[Federal Register Volume 75, Number 141 (Friday, July 23, 2010)]
[Rules and Regulations]
[Pages 43066-43069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18074]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2009-0462, FRL-9178-5]
Approval and Promulgation of Implementation Plans; New York
Reasonably Available Control Technology and Reasonably Available
Control Measures
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is conditionally approving the reasonably available
control technology requirement which applies to the entire State of New
York, including the New York portion of the New York-Northern New
Jersey-Long Island, NY-NJ-CT and the Poughkeepsie 8-hour ozone moderate
nonattainment areas. In addition, EPA is conditionally approving the
reasonably available control measure analysis which applies to the New
York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT
8-hour ozone moderate nonattainment area.
DATES: Effective Date: This rule is effective on August 23, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R02-OAR-2009-0462. 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 II Office, Air Programs Branch, 290 Broadway,
25th Floor, New York, New York 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 Wieber ([email protected]), Air
Programs Branch, Environmental Protection Agency, 290 Broadway, 25th
Floor, New York, New York 10007-1866, (212) 637-4249.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What comments did EPA receive in response to its proposal and
what action is EPA taking in this final rule?
II. What was included in New York's SIP submittals?
III. What is the rationale for this approval action?
IV. What are EPA's conclusions?
V. What are the consequences if a final conditional approval is
converted to a disapproval?
VI. Statutory and Executive Order Reviews
I. What comments did EPA receive in response to its proposal and what
action is EPA taking in this final rule?
On May 4, 2010 (75 FR 23640) the Environmental Protection Agency
(EPA) proposed to conditionally approve New York's reasonably available
control measure (RACM) analysis and New York's efforts to meet the
reasonably available control technology (RACT) requirement. The reader
is referred to that rulemaking action for a more detailed discussion of
New York's RACT and RACM plans. EPA received no comments in response to
the May 4, 2010 proposal. Therefore, in this action, EPA is
conditionally approving New York's RACT and RACM plans.
II. What was included in New York's SIP submittals?
On September 1, 2006, New York submitted its State-wide 8-hour
ozone RACT SIP, which included a determination that many of the RACT
rules currently contained in its SIP meet the RACT obligation for the
8-hour standard. On February 8, 2008, New York submitted two
comprehensive 8-hour ozone SIPs--one for the New York portion of the
New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area,
entitled, ``New York SIP for Ozone--Attainment Demonstration for New
York Metro Area'' and one for the Poughkeepsie nonattainment area,
entitled, ``New York SIP for Ozone--Attainment Demonstration for
Poughkeepsie, NY Area.'' The submittals included the 2002 base year
emissions inventory,
[[Page 43067]]
projection year emissions, attainment demonstrations, Reasonable
Further Progress (RFP) plans, RACT analysis, RACM analysis, contingency
measures, new source review and on-road motor vehicle emission budgets.
These proposed SIP revisions were subject to notice and comment by the
public and the State addressed the comments received on the proposed
SIP revisions before adopting the plans and submitting them for EPA
review and rulemaking action.
Included in New York's February 8, 2008 8-hour Ozone SIP submittal
was a list of additional control measures identified by the State as
RACT and RACM. The State committed to adopt additional control measures
applicable to the following source categories: Adhesives and Sealants,
Consumer Products, Portable Fuel Containers, Graphic Arts, Asphalt
Formulation, Asphalt Paving Production, Portland Cement Plants, Glass
Manufacturing, and NOx RACT.
Of the source categories identified by New York, the State adopted
rules for Portable Fuel Containers on July 15, 2009, and for Consumer
Products on September 30, 2009. New York submitted the Consumer
Products rule (on October 21, 2009) and the Portable Fuel Container
rule (on November 23, 2009) to EPA, for review and approval into the
SIP. On May 28, 2010 (75 FR 29897), EPA approved New York's Consumer
Products and Portable Fuel Container rules.
On April 15, 2010, New York submitted a letter committing to adopt
the necessary control measures that will satisfy the RACT and RACM
requirement by August 31, 2010, which is no more than one year from our
final action on the RACT and RACM SIP submittals.
III. What is the rationale for this approval action?
On August 25, 2009 (74 FR 42813), EPA proposed to disapprove New
York's RACT and RACM plans. In that proposed rulemaking action, EPA
made suggestions for how New York could correct the identified
deficiencies and strengthen the 8-hour ozone SIP (see 74 FR 42819). As
discussed in Section II, New York adopted and submitted for inclusion
in the SIP two of the control measures it had adopted. On December 23,
2009, New York proposed adoption of all but one of the remaining
additional control measures that it committed to adopt as satisfying
the RACT and RACM requirement. On April 21, 2010, New York proposed
adoption of that one remaining control measure. Based on this recent
progress and on New York's April 15, 2010 letter committing to submit
adopted RACT/RACM rules by August 31, 2010, EPA proposed a conditional
approval of the RACT and RACM SIPs for the 8-hour ozone NAAQS on May 4,
2010. EPA has determined that New York should be able to meet this
commitment because the State has already adopted rules for two of the
source categories and proposed RACT/RACM provisions for all of the
remaining source categories.
IV. What are EPA's conclusions?
EPA is conditionally approving the moderate area RACM analysis for
the New York portion of the New York-Northern New Jersey-Long Island,
NY-NJ-CT 8-hour ozone moderate nonattainment area as presented in the
February 8, 2008 ``New York SIP for Ozone--Attainment Demonstration for
New York Metro Area'' SIP submittal.
EPA is also conditionally approving the September 1, 2006 New York
RACT analysis SIP submittal, supplemented on February 8, 2008 and
September 16, 2008, which applies to the entire State and to the New
York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT
and the Poughkeepsie 8-hour ozone moderate nonattainment areas.
EPA is conditionally approving the RACT and RACM analyses for the
8-hour ozone NAAQS based on New York's letter committing to submit
adopted RACT/RACM rules for several source categories by August 31,
2010. EPA has determined that New York should be able to meet this
commitment because the State has already adopted rules for two of the
source categories and proposed RACT/RACM provisions for all of the
remaining source categories.
Under section 110(k)(4) of the Act, EPA may conditionally approve a
plan based on a commitment from the State to adopt specific enforceable
measures by a date certain, but not later than 1 year from the date of
approval. If EPA conditionally approves the commitment in a final
rulemaking action, the State must meet its commitment to adopt the
identified regulations. If the State fails to do so, this action will
become a disapproval upon the State's failure to meet its commitment.
EPA will notify the State by letter that this action has occurred. If
the conditional approval converts to a disapproval, the commitment will
no longer be a part of the approved New York SIP. Upon notification to
the State that the conditional approval has converted to a disapproval,
EPA will publish a notice in the Federal Register notifying the public
that the conditional approval automatically converted to a disapproval.
If EPA disapproves the RACT and RACM SIP submittals, such action will
start a sanctions and FIP clock (see section V). If the State meets its
commitment, within the applicable time frame, the conditionally
approved submission will remain a part of the SIP until EPA takes final
action approving or disapproving the RACT and RACM submittals. If EPA
approves the submittals, the RACT and RACM analyses will be fully
approved into the SIP in their entirety.
V. What are the consequences if a final conditional approval is
converted to a disapproval?
The Act provides for the imposition of sanctions and the
promulgation of a Federal Implementation Plan (FIP) if States fail to
correct any deficiencies identified by EPA in a final disapproval
action within certain timeframes.
A. What are the Act's provisions for sanctions?
If EPA disapproves a required SIP submittal or component of a SIP
submittal, section 179(a) provides for the imposition of sanctions
unless the deficiency is corrected within 18 months of the final
rulemaking of disapproval. The first sanction would apply 18 months
after EPA disapproves the SIP submittal if a State fails to make the
required submittal. Under EPA's sanctions regulations, 40 CFR 52.31,
the first sanction would be 2:1 offsets for sources subject to the new
source review requirements under section 173 of the Act. If the State
has still failed to submit a SIP for which EPA proposes full or
conditional approval 6 months after the first sanction is imposed, the
second sanction will apply. The second sanction is a limitation on the
receipt of Federal highway funds. EPA also has authority under section
110(m) to sanction a broader area.
B. What Federal implementation plan provisions apply if a state fails
to submit an approvable plan?
In addition to sanctions, if EPA finds that a State failed to
submit the required SIP revision or disapproves the required SIP
revision, or a portion thereof, EPA must promulgate a FIP no later than
2 years from the date of the finding if the deficiency has not been
corrected.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR
[[Page 43068]]
51735, October 4, 1993) and is therefore not subject to review under
the EO.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because this SIP conditional approval under section 110 and subchapter
I, part D of the Clean Air Act will not in-and-of itself create any new
information collection burdens but simply conditionally approves
certain State requirements for inclusion into the SIP. Burden is
defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This SIP
conditional approval under section 110 and subchapter I, part D of the
Clean Air Act will not in-and-of itself create any new requirements but
simply disapproves certain State requirements for inclusion into the
SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. The fact that
the Clean Air Act prescribes that various consequences (e.g., higher
offset requirements) may or will flow from this conditional approval
does not mean that EPA either can or must conduct a regulatory
flexibility analysis for this action. Therefore, this action will not
have a significant economic impact on a substantial number of small
entities.
We continue to be interested in the potential impacts of this final
rule on small entities and welcome comments on issues related to such
impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or Tribal governments or the private
sector. EPA has determined that the final conditional approval action
does not include a Federal mandate that may result in estimated costs
of $100 million or more to either State, local, or Tribal governments
in the aggregate, or to the private sector. This action conditionally
approves pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or Tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This action does not have federalism implications. It will 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, because it merely conditionally
approves certain State requirements for inclusion into the SIP and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, Executive
Order 13132 does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
EPA is conditionally approving would not 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. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it is not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997). This SIP conditional approval under section 110
and subchapter I, part D of the Clean Air Act will not in-and-of itself
create any new regulations but simply conditionally approves certain
State requirements for inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This final rule is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
The EPA believes this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act.
[[Page 43069]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this final action. In reviewing SIP submissions, EPA's role
is to approve or disapprove State choices, based on the criteria of the
Clean Air Act. Accordingly, this action merely conditionally approves
certain State requirements for inclusion into the SIP under section 110
and subchapter I, part D of the Clean Air Act and will not in-and-of
itself create any new requirements. Accordingly, it 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.
K. Congressional Review Act
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).
L. Petitions for Judicial Review
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 September 21, 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: July 13, 2010.
Judith A. Enck,
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 52.1683 is amended by adding new paragraph (k) to read as
follows:
52.1683 Control strategy: Ozone.
* * * * *
(k)(1) The September 1, 2006 New York reasonably available control
technology (RACT) analysis plan submittal, supplemented on February 8,
2008 and September 16, 2008, which applies to the entire State and to
the New York portion of the New York-Northern New Jersey-Long Island,
NY-NJ-CT and the Poughkeepsie 8-hour ozone moderate nonattainment areas
is conditionally approved.
(2) The moderate area reasonably available control measure (RACM)
analysis for the New York portion of the New York-Northern New Jersey-
Long Island, NY-NJ-CT 8-hour ozone moderate nonattainment area as
presented in the February 8, 2008 ``New York SIP for Ozone--Attainment
Demonstration for New York Metro Area'' submittal is conditionally
approved.
[FR Doc. 2010-18074 Filed 7-22-10; 8:45 am]
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