[Federal Register Volume 78, Number 71 (Friday, April 12, 2013)]
[Proposed Rules]
[Pages 21867-21871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08670]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2013-0192, FRL-9802-1]


Approval and Promulgation of Implementation Plans; Revision to 
the New York State Implementation Plan for Carbon Monoxide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing action 
on a proposed State Implementation Plan revision submitted by the New 
York State Department of Environmental Conservation. This revision 
consists of a change to New York's November 15, 1992 Carbon Monoxide 
Attainment Demonstration that would remove a reference to a limited 
off-street parking program as it relates to the New York County portion 
of the New York-Northern New Jersey-Long Island, NY-NJ-CT Carbon 
Monoxide attainment area. EPA is proposing approval of this State 
Implementation Plan revision because it will not interfere with 
attainment or maintenance of the national ambient air quality standards 
in the affected area.

DATES: Comments must be received on or before May 13, 2013.

ADDRESSES: Submit your comments, identified by Docket Number EPA-R02-
OAR-2013-0192, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected]
     Fax: 212-637-3901
     Mail: Richard Ruvo, Acting Branch Chief, Air Programs 
Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 
25th Floor, New York, New York 10007-1866.
     Hand Delivery: Richard Ruvo, Acting Branch Chief, Air 
Programs Branch, Environmental Protection Agency, Region 2 Office, 290 
Broadway, 25th Floor, New York, New York 10007-1866. Such deliveries 
are only accepted during the Regional Office's normal hours of 
operation. The Regional Office's official hours of business are Monday 
through Friday, 8:30 to 4:30 excluding federal holidays.
    Instructions: Direct your comments to Docket No. EPA-R02-OAR-2013-
0192. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters or any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is

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not publicly available, e.g., CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available either electronically in 
http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 
25th Floor, New York, New York 10007-1866. EPA requests, if at all 
possible, that you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Henry Feingersh 
([email protected]), Air Programs Branch, Environmental 
Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-
1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What action is EPA proposing?
II. What is the background information for this proposal?
III. What was included in New York's proposed SIP submittal?
IV. What are the Carbon Monoxide trends?
V. What is EPA's evaluation?
VI. What are EPA's conclusions?
VII. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    The EPA is proposing to approve a revision to the New York State 
Implementation Plan (SIP) in response to a request submitted by the New 
York State Department of Environmental Conservation (New York) on April 
5, 2007. This revision consists of a change to New York's November 15, 
1992 Carbon Monoxide Attainment Demonstration that would remove a 
reference to a limited off-street parking program as it relates to the 
New York County portion of the New York-Northern New Jersey-Long 
Island, NY-NJ-CT Carbon Monoxide attainment area. EPA's proposal is to 
remove the off-street parking program that was identified by New York 
as one of the Transportation Control Measures in New York's 1992 SIP 
submittal. This limited off-street parking program is imposed and 
enforced by the City of New York. EPA is proposing approval of this SIP 
revision because it will not interfere with attainment or maintenance 
of the national ambient air quality standards in the affected area.

II. What is the background information for this proposal?

    New York submitted a Carbon Monoxide SIP on November 13, 1992 
entitled ``Carbon Monoxide Attainment Demonstration--New York 
Metropolitan Area'' and EPA published a final approval on July 25, 1996 
(61 Federal Register (FR) 38594.) These actions became effective on 
August 26, 1996. On November 23, 1999, New York submitted a request to 
EPA to redesignate this area from nonattainment to attainment of the 
National Ambient Air Quality Standards (NAAQS) for Carbon Monoxide. EPA 
published a final approval of this request on April 19, 2002 (67 FR 
19337) and the action became effective on May 20, 2002.
    On April 5, 2007, New York submitted a request to revise the SIP to 
remove a reference to a limited off-street parking program as it 
relates to New York County. This proposed SIP revision underwent a 
public hearing and public notice and comment process. In a July 26, 
2007 letter to the State, the EPA responded to the April 5, 2007 
revision request by asking for the public hearing record including a 
response to comments received. New York submitted this additional 
information to EPA in a letter dated October 5, 2012.
    The New York portion of the New York-Northern New Jersey-Long 
Island, NY-NJ-CT CO attainment area is composed of the five boroughs of 
New York City and the surrounding counties of Nassau, Suffolk, 
Westchester and Rockland. This is collectively referred to as the New 
York City Metropolitan Area or NYMA.
    The NYMA has been meeting the Carbon Monoxide (CO) standard for 
over twenty years, since 1992, and CO levels have continuously trended 
downward. As discussed later in Section IV--``What are the Carbon 
Monoxide Trends,'' current 8-hr CO levels are less than \1/3\ of the 8-
hr standard while 1-hr CO levels not only achieve the 1-hour standard, 
they are much less than the 8-hr standard.

III. What was included in New York's proposed SIP submittal?

    New York submitted to EPA a proposed SIP revision that includes a 
change to the New York State Carbon Monoxide SIP. The change is a 
clarification to a commitment identified in New York's November 13, 
1992 submittal. New York also submitted air quality monitoring data 
from 1997 through 2011 along with an ambient monitoring trends analysis 
for the period 1988 through 2011. This analysis shows a marked downward 
trend in CO ambient concentrations. These concentrations are, and have 
been for a number of years now, lower than the background values used 
in the 1992 CO SIP.
    In addition, New York held a public hearing on July 17, 2007 and 
written comments were accepted until July 24, 2007, which was an 
extension of the original May 30, 2007 deadline. New York submitted to 
EPA a summary of the public comments received and responses to those 
comments.

IV. What are the Carbon Monoxide trends?

    There has been a steadily declining Carbon Monoxide trend in the 
NYMA since the 1980's. The last few years have seen a ``bottoming out'' 
of these concentrations. CO values have been dropping steadily for 
several years and are now lower than background values were at the time 
of the CO SIP attainment demonstration in 1992. While we observed 
concentrations over 13 ppm in the 1980's, we are now seeing these 
values at approximately 2 ppm. This means we are seeing almost no 
contributions from automobiles at this time. Much of this improvement 
can be attributed to newer cars with advanced anti-pollution controls.
    The following chart shows how the CO monitored design values in New 
York County have declined from 1988-1989 through 2010-2011. The design 
values are derived by first taking the second highest 8-hour value for 
each site in the county for each year. Of these, the highest value for 
each year (from all of the sites in the county) is the design value for 
that year. Thus, the design value went from 13.5 ppm in 1988-1989 to 
1.8 ppm in 2010-2011.

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[GRAPHIC] [TIFF OMITTED] TP12AP13.005

V. What is EPA's evaluation?

    Revisions to SIP-approved control measures must meet the 
requirements of the Clean Air Act (CAA) section 110(l) to be approved 
by EPA. Section 110(l) states: ``The Administrator shall not approve a 
revision of a plan if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress (as 
defined in section 171), or any other applicable requirement of this 
Chapter.''
    EPA interprets section 110(l) to apply to all requirements of the 
CAA and to all areas of the country, whether attainment, nonattainment, 
unclassifiable, or maintenance for one or more of the six criteria 
pollutants. EPA also interprets section 110(l) to require a 
demonstration addressing all pollutants whose emissions and/or ambient 
concentrations may change as a result of the SIP revision. Thus, for 
example, modification of a SIP-approved measure which may impact 
nitrogen oxide emissions, may also impact particulate matter emissions, 
and this would have to be evaluated. The scope and rigor of an adequate 
section 110(l) demonstration of noninterference depends on the air 
quality status of the area, the potential impact of the revision on air 
quality, the pollutant(s) affected, and the nature of the applicable 
CAA requirements.
    As discussed previously, the air quality data shows a striking 
downward trend in ambient CO concentrations in the NYMA area for the 
past twenty years. This dramatic improvement can be attributed to the 
Federal Motor Vehicle Turnover Program along with advanced anti-
pollution controls on motor vehicles.
    The NYMA has been attaining the CO standard since 1993. As 
discussed in Section II, above, on April 19, 2002, EPA published a 
final rule redesignating the area to attainment. A maintenance plan 
explaining how the area will maintain the CO standard has been in place 
since that time. Action on a second 10 year maintenance plan explaining 
how the area will continue to attain the CO standard for another 10 
years will be taken in a separate Federal Register Notice.
    It is important to note, aside from ozone, the NYMA is attaining 
the NAAQS for all of the other criteria pollutants. The area has been 
attaining the SO2, NO2, and Pb standards for many 
years. For CO, the area was redesignated to attainment in 2002 and is 
currently a maintenance area. For ozone, the area has been designated 
nonattainment and continues to be designated nonattainment. However, 
the area has attained the 1-hour ozone standard and has attained the 
1997 8-hour ozone standard by its required attainment date. In 
addition, the area has been attaining the annual and 24-hour 
PM2.5 standards and New York has proposed redesignations for 
both PM standards. EPA will be taking action on the PM2.5 
standards in a separate Federal Register Notice.
    EPA reviewed New York's proposed change to its CO attainment 
demonstration to determine whether the change will add or contribute to 
any air quality violations. EPA proposes to determine that removal of 
the limited off-street parking program from the previous federally 
approved CO attainment demonstration will not add or contribute to an 
already existing air quality violation, primarily because there is no 
existing air quality violation. EPA, in essence, continues to evaluate 
the New York CO SIP because New York continues to have their CO 
maintenance plan in place. This plan meets the requirements set forth 
in section 175A of the CAA and provides for continued attainment of the 
CO NAAQS.
    As for the only other pollutants, ozone and PM2.5, for 
which there may be any potential impact on air quality, EPA notes that 
for each of these pollutants, New York has developed several other 
revisions to the SIP to continue the reductions of emissions toward 
meeting the NAAQS. Specifically for ozone, EPA approved New York's 
reasonable further progress plan and attainment demonstration for NYMA 
(see 76 FR 51264 (Aug. 18, 2011) and 78 FR 9596 (Feb. 11, 2013), 
respectively) which included those measures necessary to attain and 
maintain the standard. Also, on June 15, 2001 and supplemented on 
October 1, 2001, New York submitted to EPA its assessment of whether 
any Reasonably Available Control Measures (RACM) are available to 
advance the 1-hour ozone attainment date from 2007 to an earlier year 
for the New York Metro Area. In this study New York evaluated the 
emissions reductions associated with several transportation control 
measures. EPA approved New York's RACM Analysis on February 4,

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2002 (67 FR 5170) and determined that there were no additional RACMs 
(including the transportation control measures) that, when implemented, 
would advance the attainment date in the NYMA from 2007 to an earlier 
year. In addition, to address the RACM requirement for the 1997 8-hour 
ozone standard, New York did a similar analysis and determined that 
there were additional measures that New York State believes represent 
RACM as they are reasonably available and can be expected to advance 
the attainment date and contribute to reasonable further progress. 
However, the measures identified by New York were all stationary source 
related and have since been adopted and implemented by New York State. 
On July 13, 2010 (75 FR 43066), EPA approved New York's RACM analysis 
for the 1997 8-hour ozone standard.
    New York developed a RACM analysis for the 1997 annual 
PM2.5 NAAQS that was submitted to EPA on October 27, 2009. 
Although EPA has not yet proposed action on the PM2.5 RACM 
analysis submitted by the state, New York has adopted and implemented 
control measures that will provide for additional emissions reductions 
of PM2.5 and its precursors since the NYMA first 
demonstrated attainment with the 1997 annual PM2.5 NAAQS. 
The measures will be undergoing EPA rulemaking in the near future and, 
if approved, will become federally enforceable. These measures will 
collectively help ensure continued compliance with both the 1997 annual 
and 2006 24-hour PM2.5 NAAQS. These measures include New 
York's Hot Mix Asphalt Production Plants rule (6 NYCRR Part 212.12), 
Reasonably Available Control Technology for Major Facilities of Oxides 
of Nitrogen (6 NYCRR Part 227-2), and Best Available Retrofit 
Technology (6 NYCRR Part 249).
    EPA recognizes that DEC's April 7, 2007 SIP submittal is asserting 
that off-street parking is regulated by the New York City Department of 
City Planning and its zoning resolutions and not by the CO SIP.
    EPA proposes to determine that removal of this one Transportation 
Control Measure (TCM) will not interfere with air quality or attainment 
of the NAAQS. In addition, New York has revised the rules which address 
TCMs before and concluded not to rely on these similar measures in more 
recent SIP actions. This provides further evidence to lead EPA to 
determine that this measure will not have an impact on air quality.
    We are aware that any new construction project using federal funds 
must undergo a review pursuant to the National Environmental Policy Act 
(NEPA), [42 U.S.C. 4321 et seq. Specifically, all federal agencies are 
to prepare detailed assessments of the environmental impacts of and 
alternatives to major federal actions significantly affecting the 
environment. These documents are commonly referred to as environmental 
impact statements (EIS). The public has an important role in the NEPA 
process, particularly during scoping, in providing input on what issues 
should be addressed in an EIS and in commenting on the findings in an 
agency's NEPA documents. The public can participate in the NEPA process 
by attending NEPA-related hearings or public meetings and by submitting 
comments directly to the lead agency. The lead agency must take into 
consideration all comments received from the public and other parties 
on NEPA documents during the comment period.
    New York has demonstrated that the changes to its CO SIP will not 
interfere with attainment and maintenance of the NAAQS for all criteria 
pollutants. EPA proposes to find that New York has satisfied the 
demonstration of noninterference required by CAA section 110(l).

VI. What are EPA's conclusions?

    EPA is proposing to approve New York's request to remove a 
reference to a limited off-street parking program in New York County 
because this SIP revision will not cause an exceedance of the NAAQS. 
EPA reviewed the public comments from the July 17, 2007 public hearing 
record. EPA agrees with New York's responses that New York City 
continues to run the limited off-street parking program and, although 
New York City may have relaxed aspects of the program, there is no 
evidence that this relaxation caused any degradation in CO air quality 
in the area. In addition, New York did not rely on any emission 
reductions from this program in its SIP modeling to support the 
demonstration of attainment of the CO standard. Finally, any new 
construction project in the area would have to undergo a NEPA process. 
The NEPA process ensures that a NAAQS violation would not occur due to 
the project in question.
    EPA's review of the materials submitted indicates that New York has 
revised its CO SIP in accordance with the requirements of the CAA, 40 
CFR Part 51 and all of EPA's technical requirements for a CO SIP. 
Therefore, EPA is proposing to approve the removal of a reference to a 
limited off-street parking program in New York County.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country

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located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: April 1, 2013.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2013-08670 Filed 4-11-13; 8:45 am]
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