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 PM_2.5, 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, ( printed 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 PM_2.5, 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 NO_X (ozone precursors in moderate 8-hour ozone NAA and PM_2.5 precursors in PM_2.5 NAA), 100 tons of CO (CO maintenance area), 100 tons of PM₁₀ (moderate PM₁₀ NAA), 100 tons of PM_2.5 (PM_2.5 NAA), and 100 tons of SO₂ (PM_2.5 precursor in PM_2.5 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 NO_X 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 NO_X, 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 NO_X 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 of40 CFR 93.159.
• The Selected Project was predicted to result in the emission of up to 70.5 tons and 31.2 tons of NO_X per year in 2008 and 2009, respectively.
• All construction-related NO_X 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 in40 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.

72 FR 69700