 
Agency (EPA) as a moderate non-attainment area for particulate matter 
less than 10 micrometers in aerodynamic diameter (PM10), a 
non-attainment area for particulate matter less than 2.5 micrometers in 
aerodynamic diameter (PM2.5), and a moderate non-attainment 
area for the 8-hour ozone standard. New York County was previously 
designated by the EPA as a severe non-attainment area for the 1-hour 
ozone standard. The area is in attainment for all other criteria 
pollutants: Nitrogen dioxide (NO2), lead, sulfur dioxide 
(SO2), and carbon monoxide (CO). MDC's review has been 
conducted consistent with the requirements of 40 CFR Part 93, Subpart 
B: ``Determining Conformity of Federal Actions to State or Federal 
Implementation Plans'' issued on November 30, 1993 (as amended on July 
17, 2006, to address PM2.5 emissions). LMDC has determined 
that, during the peak construction year of 2008, potential emissions 
for all the criteria pollutants would be below the de minimis 
thresholds established under federal regulations at 40 CFR 93.153(b) 
which are currently applicable in New York County. Nonetheless, the 
construction emissions could exceed the 25 tons per year (tpy) annual 
nitrogen oxides (NOX) threshold for severe ozone non-
attainment areas, which was applicable to New York County under the 
previous 1-hour ozone standard designation. Accordingly, LMDC has 
prepared its Conformity Determination to demonstrate that the 
federally-funded portion of the Selected Project will conform with the 
1-hour ozone State Implementation Plan (SIP). Pursuant to the 
requirements of 40 CFR 93.153(h)(4), this notice lists the activities 
that are presumed to conform to the New York ozone SIP.
    The Draft Conformity Determination for the Proposed East River 
Waterfront Esplanade and Piers Project was made available for public 
review beginning May 18, 2007. Notices of its availability were 
published in the New York State Department of Environmental 
Conservation Environmental Notice Bulletin and newspapers of general 
circulation on May 30, 2007. The Draft Conformity Determination was 
also published in the Federal Register on July 27, 2007. No comments on 
the Draft Conformity Determination were received.

ADDRESSES: The Conformity Determination is available at the following 
location: Lower Manhattan Development Corporation, One Liberty Plaza, 
20th Floor, New York, NY 10006. The Conformity Determination is also 
available on the LMDC Web site at http://www.renewnyc.com in the 
``Planning, Design & Development'' section and is an exhibit to LMDC's 
ROD.

FOR FURTHER INFORMATION CONTACT: Christina Hynes, Lower Manhattan 
Development Corporation, One Liberty Plaza, 20th Floor, New York, NY 
10006; Telephone: (212) 962-2300; Fax: (212) 962-2431.

SUPPLEMENTARY INFORMATION: 

A. Background

    The Clean Air Act (CAA), as amended in 1990, defines a non-
attainment area (NAA) as a geographic region that has been designated 
as not meeting one or more of the National Ambient Air Quality 
Standards (NAAQS). The Selected Project is located in New York County, 
which has been designated by the EPA as a moderate NAAQS NAA for 
PM10, a NAA for PM2.5, and a moderate NAA for 
ozone. The area is in attainment for all other criteria pollutants: 
Nitrogen dioxide (NO2), lead, sulfur dioxide 
(SO2), and carbon monoxide (CO). EPA had re-designated New 
York City as in attainment for CO on April 19, 2002 (67 FR 19337); the 
CAA requires that a maintenance plan ensure continued compliance with 
the CO NAAQS for former NAAs.
    A State Implementation Plan (SIP) is a state's plan on how it will 
meet the NAAQS under the deadlines established by the CAA. In November 
1998, New York State submitted its Phase II Alternative Attainment 
Demonstration for Ozone, which addressed attainment of the 1-hour ozone 
NAAQS by 2007 (New York submitted subsequent filings to EPA in 
subsequent years). On February 4, 2002, EPA approved New York's 1-hour 
ozone SIP (67 FR 5170).
    The general conformity requirements in 40 CFR part 93, subpart B, 
apply to those federal actions that are located in a non-attainment or 
maintenance area, and that are not subject to transportation conformity 
requirements at 40 CFR part 51, subpart T, or part 93, subpart A,

[[Page 69701]]

where the action's direct and indirect emissions have the potential to 
emit one or more of the criteria pollutants or precursors, in the case 
of ozone and PM2.5, at emission rates equal to or exceeding 
the prescribed rates at 40 CFR 93.153(b), or where the action 
encompasses 10 percent or more of a NAA or maintenance area's total 
emissions inventory for that pollutant. In the case of New York County, 
the prescribed annual rates are 50 tons of VOCs and 100 tons of 
NOX (ozone precursors in moderate 8-hour ozone NAA and 
PM2.5 precursors in PM2.5 NAA), 100 tons of CO 
(CO maintenance area), 100 tons of PM10 (moderate 
PM10 NAA), 100 tons of PM2.5 (PM2.5 
NAA), and 100 tons of SO2 (PM2.5 precursor in 
PM2.5 NAA).
    LMDC has determined that the total annual direct and indirect 
emissions of all such criteria pollutants from the Selected Project are 
less than the de minimis rates prescribed in 40 CFR 93.153(b), as 
currently in effect, that would trigger the requirement to conduct a 
general conformity determination. Therefore, a general conformity 
determination is not necessarily required by current federal 
regulations. Nonetheless, temporarily, during construction, annual 
NOX emissions are predicted to exceed the threshold of 25 
tons per year that would apply to a severe ozone non-attainment area 
under the former 1-hour ozone NAAQS. Accordingly, LMDC prepared a 
Conformity Determination to demonstrate the Selected Project's 
conformity with the ozone SIP.

B. Requirements of the Conformity Determination

    The purpose of the conformity analysis is to establish that the 
Selected Project will conform to the New York ozone SIP, thereby 
demonstrating that total direct and indirect emissions of the ozone 
precursors, in this case NOX, from the Selected Project, 
will not:
     Cause or contribute to any new violation of any standard 
in the area,
     Interfere with provisions in the applicable SIP for 
maintenance of any standard,
     Increase the frequency or severity of any existing 
violation of any standard in any area, or
     Delay timely attainment of any standard or any required 
interim emission reductions or other milestones in the SIP for purposes 
of--
    1. A demonstration of reasonably further progress (RFP),
    2. A demonstration of attainment, or
    3. A maintenance plan.
    For the purposes of a general conformity determination, direct and 
indirect emissions are defined as follows (40 CFR 93.152):
     Direct Emissions: Those emissions of a criteria pollutant 
or its precursors that are caused or initiated by the Federal action 
and occur at the same time and place as the action;
     Indirect Emissions: Those emissions of a criteria 
pollutant or its precursors that--
    1. Are caused by the federal action, but may occur later in time 
and/or may be further removed in distance from the action itself but 
are still reasonably foreseeable; and
    2. The federal agency can practicably control and will maintain 
control over due to a continuing program responsibility of the federal 
agency.
    LMDC has determined that the predicted emissions due to the 
Selected Project during construction that should be subject to its 
general conformity review include direct emissions from (1) non-road 
engines operating on-site during construction, (2) marine vessels 
carrying materials to and from the site and conducting other work along 
the waterfront, and (3) emissions from construction-related vehicles 
traveling to and from the site.

C. Presumption of Conformity

    The Selected Project will be located in an area previously 
designated as a severe ozone non-attainment area under the 1-hour ozone 
NAAQS. The NOX emissions during two years of construction 
were predicted to potentially exceed the prescribed level for severe 
ozone non-attainment areas (25 tons per year). Therefore, LMDC has 
determined the following:
     The methods for estimating direct and indirect emissions 
from the Selected Project meet the requirements of 40 CFR 93.159.
     The Selected Project was predicted to result in the 
emission of up to 70.5 tons and 31.2 tons of NOX per year in 
2008 and 2009, respectively.
     All construction-related NOX emissions, 
including those from the Selected Project, are included in the 
emissions budget specified in the New York State Implementation Plan 
for Ozone--Phase II Alternative Attainment Demonstration.
     The Selected Project does not cause or contribute to any 
new violation, or increase the frequency or severity of any existing 
violation, of the standards for the pollutants addressed in 40 CFR 
93.158.
     The Selected Project does not violate any requirements or 
milestones in the ozone SIP.
    Based on these determinations, the Selected Project is presumed to 
conform to the ozone SIP for the project area. The activities that are 
presumed to conform include all construction-related activities that 
will receive federal funding for the East River Waterfront Esplanade 
and Piers Project.

    Dated: November 30, 2007.
Nelson R. Breg[oacute]n,
General Deputy Assistant Secretary for Community Planning and 
Development.
 [FR Doc. E7-23832 Filed 12-7-07; 8:45 am]
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