[Federal Register Volume 65, Number 76 (Wednesday, April 19, 2000)]
[Rules and Regulations]
[Pages 20905-20909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9544]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY40-2-209, FRL-6573-1]


Approval and Promulgation of Implementation Plans; New York; 
Nitrogen Oxides Budget and Allowance Trading Program

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing 
approval of New York's State Implementation Plan (SIP) revision for 
ozone. This SIP revision relates to New York's portion of the Ozone 
Transport Commission's September 27, 1994 Memorandum of Understanding, 
which includes a regional nitrogen oxides budget and allowance 
(NOX Budget) trading program that will significantly reduce 
NOX emissions generated within the Ozone Transport Region, 
which includes New York State. EPA is approving New York's regulations, 
which implement Phase II of the NOX Budget Trading Program, 
since they reduce NOX emissions and help achieve the 
national ambient air quality standard for ozone.

DATES: This rule is effective on May 19, 2000.

ADDRESSES: Copies of the State submittal and supporting documents are 
available for inspection during normal business hours, at the following 
addresses:

Environmental Protection Agency, Region II Office, Air Programs Branch,

[[Page 20906]]

290 Broadway, 25th Floor, New York, New York 10007-1866.
New York State Department of Environmental Conservation, Division of 
Air Resources, 50 Wolf Road, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Richard Ruvo, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4014.

SUPPLEMENTARY INFORMATION:  

Overview

    The EPA is approving the New York State Department of Environmental 
Conservation's (New York's) Nitrogen Oxides Budget and Allowance 
(NOX Budget) Trading Program for 1999, 2000, 2001 and 2002.
    The following table of contents describes the format for this 
SUPPLEMENTARY INFORMATION section:

Overview

EPA's Action
    What Action is EPA Approving?
    Why is EPA Approving this Action?
    When Did EPA Propose to Approve New York's Program?
    What are the Public's Comments on EPA's Proposal?
    What is the Ozone Transport Commission's Memorandum of 
Understanding?
    Where is Additional Information Available on EPA's Action?
Conclusion
Administrative Requirements

EPA's Action

What Action Is EPA Approving?

    The EPA is approving a revision to New York's Ozone State 
Implementation Plan (SIP) which New York submitted on April 29, 1999. 
This SIP revision relates to New York's NOX Budget Trading 
Program, also referred to as Phase II. New York's regulations which 
implement the NOX Budget Trading Program are:
     New Subpart 227-3, ``Pre-2003 Nitrogen Oxides Emissions 
Budget and Allowance Program''
     Guidance for Implementation of Emissions Monitoring 
Requirements for the NOX Budget Program, January 28, 1997
     NOX Budget Program Monitoring Certification and 
Reporting Requirements, July 3, 1997
     Electronic Data Reporting, Acid Rain Program/
NOX Budget Program, July 3, 1997
     Amended Part 200, ``General Provisions''
     Amended Subpart 227-1, ``Stationary Combustion 
Installations'' and
     Amended Subpart 227-2, ``Reasonably Available Control 
Technology (RACT) for Oxides of Nitrogen (NOX).''
    Part 200 contains general provisions applicable to New York's Title 
6 regulations. Part 200 includes definitions and references to other 
applicable documents, guidelines and methodologies that a source should 
consult when meeting requirements of specific New York regulations. New 
York originally incorporated these documents when New York proposed and 
adopted the regulations themselves. Part 200 lists these documents for 
reference along with where anyone can obtain them.
    EPA is approving those provisions of part 200 needed for the 
purposes of enforcing the SIP, as well as for enforcing New York's 
NOX Budget Trading Program. Specifically, EPA is approving 
sections 200.1 ``Definitions,'' section 200.6 ``Acceptable ambient air 
quality,'' section 200.7 ``Maintenance of equipment,'' and most of 
section 200.9 ``Referenced material.''
    EPA has previously discussed its approval of the state definitions 
in section 200.1 in prior actions which approved specific New York 
regulations that relied on the definitions, such as parts 218 and 227-
3. Section 200.1 contains a definition of ``federally enforceable'' 
which EPA accepts with the following understanding: (1) the definition 
applies to provisions of a Title V permit that are correctly identified 
as federally enforceable, and (2) a source accepts operating limits and 
conditions to lower its potential to emit to become a minor source, not 
to ``avoid'' any applicable requirement. New York should clarify this 
definition in the future.
    EPA is not incorporating sections 200.2 ``Safeguarding 
information,'' 200.3 ``False statement,'' 200.4 ``Severability,'' 200.5 
``Sealing,'' and 200.8 ``Conflict of interest'' because EPA can take 
enforcement actions related to one of these sections under its own 
corresponding federal regulations.
    EPA is approving and including section 200.9 in the table in 40 CFR 
52.1679 of EPA approved regulations for the benefit of the regulated 
community. Section 200.9 incorporates by reference specific federal and 
state laws and regulations including the three emissions monitoring 
guidance documents referenced above. Most of these were previously 
approved in past rulemakings. EPA is not approving the federal laws and 
regulations incorporated by reference in section 200.9 because they are 
already federally enforceable.
    Section 200.10 lists regulations promulgated by the EPA. Since 
these regulations are already federally enforceable EPA is not 
incorporating them into the SIP. EPA is not including section 200.10 in 
the table in 40 CFR 52.1679.

Why Is EPA Approving This Action?

    EPA is approving this action to:
     Fulfill New York's and EPA's requirements under the Clean 
Air Act (the Act)
     Make New York's NOX Budget Trading Program 
federally-enforceable, and
     Make the significant NOX emission reductions 
available for credit toward the attainment SIP.

When Did EPA Propose To Approve New York's Program?

    On October 14, 1999, EPA published in the Federal Register (64 FR 
55667) a Proposed Rulemaking to approve New York's regulations as a SIP 
revision and providing for a 30-day public comment period, which ended 
on November 15, 1999.

What Are the Public's Comments on EPA's Proposal?

    EPA received no public comments regarding the Proposed Rulemaking.

What Is the Ozone Transport Commission's Memorandum of Understanding?

    The Ozone Transport Commission (OTC) adopted a Memorandum of 
Understanding (MOU) on September 27, 1994, which committed the 
signatory states to the development and proposal of a region-wide 
reduction in NOX emissions, with one phase of reductions by 
1999 and another phase of reductions by 2003. The Act required RACT to 
reduce NOX emissions by May of 1995. The OTC MOU obligated 
further reductions in NOX emissions by 1999 (known as Phase 
II) and by 2003 (known as Phase III).

Where Is Additional Information Available on EPA's Action?

    A detailed discussion of this program is available in the October 
14, 1999 Proposed Rulemaking (64 FR 55667). A Technical Support 
Document, prepared in support of the proposed rulemaking, contains the 
full description of New York's submittal and EPA's evaluation. A copy 
of the Technical Support Document is available upon request from the 
EPA Regional Office listed in the ADDRESSES section.

Conclusion

    EPA is approving New York's program which implements the Ozone

[[Page 20907]]

Transport Commission's September 27, 1994 Memorandum of Understanding 
(Phase II). The EPA is approving, as part of the SIP, the new 
regulation, Subpart 227-3, and amendments to the sections as discussed 
of the regulations part 200, subpart 227-1 and subpart 227-2, which 
implement Phase II of the NOX Budget Trading Program. EPA is 
approving these regulations, submitted by New York on April 29, 1999, 
as part of the SIP.

Administrative Requirements

Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation. This final rule 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 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.
    Thus, the requirements of section 6 of the Executive Order do not 
apply to this rule.

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 
Executive Order 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 Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects 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. If the mandate is 
unfunded, EPA must 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 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. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

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).

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

[[Page 20908]]

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.

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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

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 June 19, 2000. 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: March 28, 2000.
William J. Muszynksi,
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)(95) to 
read as follows:


Sec. 52.1670  Identification of plan.

* * * * *
    (c) * * *
* * * * *
    (95) A revision to the State Implementation Plan submitted on April 
29, 1999 by the New York State Department of Environmental Conservation 
that establishes the NOX Budget Trading Program.
    (i) Incorporation by reference:
    (A) Regulation Subpart 227-3 of Title 6 of the New York Code of 
Rules and Regulations, entitled ``Pre-2003 Nitrogen Oxides Emissions 
Budget and Allowance Program'' adopted on January 12, 1999, and 
effective on March 5, 1999.
    (B) Amendments to Title 6 of the New York Code of Rules and 
Regulations, Part 200, ``General Provisions,'' Subpart 227-1, 
``Stationary Combustion Installations,'' and Subpart 227-2, 
``Reasonably Available Control Technology (RACT) for Oxides of Nitrogen 
(NOX)'' adopted on January 12, 1999, and effective on March 
5, 1999.
    (ii) Additional information:
    (A) Letter from the New York Department of Environmental 
Conservation dated April 29, 1999, submitting the NOX Budget 
Trading Program as a revision to the New York State Implementation Plan 
for ozone.
    (B) Guidance for Implementation of Emissions Monitoring 
Requirements for the NOX Budget Program, dated January 28, 
1997.
    (C) NOX Budget Program Monitoring Certification and 
Reporting Requirements, dated July 3, 1997.
    (D) Electronic Data Reporting, Acid Rain/NOX Budget 
Program, dated July 3, 1997.

    3. In Sec. 52.1679, the table is amended as follows:
    A. By revising the entry for Part 200;
    B. By removing the entry for ``Part 227, Stationary Combustion 
Installations (except as noted)'';
    C. By removing the entry for ``Part 227, Stationary Combustion 
Installations/section 27.2(b)(1)''; and
    D. By adding a new entry for ``Part 227, Stationary Combustion 
Installations'';
    E. By adding a new entries for subparts 227-1, 227-2, and 227-3 to 
read as follows:
    The revised and added entries read as follows:


Sec. 52.1679  EPA--approved New York regulations.

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                                         State
      New York State regulation        effective      Latest EPA  approval date               Comments
                                          date
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Part 200, General Provisions sections     3/5/99  [4/19/00 and FR page citation]..  Redesignation of non-
 200.1, 200.6, 200.7 and 200.9.                                                      attainment areas to
                                                                                     attainment areas
                                                                                     (200.1(av)) does not
                                                                                     relieve a source from
                                                                                     compliance with previously
                                                                                     applicable requirements as
                                                                                     per letter of Nov. 13, 1981
                                                                                     from H. Hovey, NYSDEC.
                                                                                    Changes in definitions are
                                                                                     acceptable to EPA unless a
                                                                                     previously approved
                                                                                     definition is necessary for
                                                                                     implementation of an
                                                                                     existing SIP regulation.

[[Page 20909]]

 
                                                                                    EPA is including the
                                                                                     definition of ``federally
                                                                                     enforceable'' with the
                                                                                     understanding that (1) the
                                                                                     definition applies to
                                                                                     provisions of a Title V
                                                                                     permit that are correctly
                                                                                     identified as federally
                                                                                     enforceable, and (2) a
                                                                                     source accepts operating
                                                                                     limits and conditions to
                                                                                     lower its potential to emit
                                                                                     to become a minor source,
                                                                                     not to ``avoid'' applicable
                                                                                     requirements.
                                                                                    EPA is approving
                                                                                     incorporation by reference
                                                                                     of those documents that are
                                                                                     not already federally
                                                                                     enforceable.
*                  *                  *                  *                  *                  *
                                                        *
Part 227, Stationary Combustion           5/1/72  9/22/72.........................  ............................
 Installations [1972 version]/section             37 FR 19814.....................
 227.2(b)(1).
Part 227, Stationary Combustion        .........  ................................  Existing Part 227 is
 Installations.                                                                      renumbered Subpart 227-1.
Subpart 227-1, Stationary Combustion      3/5/99  [4/19/00 and FR page citation]..  Renumbered sections 227-
 Installations.                                                                      1.2(a)(2), 227-1.4(a), and
                                                                                     227-1.4(d) continue to be
                                                                                     disapproved according to 40
                                                                                     CFR 52.1678(d) and
                                                                                     52.1680(a). (New York
                                                                                     repealed existing Part
                                                                                     227.5.)
Subpart 227-2, Reasonably Available       3/5/99  [4/19/00 and FR page citation]..  EPA is including sections
 Control Technology (RACT) for Oxides                                                227-2.3(h), 227-2.5(b), 227-
 of Nitrogen (NOX)/sections 227-                                                     2.5(e), and 227-2.6 as part
 2.3(h), 227-2.5(b), 227-2.5(e), and                                                 of the SIP for purposes of
 227-2.6.                                                                            the NOX Budget Trading
                                                                                     Program. EPA will act on
                                                                                     the remaining sections of
                                                                                     227-2 in a future
                                                                                     rulemaking.
Subpart 227-3, Pre-2003 Nitrogen          3/5/99  [4/19/00 and FR page citation]..  Approval of NOX Budget
 Oxides Emissions Budget and                                                         Trading Program for 1999,
 Allowance Program.                                                                  2000, 2001 and 2002. To
                                                                                     meet its attainment
                                                                                     demonstration commitments
                                                                                     and the interstate MOU, New
                                                                                     York will need to amend
                                                                                     their regulations to
                                                                                     establish the NOX caps in
                                                                                     the State during 2003 and
                                                                                     beyond.
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 00-9544 Filed 4- 18-00; 8:45 am]
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