[Federal Register: May 28, 2010 (Volume 75, Number 103)]
[Rules and Regulations]
[Page 29897-29899]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my10-8]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2010-0131, FRL-9146-4]
Approval and Promulgation of Implementation Plans; New York State
Implementation Plan Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is approving a proposed revision to the New York State
Implementation Plan (SIP) for ozone concerning the control of volatile
organic compounds. The proposed SIP revision consists of amendments to
Title 6 of the New York Codes, Rules and Regulations Part 235,
``Consumer Products'' and Part 239, ``Portable Fuel Container Spillage
Control.'' The intended effect of this action is to approve control
strategies, required by the Clean Air Act, which will result in
emission reductions that will help achieve attainment of the national
ambient air quality standards for ozone.
DATES: Effective Date: This rule will be effective June 28, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R02-OAR-2010-0131. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., 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 through
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, NY 10007-1866. This Docket Facility is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The Docket telephone number is 212-637-4249.
FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber (wieber.kirk@epa.gov),
Air Programs Branch, Environmental Protection Agency, 290 Broadway,
25th Floor, New York, New York 10007-1866, (212) 637-3381.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What is the history and time frame for State Implementation Plan
(SIP) submissions?
II. What was included in New York's submittals?
III. What comments did EPA receive in response to its proposal?
IV. What is EPA's conclusion?
V. Statutory and Executive Order Reviews
I. What is the history and time frame for State Implementation Plan
(SIP) submissions?
EPA's Phase 1 8-hour ozone implementation rule, published on April
30, 2004 (69 FR 23951), referred to as the Phase 1 Rule, specifies that
states must submit attainment demonstrations to EPA by no later than
three years from the effective date of designation, that is, submit
them by June 15, 2007.
On November 9, 2005, EPA published Phase 2 of the 8-hour ozone
implementation rule (70 FR 71612), referred to as the Phase 2 Rule,
which addressed the control obligations that apply to areas designated
nonattainment for the 8-hour national ambient air quality standard.
Among other things, the Phase 1 and Phase 2 Rules outline the SIP
requirements and deadlines for various requirements in areas designated
as moderate nonattainment. For such areas, reasonably available control
technology (RACT) plans were due by September 2006 (40 CFR
51.912(a)(2)). The rules further require that modeling and attainment
demonstrations, reasonable further progress plans, reasonably available
control measure (RACM) analysis, projection year emission inventories,
motor vehicle emissions budgets and contingency measures were all due
by June 15, 2007 (40 CFR 51.908(a), and (c)).
II. What was included in New York's submittals?
On October 21, 2009 and November 23, 2009, the New York State
Department of Environmental Conservation (NYSDEC), submitted to EPA
proposed revisions to the SIP which included State adopted revisions to
two regulations which consist of, respectively, Title 6 of the New York
Code of Rules and Regulations (6 NYCRR) Part 235, ``Consumer Products''
with a State effective date of October 15, 2009 and 6 NYCRR Part 239,
``Portable Fuel Container Spillage Control'' with a State effective
date of July 30, 2009. These revisions will provide volatile organic
compound (VOC) emission reductions to address, in part, attainment of
the 1997 8-hour ozone standard in the New York portion of the New York-
Northern New Jersey-Long Island, NY-NJ-CT nonattainment area which is
composed of the five boroughs of New York City and the surrounding
counties of Nassau, Suffolk, Westchester and Rockland. These revisions
will also address, in part, the RACT and RACM requirements by providing
VOC emission reductions statewide.
III. What comments did EPA receive in response to its proposal?
On March 2, 2010 (75 FR 9373), EPA proposed to approve the proposed
revisions to the New York SIP for ozone concerning the amendments to 6
NYCRR Parts 235 and 239. The reader is referred to that proposal for a
more detailed discussion of this action. No comments were received in
response to that proposal.
IV. What is EPA's conclusion?
EPA has evaluated New York's submittal for consistency with the
Clean Air Act, EPA regulations, and EPA policy. EPA has determined that
the revisions made to Part 235 and Part 239 of Title 6 of the New York
Codes, Rules and Regulations, entitled, ``Consumer Products'' and
``Portable Fuel Container Spillage Control,'' respectively, meet the
[[Page 29898]]
SIP revision requirements of the Clean Air Act with the following
exceptions.
The provisions related to innovative products exemptions in subpart
239-5, variances in subpart 239-7 and alternate test methods in subpart
239-8 do not explicitly require submission of an innovative product
exemption, variance or alternative test method to EPA for approval into
the SIP. Since the rule does not explicitly state that innovative
product exemptions, variances or alternative test methods have to be
submitted to EPA for approval in the SIP, there is the possibility that
such exemptions, variances and alternatives will not be submitted for
review and approval into the SIP and therefore will not, even though
approved by the State, become federally enforceable. Failure to submit
such exemptions, variances or alternatives to EPA for review and
approval can lead to sources not understanding that the original rule
still applies and can be enforced by the United States. In order to be
federally enforceable, any exemption, variance or alternative test
method approved by NYSDEC must be approved by EPA into the SIP.
Therefore, EPA is approving the proposed revisions to Part 239,
``Portable Fuel Container Spillage Control'' with a State effective
date of July 30, 2009, as part of the New York SIP with the
understanding that the specific application of provisions associated
with innovative product exemptions, variances, and alternate test
methods, pursuant to Part 239, must be submitted to EPA as SIP
revisions. EPA is also approving the proposed revisions to Part 235,
``Consumer Products'' with a State effective date of October 15, 2009,
as part of the New York SIP.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, 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 Clean Air Act.
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 Clean Air Act; 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 located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 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 action 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.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 27, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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: April 27, 2010.
Judith A. Enck,
Regional Administrator, Region 2.
0
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
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2. Section 52.1670 is amended by adding new paragraph (c)(114) to read
as follows:
Sec. 52.1670 Identification of plans.
* * * * *
(c) * * *
(114) On October 21, 2009 and November 23, 2009, the New York State
Department of Environmental Conservation (NYSDEC), submitted to EPA
proposed revisions to the SIP concerning control strategies which will
result in volatile organic compound emission reductions that will help
achieve attainment of the national ambient air quality standards for
ozone.
(i) Incorporation by reference:
(A) Title 6 of the New York Code of Rules and Regulations, Part
235, ``Consumer Products,'' with an effective date of October 15, 2009
and Part 239, ``Portable Fuel Container Spillage Control,'' with an
effective date of July 30, 2009.
(ii) Additional information:
(A) Letters dated October 21, 2009 and November 23, 2009 from
Assistant Commissioner J. Jared Snyder, NYSDEC, to George Pavlou,
Acting Regional
[[Page 29899]]
Administrator, EPA Region 2, submitting the SIP revision for parts 235
and 239 respectively.
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3. In Sec. 52.1679, the table is amended by revising the entries for
Title 6, Part 235 and Part 239 to read as follows:
Sec. 52.1679 EPA-approved New York State regulations.
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State
New York State regulation effective Latest EPA approval Comments
date date
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........... ...................... ..........................................
Part 235, Consumer Products.... 10/15/09 5/28/10 [Insert FR ..........................................
page citation].
........... ...................... ..........................................
Part 239, Portable Fuel 7/30/09 5/28/10 [insert FR The specific application of provisions
Container Spillage Control. page citation]. associated with alternate test methods,
variances and innovative products, must
be submitted to EPA as SIP revisions.
........... ...................... ..........................................
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[FR Doc. 2010-12917 Filed 5-27-10; 8:45 am]
BILLING CODE 6560-50-P