Approval and Promulgation of Implementation Plans; New York State Implementation Plan Revision

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 13, 2005 (Volume 70, Number 9)]
[Rules and Regulations]
[Page 2358-2360]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ja05-22]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region 2 Docket No. R02-OAR-2004-NY-0001; FRL-7852-5]

Approval and Promulgation of Implementation Plans; New York State
Implementation Plan Revision

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is approving a
request from New York to revise its State Implementation Plan (SIP) for
ozone to incorporate revisions to subpart 227-2 ``Reasonably Available
Control Technology (RACT) for Oxides of Nitrogen (NO_X)'' of
Part 227 ``Stationary Combustion Installations'' of title 6 of the
Official Compilation of Codes, Rules and Regulations of the State of
New York (6NYCRR). The revision relates to the control of oxides of
nitrogen emissions from stationary industrial sources. This SIP
revision consists of a control measure needed to meet the shortfall in
emissions reduction identified by EPA in New York's one-hour ozone
attainment demonstration SIP.
The intended effect of this rule is to approve a control strategy
which will result in emission reductions that will help achieve
attainment of the national ambient air quality standard for ozone
required by the Clean Air Act.

EFFECTIVE DATE: This rule will be effective February 14, 2005.

ADDRESSES: Copies of the state submittal(s) are available at the
following addresses for inspection during normal business hours:
Environmental Protection Agency, Region 2 Office, Air 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, 2nd Floor, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella
Gardella.Anthony@epa.gov) for specific questions on New York's
NO_X RACT SIP revision or Kirk J. Wieber
Wieber.Kirk@epa.gov) for specific questions on New York's ozone
attainment demonstration; Air Programs Branch, Environmental Protection
Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212)
637-3892 or (212) 637-3381, respectively.

SUPPLEMENTARY INFORMATION:

I. What Action Is EPA Taking Today?
II. What Comments Were Received and How Has EPA Responded to Them?
III. What Role Does This Rule Play in the Ozone SIP?
IV. What Are EPA's Conclusions?
V. Administrative Correction to Section 52.1679 EPA-Approved New
York State Regulations
VI. Statutory and Executive Order Reviews

I. What Action Is EPA Taking Today?

EPA is approving a revision to New York's ground level ozone State
Implementation Plan (SIP) which New York submitted on February 18,
2004. The SIP revision includes amendments to the following two
regulations: Subpart 227-2 entitled ``Reasonably Available Control
Technology (RACT) for Oxides of Nitrogen (NO_X)'' of part 227
entitled, ``Stationary Combustion Installation;'' and subpart 201-3
entitled, ``Exemptions and Trivial Activities,'' of part 201 entitled,
``Permits and Registration,'' all of which are part of title 6 of the
New York Codes of Rules and Regulations. These amended rules were
adopted on January 9, 2004. New York submitted the regulations in order
to strengthen its one-hour ozone SIP. New York amended subpart 227-2
for the purpose of achieving additional reductions of NO_X
emissions in response to emission reduction shortfalls identified by
EPA (64 FR 70364; December 16, 1999) for attainment of New York's one-
hour ozone standard. New York amended subpart 201-3 to be consistent
with amendments to subpart 227-2. EPA has determined that New York's
submittal is fully approvable as a SIP strengthening measure for New
York's one-hour ground level ozone SIP. The reader is referred to the
proposed rulemaking (69 FR 59839; October 6, 2004) for additional details.

II. What Comments Were Received and How Has EPA Responded to Them?

The public comment period on EPA's proposed approval of New York's
February 18, 2004 SIP submittal ended on November 5, 2004. EPA received
no comments on the proposed approval action.

III. What Role Does This Rule Play in the Ozone SIP?

When EPA evaluated New York's one-hour ozone attainment
demonstrations, EPA determined that additional emission reductions were
needed for the State's severe nonattainment area in order for the State
to attain the one-hour ozone standard with sufficient surety (64 FR
70364; December 16, 1999). EPA provided that the states in the Ozone
Transport Region could achieve these emission reductions through
regional control programs. New York decided to participate with the
other states in the Northeast in an Ozone Transport Commission (OTC)
regulatory development effort which lead to six model control measures.
The New York rule, which was adopted by the State on January 9, 2004,
incorporates a portion of the OTC model rule for additional
NO_X control measures. The emission reductions from this
control measure will provide additional emission reductions towards
attaining the one-hour ozone standard and will be important in
attaining the 8-hour ozone standard.

IV. What Are EPA's Conclusions?

EPA has evaluated New York's submittal for consistency with the
Clean Air Act, EPA regulations, and EPA policy. The proposed new
control measures will strengthen the SIP by providing additional
NO_X emission reductions. Accordingly, EPA is approving the
revision to subpart 227-2, as adopted on January 9, 2004, into New
York's ozone SIP. Because of previous changes to subpart 201-3
independent of today's rulemaking, EPA will take action on the
revisions to subpart 201-3, as adopted by New York on January 9, 2004,
at a later date.
In revising subpart 227-2, New York deleted the final compliance
date applicable to sources because the date had passed, and sources are
now expected to be in compliance. EPA believes that the deletion makes
it less clear to sources obligated to comply with the May 31, 1995
compliance date in the Clean Air Act and in the previously approved SIP
that they are obliged to have complied by that date. Nevertheless,
deletion of the date does not eliminate the effective date established
by the prior SIP approved rule or the Clean Air Act and thus does not
impact on the State and EPA's authority to enforce. In the event EPA
needs to take enforcement action, it will base penalties for
noncompliance on the final compliance date in effect at the time of the
violation.

V. Administrative Correction to Section 52.1679 EPA-Approved New York
State Regulations

New York submitted part 215 ``Open Fires'' (state effective date
June 16, 1972) as part of the SIP and EPA incorporated it into the SIP
(see 40 CFR 52.1670(c)(6)). In a subsequent SIP revision dated August
10, 1979 the State submitted a request to incorporate additional
regulations and include current versions of the regulations

[[Page 2359]]

previously included in the SIP. One of these regulations was part 215.
In EPA's proposed approval of the August 10, 1979 SIP revision (46
FR 19829; April 1, 1981) EPA stated that part 215 had not been changed
from the version that was incorporated into the SIP and that no further
action was necessary. EPA finalized that rulemaking on November 12,
1981 (46 FR 55690) and created a table of approved regulations in
section 52.1679 ``EPA-approved New York State regulation.'' However,
part 215 was inadvertently not included in the section 52.1679 table.
As part of today's rulemaking, EPA is correcting this omission and
is adding part 215 to the table of approved New York regulations.

VI. 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
(59 FR 22951, 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 Clean
Air 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 Clean Air 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 Clean Air 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. 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.
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 March 14, 2005. 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

Dated: December 13, 2004.
Kathleen C. Callahan,
Acting Regional Administrator, Region 2.

? 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 et seq.

Subpart HH--New York

? 2. Section 52.1670 is amended by adding new paragraph (c)(106) to read
as follows:

Sec. 52.1670 Identification of plan.

* * * * *
(c) * * *
(106) Revisions to the State Implementation Plan submitted on
February 18, 2004, by the New York State Department of Environmental
Conservation which consists of control measures that will achieve
reductions in NO_X emissions from stationary combustion
sources that will help achieve attainment of the national ambient air
quality standard for ozone.
(i) Incorporation by reference:
(A) Regulation subpart 227-2 ``Reasonably Available Control
Technology (RACT) for Oxides of Nitrogen (NO_X)'' of part 227
``Stationary Combustion Installations'' of title 6 of the Official
Compilation of Codes, Rules and Regulations of the State of New York
(6NYCRR), filed on January 12, 2004, and effective on February 11, 2004.

? 3. Section 52.1679 is amended by adding a new entry for part 215 under
title 6 and revising the entry for part 227, subpart 227-2 under Title
6 as follows:

Sec. 52.1679 EPA-approved New York State regulations.

[[Page 2360]]

--------------------------------------------------------------------------------------------------------------------------------
State
New York State regulation effective EPA approved date Comments
date
--------------------------------------------------------------------------------------------------------------------------------
Title 6:

* * * * * * *
Part 215, Open Fires.............. 6/16/72 9/22/72, 37 FR 19814

* * * * * * *
Subpart 227-2, Reasonably 2/11/04 1/13/05 [insert publication and FR page citation of this notice]
Available Control Technology
(RACT) for Oxides of Nitrogen
(NOX).

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 05-712 Filed 1-12-05; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Approval and Promulgation of Implementation Plans; New York State Implementation Plan Revision

Local Navigation