[Federal Register Volume 63, Number 228 (Friday, November 27, 1998)]
[Rules and Regulations]
[Pages 65557-65559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31542]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY29-1-187a; FRL-6193-5]


Approval and Promulgation of Implementation Plans; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is promulgating a 
correction to the State Implementation Plan (SIP) for the State of New 
York regarding the State's general prohibition on air pollution. EPA 
has determined that this rule was erroneously incorporated into the 
SIP. EPA is removing this rule from the approved New York SIP because 
the rule does not have a reasonable connection to the national ambient 
air quality standards (NAAQS) and related air quality goals of the 
Clean Air Act. The intended effect of this correction to the SIP is to 
make the SIP consistent with the requirements of the Clean Air Act, as 
amended in 1990 (``the Act''), regarding EPA action on SIP submittals 
and SIPs for national primary and secondary ambient air quality 
standards.

EFFECTIVE DATE: This direct final rule is effective on January 26, 1999 
without further notice, unless EPA receives adverse comment by December 
28, 1998. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Ronald Borsellino, 
Chief, Air Programs Branch, Environmental Protection Agency, Region II 
Office, 290 Broadway, New York, New York 10007-1866.
    Copies of the documents relevant to this action are available for 
inspection during normal business hours at the following address:
    Environmental Protection Agency, Region II Office, Air Programs 
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.

FOR FURTHER INFORMATION CONTACT: Henry Feingersh, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th floor, New York, 
New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Correction to SIP

    EPA has determined that Part 211.2 of Title 6 of the New York Code 
of Rules and Regulations (NYCRR), which was approved in 1984 as part of 
the SIP, does not have a reasonable connection to the NAAQS and related 
air quality goals of the Clean Air Act and is not properly part of the 
SIP.
    Part 211.2 is a general prohibition against air pollution. Such a 
general provision is not designed to control NAAQS pollutants such that 
EPA could rely on it as a NAAQS attainment and maintenance strategy. 
After it came to the attention of EPA that Part 211.2 was not properly 
part of the SIP, EPA in turn brought the matter to the attention of the 
New York State Department of Environmental Conservation (NYSDEC). 
NYSDEC shared EPA's understanding that Part 211.2 was improperly 
approved into the SIP.
    EPA, pursuant to section 110(k)(6) of the Act, is correcting the 
SIP since Part 211.2 is not reasonably related to the NAAQS-related air 
quality goals of the Act. Section 110(k)(6) of the amended Act 
provides: ``Whenever the Administrator determines that the 
Administrator's action approving, disapproving, or promulgating any 
plan or plan revision (or part thereof), area designation, 
redesignation, classification or reclassification was in error, the 
Administrator may in the same manner as the approval, disapproval, or 
promulgation revise any such action as appropriate without requiring 
any further submission from the State. Such determination and the basis 
thereof shall be provided to the State and the public.'' It should be 
noted that section 110(k)(6) has also been used by EPA to delete an 
improperly approved odor provision from the Wyoming SIP. 61 FR 47058 
(1996).
    Since the State of New York's Part 211.2 has no reasonable 
connection to the NAAQS-related air quality goals of the Act, EPA has 
found that the approval of this State rule was in error. The State has 
reached the same conclusion and concurs with EPA's decision that Part 
211.2 was submitted and approved in error and should be removed from 
the approved SIP. Consequently, EPA is removing 6 NYCRR Part 211.2 from 
the approved New York SIP, pursuant to section 110(k)(6) of the Act.

II. EPA Final Rulemaking Action

    EPA is removing 6 NYCRR Part 211.2 of the New York air quality 
Administrative Rules from the approved New York SIP pursuant to section 
110(k)(6) of the Act.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective January 
26, 1999 without further notice unless the Agency receives relevant 
adverse comments by December 28, 1998.
    If EPA receives such comments, then EPA will publish a timely 
withdrawal of the final rule informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this rule. Any parties interested 
in commenting on this rule should do so at this time. If no such 
comments are received, the public is advised that this action will be 
effective on January 26, 1999 and no further action will be taken on 
the proposed rule.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.)

[[Page 65558]]

12866, entitled ``Regulatory Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If EPA complies by consulting, Executive Order 12875 
requires EPA to provide to the Office of Management and Budget a 
description of the extent of EPA's prior consultation with 
representatives of affected State, local and tribal governments, the 
nature of their concerns, copies of any written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, E.O. 12875 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. 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. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to state, local, or tribal governments in the aggregate, 
or to private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action 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.

G. Submission to Congress and the Comptroller General

    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. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

H. 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 January 26, 1999. 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

[[Page 65559]]

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, Intgovernmental 
relations, Reporting and recordkeeping.

    Dated: November 16, 1998.
William J. Muszynski,
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 52.1679 is amended by revising the entry for ``Part 211, 
General Prohibitions'' 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 date              Comments
                                              date
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*                  *                  *                  *                  *                  *
                                                        *
Part 211, General Prohibitions...........    8/11/83  November 27, 1998 [citation   Section 211.2 has been
                                                       of this document].            removed from the approved
                                                                                     plan.
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 98-31542 Filed 11-25-98; 8:45 am]
BILLING CODE 6560-50-P