[Federal Register: January 23, 2004 (Volume 69, Number 15)]
[Rules and Regulations]
[Page 3237-3240]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja04-5]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region 2 Docket No. NY65-270, FRL-7610-7]
Approval and Promulgation of Implementation Plans; New York State
Implementation Plan Revision; 1-Hour Ozone Control Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a
revision to the New York State Implementation Plan (SIP) for ozone
concerning the control of volatile organic compounds. The SIP revision
consists of amendments to Part 226, ``Solvent Metal Cleaning'', Part
228, ``Surface Coating Processes'', Part 235, ``Consumer Products'' and
the adoption of new rule Part 239, ``Portable Fuel Container Spillage
Control'' of Title 6 of the New York Codes, Rules and Regulations. This
SIP revision consists of control measures needed to meet the shortfall
emissions reduction identified by EPA in New York's 1-hour ozone
attainment demonstration SIP. The intended effect of this action is to
approve control strategies which will result in emission reductions
that will help achieve attainment of the national ambient air quality
standard for ozone.
EFFECTIVE DATE: This rule will be effective February 23, 2004.
ADDRESSES: A copy of the New York submittals are available at the
following addresses for inspection during normal business hours:
Environmental Protection Agency, Region 2 Office, Air
[[Page 3238]]
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.
FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-3381.
SUPPLEMENTARY INFORMATION:
I. What Is Required by the Clean Air Act and How Does It Apply to New
York?
Section 182 of the Clean Air Act (Act) specifies the required State
Implementation Plan (SIP) submissions and requirements for areas
classified as nonattainment for ozone and when these submissions and
requirements are to be submitted to EPA by the states. The specific
requirements vary depending upon the severity of the ozone problem. The
New York--Northern New Jersey--Long Island area is classified as a
severe ozone nonattainment area. Under section 182, severe ozone
nonattainment areas were required to submit demonstrations of how they
would attain the 1-hour standard. On December 16, 1999 (64 FR 70364),
EPA proposed approval of New York's 1-hour ozone attainment
demonstration SIP for the New York--Northern New Jersey--Long Island
nonattainment area. In that rulemaking, EPA identified an emission
reduction shortfall associated with New York's 1-hour ozone attainment
demonstration SIP, and required New York to address the shortfall. In a
related matter, the Ozone Transport Commission (OTC) developed control
measures into model rules for a number of source categories and
estimated emission reduction benefits from implementing these model
rules. These model rules were designed for use by states in developing
their own regulations to achieve additional emission reductions to
close emission shortfalls.
On February 4, 2002 (67 FR 5170), EPA approved New York's 1-hour
ozone attainment demonstration SIP. This approval included an
enforceable commitment submitted by New York to adopt additional
control measures to close the shortfall identified by EPA for
attainment of the 1-hour ozone standard.
II. What Was Included in New York's Submittal?
On December 30, 2002, Carl Johnson, Deputy Commissioner, New York
State Department of Environmental Conservation (NYSDEC), submitted to
EPA a revision to the SIP which included state adopted revisions to two
regulations. The two regulations consist of New York Codes, Rules and
Regulations (NYCRR), Part 235, ``Consumer Products'' and Part 239,
``Portable Fuel Container Spillage Control.'' In addition, on January
17, 2003 and April 30, 2003, Deputy Commissioner Johnson submitted to
EPA a revision to the SIP which included state proposed revisions to
NYCRR, Part 226, ``Solvent Metal Cleaning'' and Part 228, ``Surface
Coating Processes'', respectively. All of these revisions will provide
volatile organic compound (VOC) emission reductions to address, in
part, the shortfall identified by EPA. New York used the OTC model
rules as guidelines to develop its rules.
On April 10, 2003 (68 FR 17573), EPA proposed approval of parts
226, 235 and 239, and on July 16, 2003 (68 FR 41987), EPA proposed
approval of part 228. For a detailed discussion on the content and
requirements of the revisions to New York's regulations, the reader is
referred to EPA's proposed rulemaking actions.
In addition, the revisions to part 226, ``Solvent Metal Cleaning''
and part 228, ``Surface Coating Processes'' were proposed under a
procedure called parallel processing, whereby EPA proposed rulemaking
action concurrent with the State's procedures for amending its
regulations. On September 17, 2003, and supplemented on October 27,
2003, New York submitted to EPA the adopted revisions to part 226 and
part 228 for incorporation into the SIP. Because there were no
substantial changes made to the state adopted revisions to part 226, as
cited in the April 10, 2003 (68 FR 17573) proposal or part 228, as
cited in the April 10, 2003 (68 FR 17573) proposal, EPA is proceeding
with a final rulemaking which includes these revisions to part 226 and
part 228.
III. What Comments Did EPA Receive in Response to Its Proposals?
In response to EPA's April 10, 2003 and July 16, 2003 proposed
rulemaking actions, EPA received comments from one interested party. In
summary, the commentor raised a concern that EPA is imposing
unnecessary administrative impediments by requiring that alternate test
methods, variances, innovative products exemptions and alternate
compliance plans be approved by EPA on a case-by-case basis.
A. EPA's Response to Comments
While the provisions that set forth the requirements for alternate
test methods, variances, innovative products and alternate compliance
plans required pursuant to part 235, ``Consumer Products'' or part 239,
``Portable Fuel Container Spillage Control'' are acceptable, it is EPA
policy that these types of provisions (compliance alternatives that are
granted or accepted by a state) cannot be recognized, for enforcement
purposes, as meeting federal requirements until they are submitted and
approved by EPA as a SIP revision. It is not EPA's intention to
reevaluate the technical adequacy associated with these applications
granted or accepted by the State, but to ensure that the criteria in
the regulation has been met. EPA in its oversight role must know
exactly what emission limits a source must meet in order to meet EPA's
compliance assurance responsibilities. Consequently, if EPA is unaware
of an alternate compliance plan, variance or alternate test method a
source has been approved to use by the State, then EPA would be holding
the source to the existing requirement in the SIP-approved regulation
and potentially find the source out of compliance with the applicable
SIP. However, having the alternate compliance plan, variance or
alternate test method incorporated into the applicable SIP increases
the likelihood that the compliance determination for a source or
product will be performed correctly.
The commentor is concerned about timeliness in distributing an
alternate compliant product in association with EPA's review of a SIP
revision for that product. EPA will make every effort to process
individual SIP revisions as expeditiously as practicable, i.e., via
direct final rulemaking actions. Ideally, federal approval of a SIP
revision concerning alternate compliance should occur soon after state
approval. Another option that is available to the State, is to request
parallel processing of a SIP revision. If a source were to request such
processing because of time constraints, the State could request
parallel processing if it believes the alternate compliance plan,
variance or alternate test method is approvable. This substantially
reduces the time for EPA to take rulemaking action. EPA will make
efforts to expedite SIP revisions that are in accord with the
appropriate criteria for the State's review of the alternate compliance
plan, variance or alternate test method, and will apply enforcement
discretion where appropriate.
[[Page 3239]]
In addition, the purpose of this SIP revision is to establish
control measures needed to meet the shortfall emissions reduction
identified by EPA in New York's 1-hour ozone attainment demonstration
SIP. The intended effect of today's action is to approve control
strategies which will result in emission reductions that will help
achieve attainment of the national ambient air quality standard for
ozone. With the acceptance of alternate control strategies/limits, EPA
must be kept informed that the resulting emission reductions from these
alternatives will not interfere with the necessary reductions
associated with the previous identified shortfall.
IV. What Is EPA's Conclusion?
EPA has evaluated New York's submittal for consistency with the
Act, EPA regulations, and EPA policy. EPA has determined that the
revisions made to part 226, part 228, part 235 and new part 239 of
Title 6 of the New York Codes, Rules and Regulations, entitled,
``Solvent Metal Cleaning'', ``Surface Coatings Processes'', ``Consumer
Products'' and ``Portable Fuel Container Spillage Control'',
respectively, meet the SIP revision requirements of the Act with the
following exception. While the provisions related to alternate test
methods, variances, innovative products and alternate compliance plans
pursuant to part 235, ``Consumer Products'' or part 239, ``Portable
Fuel Container Spillage Control'' are acceptable, the specific
application of those provisions (those that are granted or accepted by
the State) cannot be recognized as meeting federal requirements until
they are submitted and approved by EPA as a SIP revision. Therefore,
EPA is approving the regulations as part of the New York SIP with the
exception that specific applications of provisions associated with
alternate test methods, variances, innovative products and alternate
compliance plans, allowed pursuant to parts 235 and 239, must be
submitted to EPA as SIP revisions.
V. 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). This action 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 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 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 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.).
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit 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 United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2).
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 23, 2004. 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 action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: December 29, 2003.
Jane M. Kenny,
Regional Administrator, Region 2.
0
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--New York
0
2. Section 52.1670 is amended by adding new paragraph (c)(103) to read
as follows:
Sec. 52.1670 Identification of plan.
* * * * *
(c) * * *
(103) Revisions to the State Implementation Plan submitted on
[[Page 3240]]
December 30, 2002, January 17, 2003, April 30, 2003, September 17,
2003, and October 27, 2003, by the New York State Department of
Environmental Conservation, which consists of control strategies that
will achieve volatile organic compound emission reductions that will
help achieve attainment of the national ambient air quality standard
for ozone.
(i) Incorporation by reference:
(A) Regulations Part 226, ``Solvent Metal Cleaning Processes'' of
Title 6 of the New York Code of Rules and Regulations (NYCRR), filed on
April 7, 2003, and effective on May 7, 2003, Part 228, ``Surface
Coating Processes'' of Title 6 NYCRR, filed on June 23, 2003, and
effective on July 23, 2003, Part 235, ``Consumer Products'' of Title 6
NYCRR, filed on October 10, 2002, and effective on November 9, 2002,
and Part 239, ``Portable Fuel Container Spillage Control'' of Title 6
NYCRR, filed on October 4, 2002, and effective on November 4, 2002.
0
3. In Sec. 52.1679, the table is amended by:
0
a. revising the entries under Title 6 for Parts 226 and 228, and
0
b. adding new entry under Title 6 for Parts 235 and 239, in numerical
order to read as follows:
52.1679 EPA-approved New York State regulations
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State effective Latest EPA
New York State regulation date approval date Comments
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Title 6:
* * * * * * *
Part 226, ``Solvent Metal 5/7/03 1/23/04 ...........................................
Cleaning Processes''.
* * * * * * *
Part 228, ``Surface Coating 8/23/03 1/23/04 ...........................................
Processes''.
* * * * * * *
Part 235, ``Consumer 11/9/02 1/23/04 The specific application of provisions
Products''. associated with alternate test methods,
variances, innovative products and
alternate compliance plans, must be
submitted to EPA as SIP revisions.
* * * * * * *
Part 239, ``Portable Fuel 11/4/03 1/23/04 The specific application of provisions
Container Spillage associated with alternate test methods,
Control''. variances and innovative products, must be
submitted to EPA as SIP revisions.
* * * * * * *
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[FR Doc. 04-1446 Filed 1-22-04; 8:45 am]
BILLING CODE 6560-50-P