[Federal Register Volume 61, Number 191 (Tuesday, October 1, 1996)]
[Rules and Regulations]
[Pages 51214-51217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24534]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region II, Docket No. 152, NY21-1-6732a; FRL-5555-2]
Approval and Promulgation of Implementation Plans; Transportation
Control Measures, State of New York
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a
request submitted on November 15, 1992 by the State of New York to
revise its ozone state implementation plan (SIP) which addresses the
need for transportation control measures (TCMs) to offset growth in
emissions from growth in vehicle miles travelled (VMT) as required by
the Clean Air Act (Act). New York has indicated that VMT growth will
not result in increased emissions and, therefore, TCMs are not needed
for this purpose.
DATES: This action is effective on December 2, 1996 unless adverse or
critical comments are received by October 31, 1996. If adverse comments
are received, this notice will be withdrawn in the Federal Register
prior to the effective date of this rule.
ADDRESSES: All comments should be addressed to: William S. Baker,
Chief, Air Programs Branch, Air and Waste Management Division,
Environmental Protection Agency, Region II Office, 290 Broadway, 20th
Floor, New York, New York 10007-1866
Copies of New York's submittals are available at the following
addresses for inspection during normal business hours:
Environmental Protection Agency, Region II Office, Air Programs Branch,
[[Page 51215]]
290 Broadway, 20th Floor, New York, New York 10007-1866.
New York Department of Environmental Conservation, 50 Wolf Road,
Albany, New York 12233-1010
Environmental Protection Agency, Air and Radiation Docket and
Information Center (MC 6102), 401 M Street, S.W., Washington, D.C.
20460
FOR FURTHER INFORMATION CONTACT: Linda Kareff, Environmental Protection
Specialist, Technical Evaluation Section, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 20th Floor, New York,
New York 10007-1866, (212) 637-4249
SUPPLEMENTARY INFORMATION:
Background
Section 182(d)(1)(A) of the Clean Air Act Amendments of 1990
requires states containing ozone nonattainment areas classified as
``severe'' pursuant to section 181(a) of the Act to adopt
transportation control measures (TCMs) and transportation strategies to
offset growth in emissions from growth in vehicle miles travelled (VMT)
or number of vehicle trips, and to attain reductions in motor vehicle
emissions (in combination with other emission requirements) as
necessary to comply with the Act's Reasonable Further Progress (RFP)
milestone and attainment requirements. The requirements for
establishing a VMT offset program are discussed in the April 16, 1992
General Preamble to Title I of the Act (57 FR 13498), in addition to
section 182(d)(1)(A) of the Act.
The VMT offset provision requires that states submit by November
15, 1992 specific enforceable TCMs and strategies to offset any growth
in emissions from growth in VMT or number of vehicle trips sufficient
to allow total area emissions to comply with the RFP and attainment
requirements of the Act.
EPA has observed that these three elements (i.e., offsetting growth
in mobile source emissions, attainment of the RFP reduction, and
attainment of ozone national ambient air quality standards (NAAQS))
create a timing problem of which Congress was perhaps not fully aware.
As discussed in EPA's April 16, 1992 General Preamble to Title I, ozone
nonattainment areas affected by this provision were not otherwise
required to submit SIPs that show attainment of the 1996 15% RFP
milestone until November 15, 1993, and likewise are not required to
demonstrate post-1996 RFP and attainment of the NAAQS until November
15, 1994. The SIP demonstrations due on November 15, 1993, and on
November 15, 1994 are broader in scope than growth in VMT or trips in
that they necessarily address emission trends and control measures for
non-motor vehicle emission sources and, in the case of attainment
demonstrations, complex photochemical modeling studies.
EPA does not believe that Congress intended the VMT offset
provision to advance dates for these broader submissions. Further, EPA
believes that the November 15, 1992 date would not allow sufficient
time for states to have fully developed specific sets of measures that
would comply with all of the elements of the VMT offset requirements of
section 182(d)(1)(A) over the long term. Consequently, EPA believes it
would be appropriate to interpret the Act to provide the following
alternative set of staged deadlines for submittal of elements of the
VMT offset SIP. Under this interpretation, the three required elements
of section 182(d)(1)(A) are separable, and can be divided into three
separate submissions on different dates. Section 179(a) of the Act, in
establishing how EPA would be required to apply mandatory sanctions if
a state fails to submit a full SIP also provides that the sanctions
clock starts if a state fails to submit one or more SIP elements, as
determined by the Administrator. EPA believes that this language
provides EPA the authority to determine that the different elements of
a SIP submission are separable. Moreover, given the continued timing
problems addressed above, EPA believes it is appropriate to allow
states to separate the VMT offset SIP into three elements, each to be
submitted at different times: (1) The initial requirement to submit
TCMs that offset growth in emissions; (2) the requirement to comply
with the 15% Rate of Progress requirement of the Act; and (3) the
requirement to comply with the post-1996 periodic reduction and
attainment of the ozone NAAQS.
Under this approach, the first element, the emissions offset
element was due on November 15, 1992. EPA believes this element is not
necessarily dependent on the development of the other elements. A state
could submit the emissions growth offset element independent of an
analysis of that element's consistency with the periodic reduction and
attainment requirements of the Act. Emissions trends from other sources
need not be considered to show compliance with the offset requirement.
As submitting this element in isolation does not implicate the timing
problems of advancing deadlines for RFP and attainment demonstrations,
EPA does not believe it is necessary to extend the statutory deadline
for submittal of the emissions growth offset element.
The second element, which requires the VMT offset SIP to comply
with the 15% RFP requirement of the Act was due on November 15, 1993
which is the same date on which the 15% RFP SIP itself was due under
section 182(b)(1) of the Act. EPA believes it is reasonable to extend
the deadline for this VMT offset element from November 15, 1992 to the
date on which the entire 15% SIP was due, as this allows states to
develop the comprehensive strategy to address the 15% requirement and
assure that the TCM elements required under section 182(d)(1)(A) are
consistent with the remainder of the 15% demonstration. Indeed, EPA
believes that only upon submittal of the broader 15% plan can a state
have had the necessary opportunity to coordinate its VMT strategy with
its 15% plan.
The third element, which requires the VMT offset SIP to comply with
the post-1996 RFP and attainment requirements of the Act was due on
November 15, 1994, the statutory deadline for those broader
submissions. EPA believes it is reasonable to similarly extend the
deadline for this VMT element to the date on which the post-1996 RFP
and attainment SIPs are due for the same reason it is reasonable to
extend the deadline for the second element. First, it is arguably
impossible for a state to make the showing required by section
182(d)(1)(A) for the third element until the broader demonstrations
have been developed by the State. Moreover, allowing states to develop
the comprehensive strategy to address post-1996 RFP and attainment by
providing a fuller opportunity to assure that the TCM elements comply
with the broader RFP and attainment demonstrations, will result in a
better program for reducing emissions in the long term.
State Submittal
On November 15, 1992, the State of New York submitted its ozone SIP
revision dealing with, in part, whether TCMs are needed to offset
growth in emissions. The submittal was found to be incomplete and was
resubmitted with additional information on September 9, 1993. The EPA
found the SIP complete with the supplemental information on November 5,
1993. In this submittal, the State has indicated that it does not need
to submit a revision adopting specific TCMs under the first element of
the VMT offset requirement because it has determined that it will not
need to offset growth in emissions from growth in VMT into the next
century. EPA's independent analysis (included in the technical support
document) supports this finding and demonstrates that New York will
[[Page 51216]]
not need to offset growth in emissions until at least the year 2007,
the year New York is required to demonstrate attainment. The second and
third TCM elements will be addressed in future rulemaking when EPA
evaluates New York's 15% Rate of Progress requirement to be resubmitted
by New York and the post-1996 attainment SIP submittals.
Conclusion
Section 182(d)(1)(A) of the Act requires the State to offset any
growth in emissions from growth in VMT. As discussed in the General
Preamble, the purpose is to prevent a growth in motor vehicle emissions
from canceling out the emission reduction benefits of the federally
mandated programs in the Act. EPA interprets this provision to require
that sufficient measures must be adopted so that projected motor
vehicle volatile organic compound (VOC) emissions will never be higher
during the ozone season in one year than during the ozone season in the
year before. When growth in VMT and vehicle trips would otherwise cause
a vehicle upturn in emissions from motor vehicles, this upturn must be
prevented. The emissions level at the point of upturn becomes a ceiling
on motor vehicle emissions. This requirement applies to projected
emissions in the years between the submission of the SIP revision and
the attainment demonstrations. The ceiling level is defined, therefore,
up to the point of upturn, as motor vehicle emissions that would occur
in the ozone season of that year, with VMT growth, if all measures for
that area in that year were implemented by the Act. When this curve
begins to turn up due to growth in VMT or vehicle trips, the ceiling
becomes a fixed value. The ceiling line would include the effects of
federal measures such as new motor vehicle standards, phase II Reid
vapor pressure (RVP) controls, and reformulated gasoline, as well as
the Act-mandated SIP requirements.
The State of New York has indicated in its submittal on November
15, 1992 that the predicted growth in VMT is not expected to result in
an increase in motor vehicle emissions that will negate the effects of
the reductions mandated by the Act. Because the current modelling does
not indicate a need for TCMs to offset growth in emissions before 2007,
the year New York State is to demonstrate attainment, we are approving
the part of the ozone state implementation plan that determines that
New York is not required to adopt specific, enforceable TCMs to meet
the first element of the offset requirement. EPA is therefore approving
the New York State SIP revision submittals as satisfying the first of
the three VMT offset plan requirements. With respect to the second
element, EPA will address this element when New York's 15% Rate of
Progress plan is resubmitted to EPA. With respect to the third element,
New York will periodically be updating its emissions projections as a
part of its post-1996 RFP and attainment SIPs. Upon review of the
updated projections, EPA will determine if revised emissions estimates
have changed creating a necessity for TCMs.
Nothing in this rule should be construed as permitting or allowing
or establishing a precedent for any future request for revision to any
SIP. Each request for revision to any SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
EPA is publishing this rule without prior proposal because EPA
views this as a noncontroversial amendment and anticipates no adverse
comments. However, in a separate document in this Federal Register
publication, the EPA is proposing to approve the SIP revision should
adverse or critical comments be filed. Thus, this direct final action
will be effective December 2, 1996, unless, by October 31, 1996,
adverse or critical comments are received.
If the EPA receives such comments, this rule will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting on this rule should do so
at this time. If no adverse comments are received, the public is
advised that this rule will be effective December 2, 1996. (See 47 FR
27073 and 59 FR 24059).
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and Subchapter I, Part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
federal SIP approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the federal-state relationship
under the Clean Air Act, preparation of a regulatory flexibility
analysis would constitute federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. US
EPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a federal mandate that may result in
estimated annual costs of $100 million or more to the private sector,
or to state, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the state and any affected local or tribal governments have
elected to adopt the program provided for under section 182(d)(1)(A) of
the Clean Air Act. These rules may bind state, local and tribal
governments to perform certain actions and also require the private
sector to perform certain duties. To the extent that the rules being
approved by this action would impose any mandate upon the state, local
or tribal governments either as the owner or operator of a source or as
a regulator, or would impose any mandate upon the private sector, EPA's
action will impose no new requirements; such sources are already
subject to these regulations under state law. Accordingly, no
additional costs to state, local, or tribal governments, or to the
private sector, result from this action. EPA has also determined that
this direct final action does not include a mandate that may result in
estimated annual costs of $100 million or more to state, local, or
tribal governments in the aggregate or to the private sector.
The Office of Management and Budget has exempted this action from
review under Executive Order 12866.
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is
[[Page 51217]]
not a ``major rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this rule must be filed in the United States Court
of Appeals for the appropriate circuit within 60 days from date of
publication. Filing a petition for reconsideration by the Administrator
of this final rule does not affect the finality of this rule for the
purposes of judicial review nor does it extend the time within which a
petition for judicial review may be filed and shall not postpone the
effectiveness of such rule or action. This rule may not be challenged
later in proceedings to enforce its requirements. (See 307(b)(2)).
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: July 29, 1996.
William Muszynski,
Acting Regional Administrator.
Part 52, 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. 7401-7671q.
Subpart HH--New York
2. Section 52.1683 is amended by adding new paragraph (c) to read
as follows:
Sec. 52.1683 Control Strategy; Ozone
* * * * *
(c) EPA approves on December 2, 1996, a request submitted by the
State of New York to revise its ozone state implementation plan (SIP)
which addresses the need for transportation control measures (TCMs) to
offset growth in emissions from growth in vehicle miles travelled (VMT)
as required by the Clean Air Act (Act). New York has indicated that VMT
growth will not result in increased emissions and, therefore, TCMs are
not needed for this purpose.
[FR Doc. 96-24534 Filed 9-30-96; 8:45 am]
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