[Federal Register Volume 65, Number 83 (Friday, April 28, 2000)]
[Rules and Regulations]
[Pages 24875-24878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10521]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY42-21-1; FRL-6583-8]


Approval and Promulgation of Implementation Plans; Reasonably 
Available Control Technology for Oxides of Nitrogen for the State of 
New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving New 
York's revisions to the State Implementation Plan (SIP) for ozone. The 
State submitted this portion of the implementation plan to satisfy 
Clean Air Act (the Act) requirements for adoption of rules for the 
application of reasonably available control technology (RACT) for 
oxides of nitrogen (NOX) in the entire State. The intended 
effect of this SIP revision is to reduce emissions of NOX 
from combustion sources in order to help attain the national ambient 
air quality standard for ozone.

EFFECTIVE DATE: This rule will be effective May 30, 2000.

ADDRESSES: Copies of the state submittal(s) are available at the 
following addresses for inspection during normal business hours:

Environmental Protection Agency, Region II 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, 50 Wolf Road, Albany, New York 12233.
Environmental Protection Agency, Air and Radiation Docket and 
Information Center, Air Docket (6102), 401 M Street, SW, Washington, DC 
20460.

FOR FURTHER INFORMATION CONTACT: Ted Gardella, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10278, (212) 637-3892.

SUPPLEMENTARY INFORMATION:

Table of Contents

What Action is EPA Approving?
Why is EPA Approving This Action?
When did EPA Propose to Approve New York's SIP Revisions?
What are the Public's Comments on EPA's Proposal?
Where is Additional Information Available on EPA's Action?
Conclusion
Administrative Requirements

What Action Is EPA Approving?

    The EPA is approving revisions to New York's ozone State 
Implementation Plan (SIP) which New York submitted to EPA on January 
20, 1994 and April 29, 1999. The January 20, 1994 submittal includes 
New York's Subpart 227-2 entitled ``Reasonably Available Control 
Technology (RACT) for Oxides of Nitrogen (NOX).'' The April 
29, 1999 submittal includes amendments to Subpart 227-2. A separate EPA 
action approved other portions (Part 200, Part 201, Subpart 227-1 and 
Subpart 227-3) of the January 1994 and April 1999 submittals in a 
Federal Register

[[Page 24876]]

document published at 65 FR 20905 on April 19, 2000.

Why Is EPA Approving This Action?

    EPA is approving this action because it determined that New York's 
SIP revisions meet all requirements of the Clean Air Act (the Act), EPA 
guidelines and EPA policy thereby allowing implementation and 
enforcement of NOX RACT requirements statewide.

When Did EPA Propose To Approve New York's SIP Revisions?

    On January 5, 2000, EPA published in the Federal Register (65 FR 
421) a Proposed Rulemaking to approve New York's regulations as a SIP 
revision and providing for a 30-day public comment period, which ended 
February 4, 2000.

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

    EPA received no public comments regarding the Proposed Rulemaking.

Where Is Additional Information Available on EPA's Action?

    A detailed discussion of this action is available in the January 5, 
2000 Proposed Rulemaking (65 FR 421). A Technical Support Document, 
prepared in support of the proposed rulemaking, contains the full 
description of New York's submittals and EPA's evaluation. A copy of 
the Technical Support Document is available upon request from the EPA 
Regional Office contact listed above in the ADDRESSES section.

Conclusion

    EPA is approving the two SIP revisions that implement New York's 
NOX RACT Program throughout the State for combustion 
sources, regardless of the nonattainment status. The first SIP 
revision, dated January 20, 1994, includes Subpart 227-2. The second 
SIP revision, dated April 29, 1999, includes amendments to Subpart 227-
2. Therefore, this rule makes final the action proposed at 65 FR 421.

Administrative Requirements

Executive Order 12866

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

[[Page 24877]]

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 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. 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 27, 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 23, 2000.
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 52.1670 is amended by adding new paragraph (c)(97) to 
read as follows:


Sec. 52.1670  Identification of plan.

* * * * *
    (c) * * *
* * * * *
    (97) Revisions to the State Implementation Plan submitted on 
January 20, 1994 and April 29, 1999 by the New York State Department of 
Environmental Conservation that establishes NOX RACT 
requirements Statewide for combustion sources.
    (i) Incorporation by reference:
    (A) Regulation Subpart 227-2 of Title 6 of the New York Code of 
Rules and Regulations, entitled ``Reasonably Available Control 
Technology (RACT) for Oxides of Nitrogen (NOX)'' adopted on 
January 19, 1994, and effective on February 18, 1994.
    (B) Amendments to Subpart 227-2 adopted on January 12, 1999 and 
effective on March 5, 1999.
    (ii) Additional information
    (A) Letters from the New York State Department of Environmental 
Department Conservation dated January 20, 1994 and April 29, 1999, 
submitting the NOX RACT Regulation and amendments as 
revisions to the New York State Implementation Plan for ozone.
    (B) Letter from the New York State Department of Environmental 
Department Conservation dated April 27, 1999 submitting an analysis of 
mass NOX emissions from generic sources throughout the State 
as well as resolution of other approvability issues.

    3. In section 52.1679, the table is amended by revising the entry 
for Subpart 227-2 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
----------------------------------------------------------------------------------------------------------------
*                  *                  *                  *                  *                  *
                                                        *
Subpart 227-2, Reasonably Available        3/5/99  [4/28/00 65 FR 24877].
 Control Technology (RACT) for
 Oxides of Nitrogen (NOX).
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 00-10521 Filed 4-27-00; 8:45 am]
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