Approval and Promulgation of Implementation Plans; Onondaga County Carbon Monoxide Maintenance Plan Revision; State of New York

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is approving a State Implementation Plan (SIP) revision submitted by the State of New York. This revision will establish an updated ten-year carbon monoxide (CO) maintenance plan for the Onondaga County attainment area.

Onondaga County was redesignated to attainment of the CO National Ambient Air Quality Standard (NAAQS) on September 29, 1993 and a maintenance plan was also approved at that time. By this action, EPA is approving the New York State Department of Environmental Conservation's (New York) second maintenance plan for Onondaga County because it provides for continued attainment for an additional ten years of the CO NAAQS. In addition, EPA is approving New York's revised Part 225-3 (Oxygenated Gasoline Program provisions).

DATES:

This rule is effective on November 7, 2005, without further notice, unless EPA receives adverse written comment by October 11, 2005. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Regional Material in EDocket (RME) ID Number R02-OAR-2005-NY-0002 by one of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. Agency Web site: http://docket.epa.gov/rmepub/. Regional Material in EDocket (RME), EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Once in the system, select quick search, then key in the appropriate RME Docket identification number. Follow the on-line instructions for submitting comments.

3. E-mail: werner.raymond@epa.gov.

4. Fax: (212) 637-3901.

5. Mail: RME ID Number R02-OAR-2005-NY-0002, Raymond Werner, Chief, Air Programs Branch, U.S. Environmental Protection Agency, 290 Broadway, New York, NY 10007-1866.

6. Hand Delivery or Courier: Deliver your comments to: Raymond Werner, Chief, Air Programs Branch, U.S. Environmental Protection Agency, 290 Broadway, New York, NY 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 Regional Material in EDocket (RME) ID Number R02-OAR-2005-NY-0002. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://docket.epa.gov/rmepub/ , 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 Regional Material in EDocket (RME), regulations.gov, or e-mail. The EPA RME Web site and the Federal regulations.gov Web site are anonymous access systems, 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 e-mail comment directly to EPA without going through RME or regulations.gov, your e-mail 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, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the Regional Material in EDocket (RME) index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in RME or in hard copy at Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA Region 2 Regional Office, 290 Broadway, New York, NY.

EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Henry Feingersh, U.S. Environmental Protection Agency, Air Programs Branch, 290 Broadway, New York, NY 10007-1866, telephone number (212) 637-4249, fax number (212) 637-3901, e-mail feingersh.henry@epa.gov.

Copies of the State submittals are available at the following addresses for inspection during normal business hours:

Environmental Protection Agency, Region II 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, Albany, New York 12233.

SUPPLEMENTARY INFORMATION:

The following table of contents describes the format for this section:

I. What Is the Nature of EPA's Action?

II. What Is a Maintenance Plan and Why Is it Required?

III. What Is Included in a Maintenance Plan?

A. Attainment Inventory

B. Maintenance Demonstration

C. Monitoring Network

D. Verification of Continued Attainment

E. Contingency Plan

1. Control Measures

2. Contingency Measures

IV. What Is Transportation Conformity?

V. Are these Transportation Conformity Budgets Approvable?

VI. What Is EPA's Action on New York's Part 225-3?

VII. Conclusion

VIII. Statutory and Executive Order Reviews

I. What Is the Nature of EPA's Action?

EPA is approving an updated ten-year CO maintenance plan for the Onondaga County attainment area. On September 29, 1993, the EPA approved a request from New York to redesignate Onondaga County to attainment of the CO NAAQS (58 FR 50851). In addition, the EPA also approved at that time a ten-year CO maintenance plan for Onondaga County. The Clean Air Act (the Act) requires that an area redesignated to attainment of the CO NAAQS must submit a second ten-year CO maintenance Plan to show how the area will continue to attain the CO standard for an additional ten years. On June 22, 2004, New York submitted a second ten-year CO maintenance plan for Onondaga County and requested that EPA approve the plan. The following sections describe how the EPA made its determination to approve the second ten-year maintenance plan.

II. What Is a Maintenance Plan and Why Is it Required?

A maintenance plan is a SIP revision that must demonstrate continued attainment of the applicable NAAQS in the maintenance area for at least ten years. The Act requires that a second ten-year plan be submitted in order to assure that the area will continue to stay in compliance of the relevant NAAQS.

III. What Is Included in a Maintenance Plan?

Section 175A of the Act sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The initial and subsequent ten-year plans must each demonstrate continued attainment of the applicable NAAQS for at least ten years after approval. In this notice, EPA is taking action on the second ten-year maintenance plan which covers the period from 2003 to 2013. The specific elements of a maintenance plan are:

A. Attainment Inventory

Since New York's first ten-year maintenance plan contained an attainment inventory, this second ten-year maintenance plan did not need to include another one. However, this second plan does include an update to the attainment inventory. In addition, the update contains a revised 1990 base year inventory, a 2003 inventory, and projected inventories for 2009 and 2013.

B. Maintenance Demonstration

The State projects that the future emissions of CO will not exceed the level of the 1991 attainment year inventory. This is demonstrated by the projected 2009 and 2013 CO emission levels being below the 1991 attainment year level.

C. Monitoring Network

New York continues to operate its CO monitoring network and commits to operating its highest reading CO monitor for the duration of this maintenance plan. New York will continue annual reviews of its data in order to verify continued attainment of the NAAQS. The improvement in CO air quality can be seen through an examination of the design values at their highest reading monitor. The 8-hour design values show a downward trend with values currently in the 2.0-2.5 ppm range compared to the 8-hour NAAQS for CO of 9.0 ppm. The other monitors in the network have been recording CO levels below this range.

D. Verification of Continued Attainment

New York will verify that Onondaga County continues to attain the CO NAAQS through the review of its monitoring data. In addition, the State will submit periodic inventories for the County to EPA pursuant to EPA guidance. Triannual inventory submittals will be compared to the 2003 inventory to ensure that future inventories will not exceed the 2003 inventory which in turn was below the 1991 base year inventory.

E. Contingency Plan

Section 175A(d) of the Act requires that a maintenance plan include a contingency plan which includes contingency measures, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of the area. Contingency measures do not have to be fully adopted at the time of redesignation. However, the contingency plan is considered to be an enforceable part of the SIP and should ensure that the contingency measures are adopted expeditiously once they are triggered by a specified event. In addition, the contingency plan includes a requirement that the State continue to implement all control measures used to bring the area into attainment.

1. Control Measures

The 1992 Redesignation Request and Maintenance Plan included vehicle turnover, an inspection and maintenance program, and traffic flow improvement measures as the programs that brought the area into attainment. This maintenance plan continues to include those measures as control measures. In addition, New York has adopted “the California Low Emission Vehicle II standards” as a control program in title 6 of the New York Codes, Rules and Regulations (NYCRR), Part 218, “Permits and Certificates.” This program produces a greater level of CO emission reductions than does the EPA's National Tier 2 programs.

2. Contingency Measures

The “Low Enhanced Inspection and Maintenance Program” has been adopted by New York and identified as the contingency measure for Onondaga County. New York has requested EPA's approval of substituting the Oxygenated Gasoline Program found in 6 NYCRR, Part 225-3 from the previous maintenance plan with the adopted motor vehicle low enhanced inspection and maintenance program, as found in 6 NYCRR Part 218, “Emission Standards for Motor Vehicles and Motor Vehicle Engines,” as a contingency measure for Onondaga County. EPA previously approved Part 218 on January 6, 1995 (60 FR 2025). New York has sufficiently demonstrated that the low enhanced inspection and maintenance program will achieve equivalent CO reductions as the Oxygenated Gasoline Program. This low enhanced inspection and maintenance program is required as an ozone control strategy but also results in CO reduction benefits which is being used here as a CO contingency control measure. This program includes a gas cap presence check, anti-tampering procedures and a visual check of the malfunction indicator light.

IV. What Is Transportation Conformity?

Section 176(c) of the Act defines conformity as meeting the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. The Act further defines transportation conformity to mean that no Federal transportation activity will: (1) Cause or contribute to any new violation of any standard in any area; (2) increase the frequency or severity of any existing violation of any standard in any area; or (3) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area. The Federal Transportation Conformity Rule, 40 CFR part 93 subpart A, sets forth the criteria and procedures for demonstrating and assuring conformity of transportation plans, programs and projects which are developed, funded or approved by the U.S. Department of Transportation, and by metropolitan planning organizations or other recipients of Federal funds under Title 23 U.S.C. or the Federal Transit Laws (49 U.S.C. chapter 53).

The Transportation Conformity Rule applies within all nonattainment and maintenance areas. As prescribed by the Rule, once an area has an applicable SIP with motor vehicle emissions budgets, the expected emissions from planned transportation activities must be consistent with (“conform to”) such established budgets for that area.

V. Are These Transportation Conformity Budgets Approvable?

The proposed maintenance plan establishes transportation conformity budgets for CO for the years 2003, 2009 and 2013. These new budgets are based on the control strategies, growth projections and assumptions used in the attainment demonstration and maintenance plans for the CO nonattainment area. In addition, the 2009 and 2013 conformity budgets also include an allocation of a portion of a “safety margin” established in the CO maintenance plan.

A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the air quality health standard. For example, since 2003 represents the last year of Onondaga County's first ten-year maintenance plan and its total emissions is lower than the base year, the “safety margin” is conservatively calculated using the differences between 2003 and future year total emissions.

The total emissions in 2003 from mobile, stationary and area sources equaled 654.69 tons per day of CO. New York projected the CO emissions in Onondaga County from all sources for the years 2009 and 2013 to total 455.34 tons per day and 430.06 tons per day respectively. The CO safety margin for Onondaga County in 2009 and 2013 is calculated to be the differences between the total emissions in 2003 and the total emissions for each of the projected years, 199.35 tons per day for 2009 and 224.63 tons per day for 2013. The 2009 and 2013 CO emission projections reflecting the point, area and mobile source reductions are illustrated in Table 1.

In the submittal the State requested to allocate only a portion of the safety margin to both the 2009 and 2013 motor vehicle emissions budgets. This conservative approach provides the transportation sector with an adequate budget increase for the two future scenario years, such that transportation conformity is demonstrated, and at the same time provides some assurance that potential currently unforseen regional growth in non-mobile, area and stationary source emissions will not otherwise jeopardize continued attainment. The SIP revision requests the allocation of 99 tons CO per day to be applied to the 2009 motor vehicle emissions budget and 125 tons CO per day to be applied to the 2013 motor vehicle emissions budget. The on-road mobile source CO transportation conformity budgets that include the safety margin allocation are outlined below in Table 2.

The planned allowable levels of CO emissions are projected to maintain the area's air quality consistent with the air quality health standard. The safety margin credit can be allocated to the transportation sector while maintaining air quality attainment. The total emission level, even with this allocation, will be below the attainment level, or safety level, and thus is acceptable.

On June 3, 2004, EPA sent a letter to New York stating that the 2003, 2009 and 2013 CO budgets are adequate for transportation conformity purposes. This finding was published in the Federal Register on July 12, 2004, at 69 FR 41801. These budgets are consistent with the State's emission baseline, projected inventories for highway mobile sources and use of a margin of safety. EPA is approving the 2003, 2009, and 2013 transportation conformity budgets for CO.

VI. What Is EPA's Action on New York's Part 225-3?

New York's 1992 Redesignation Request and Maintenance Plan included the Oxygenated Fuels Program (as found in 6 NYCRR, Part 225-3) as a contingency measure for Onondaga County. However, on April 19, 2000 (65 FR 20909), EPA approved New York's request to remove the Oxygenated Fuels Program from the Federally approved SIP. The reader is referred to EPA's April 19, 2000, final rulemaking for a detailed discussion of the rationale for that action. As discussed above, this action now identifies the low enhanced inspection and maintenance program as the contingency measure which replaces the Oxygenated Fuels Program. New York has since revised Part 225-3 (October 2001) to remove the Oxygenated Gasoline Program provisions from the State effective version of Part 225-3 and has requested this version be incorporated into the Federally approved SIP. New York's revision to Part 225-3 consists of renumbering the subparts to accommodate the removal of the Oxygenated Gasoline Program provisions. While EPA previously approved the removal of the Oxygenated Gasoline Program provisions from the Federally approved SIP, an updated version of the adopted State regulation was not available. The State has included this updated version of Part 225-3 as part of this SIP revision and EPA is incorporating this regulation into the SIP at this time.

EPA is also correcting two typographical errors that occurred in our approval of revisions to Parts 228 and 239 (see 69FR3237, January 23, 2004). The State effective date for these regulations should be 7/23/03 and 11/4/02, respectively.

VII. Conclusion

EPA has evaluated New York's submittals for consistency with the Act and Agency regulations and policy. EPA is approving New York's CO maintenance plan because it meets the requirements set forth in section 175A of the Act and continues to demonstrate that the NAAQS for CO will continue to be met for the next ten years. EPA is also approving the 2003, 2009, and 2013 transportation conformity budgets for CO. In addition, EPA is approving New York's revised Part 225-3.

Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Region 2 Office by one of the methods discussed in the ADDRESSES section of this action.

VIII. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a significant regulatory action and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This 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 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 approves 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 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does 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 Clean Air Act. This rule also is not subject to Executive Order 13045 Protection of Children from Environmental Health Risks and Safety Risks (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 Clean Air 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 Clean Air 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. 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
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart HH—New York

2. Section 52.1670 is amended by adding new paragraph (c)(108) to read as follows:

3. In § 52.1679, the table is amended by revising the entries under Title 6 for Part 225-3, Part 228, and Part 239 to read as follows:

4. Section 52.1682 is amended by adding paragraph (c) to read as follows: