[Federal Register Volume 69, Number 15 (Friday, January 23, 2004)]
[Rules and Regulations]
[Pages 3237-3240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1446]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY65-270, FRL-7610-7]


Approval and Promulgation of Implementation Plans; New York State 
Implementation Plan Revision; 1-Hour Ozone Control Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to the New York State Implementation Plan (SIP) for ozone 
concerning the control of volatile organic compounds. The SIP revision 
consists of amendments to Part 226, ``Solvent Metal Cleaning'', Part 
228, ``Surface Coating Processes'', Part 235, ``Consumer Products'' and 
the adoption of new rule Part 239, ``Portable Fuel Container Spillage 
Control'' of Title 6 of the New York Codes, Rules and Regulations. This 
SIP revision consists of control measures needed to meet the shortfall 
emissions reduction identified by EPA in New York's 1-hour ozone 
attainment demonstration SIP. The intended effect of this action is to 
approve control strategies which will result in emission reductions 
that will help achieve attainment of the national ambient air quality 
standard for ozone.

EFFECTIVE DATE: This rule will be effective February 23, 2004.

ADDRESSES: A copy of the New York submittals are available at the 
following addresses for inspection during normal business hours: 
Environmental Protection Agency, Region 2 Office, Air

[[Page 3238]]

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, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3381.

SUPPLEMENTARY INFORMATION:

I. What Is Required by the Clean Air Act and How Does It Apply to New 
York?

    Section 182 of the Clean Air Act (Act) specifies the required State 
Implementation Plan (SIP) submissions and requirements for areas 
classified as nonattainment for ozone and when these submissions and 
requirements are to be submitted to EPA by the states. The specific 
requirements vary depending upon the severity of the ozone problem. The 
New York--Northern New Jersey--Long Island area is classified as a 
severe ozone nonattainment area. Under section 182, severe ozone 
nonattainment areas were required to submit demonstrations of how they 
would attain the 1-hour standard. On December 16, 1999 (64 FR 70364), 
EPA proposed approval of New York's 1-hour ozone attainment 
demonstration SIP for the New York--Northern New Jersey--Long Island 
nonattainment area. In that rulemaking, EPA identified an emission 
reduction shortfall associated with New York's 1-hour ozone attainment 
demonstration SIP, and required New York to address the shortfall. In a 
related matter, the Ozone Transport Commission (OTC) developed control 
measures into model rules for a number of source categories and 
estimated emission reduction benefits from implementing these model 
rules. These model rules were designed for use by states in developing 
their own regulations to achieve additional emission reductions to 
close emission shortfalls.
    On February 4, 2002 (67 FR 5170), EPA approved New York's 1-hour 
ozone attainment demonstration SIP. This approval included an 
enforceable commitment submitted by New York to adopt additional 
control measures to close the shortfall identified by EPA for 
attainment of the 1-hour ozone standard.

II. What Was Included in New York's Submittal?

    On December 30, 2002, Carl Johnson, Deputy Commissioner, New York 
State Department of Environmental Conservation (NYSDEC), submitted to 
EPA a revision to the SIP which included state adopted revisions to two 
regulations. The two regulations consist of New York Codes, Rules and 
Regulations (NYCRR), Part 235, ``Consumer Products'' and Part 239, 
``Portable Fuel Container Spillage Control.'' In addition, on January 
17, 2003 and April 30, 2003, Deputy Commissioner Johnson submitted to 
EPA a revision to the SIP which included state proposed revisions to 
NYCRR, Part 226, ``Solvent Metal Cleaning'' and Part 228, ``Surface 
Coating Processes'', respectively. All of these revisions will provide 
volatile organic compound (VOC) emission reductions to address, in 
part, the shortfall identified by EPA. New York used the OTC model 
rules as guidelines to develop its rules.
    On April 10, 2003 (68 FR 17573), EPA proposed approval of parts 
226, 235 and 239, and on July 16, 2003 (68 FR 41987), EPA proposed 
approval of part 228. For a detailed discussion on the content and 
requirements of the revisions to New York's regulations, the reader is 
referred to EPA's proposed rulemaking actions.
    In addition, the revisions to part 226, ``Solvent Metal Cleaning'' 
and part 228, ``Surface Coating Processes'' were proposed under a 
procedure called parallel processing, whereby EPA proposed rulemaking 
action concurrent with the State's procedures for amending its 
regulations. On September 17, 2003, and supplemented on October 27, 
2003, New York submitted to EPA the adopted revisions to part 226 and 
part 228 for incorporation into the SIP. Because there were no 
substantial changes made to the state adopted revisions to part 226, as 
cited in the April 10, 2003 (68 FR 17573) proposal or part 228, as 
cited in the April 10, 2003 (68 FR 17573) proposal, EPA is proceeding 
with a final rulemaking which includes these revisions to part 226 and 
part 228.

III. What Comments Did EPA Receive in Response to Its Proposals?

    In response to EPA's April 10, 2003 and July 16, 2003 proposed 
rulemaking actions, EPA received comments from one interested party. In 
summary, the commentor raised a concern that EPA is imposing 
unnecessary administrative impediments by requiring that alternate test 
methods, variances, innovative products exemptions and alternate 
compliance plans be approved by EPA on a case-by-case basis.

A. EPA's Response to Comments

    While the provisions that set forth the requirements for alternate 
test methods, variances, innovative products and alternate compliance 
plans required pursuant to part 235, ``Consumer Products'' or part 239, 
``Portable Fuel Container Spillage Control'' are acceptable, it is EPA 
policy that these types of provisions (compliance alternatives that are 
granted or accepted by a state) cannot be recognized, for enforcement 
purposes, as meeting federal requirements until they are submitted and 
approved by EPA as a SIP revision. It is not EPA's intention to 
reevaluate the technical adequacy associated with these applications 
granted or accepted by the State, but to ensure that the criteria in 
the regulation has been met. EPA in its oversight role must know 
exactly what emission limits a source must meet in order to meet EPA's 
compliance assurance responsibilities. Consequently, if EPA is unaware 
of an alternate compliance plan, variance or alternate test method a 
source has been approved to use by the State, then EPA would be holding 
the source to the existing requirement in the SIP-approved regulation 
and potentially find the source out of compliance with the applicable 
SIP. However, having the alternate compliance plan, variance or 
alternate test method incorporated into the applicable SIP increases 
the likelihood that the compliance determination for a source or 
product will be performed correctly.
    The commentor is concerned about timeliness in distributing an 
alternate compliant product in association with EPA's review of a SIP 
revision for that product. EPA will make every effort to process 
individual SIP revisions as expeditiously as practicable, i.e., via 
direct final rulemaking actions. Ideally, federal approval of a SIP 
revision concerning alternate compliance should occur soon after state 
approval. Another option that is available to the State, is to request 
parallel processing of a SIP revision. If a source were to request such 
processing because of time constraints, the State could request 
parallel processing if it believes the alternate compliance plan, 
variance or alternate test method is approvable. This substantially 
reduces the time for EPA to take rulemaking action. EPA will make 
efforts to expedite SIP revisions that are in accord with the 
appropriate criteria for the State's review of the alternate compliance 
plan, variance or alternate test method, and will apply enforcement 
discretion where appropriate.

[[Page 3239]]

    In addition, the purpose of this SIP revision is to establish 
control measures needed to meet the shortfall emissions reduction 
identified by EPA in New York's 1-hour ozone attainment demonstration 
SIP. The intended effect of today's action is to approve control 
strategies which will result in emission reductions that will help 
achieve attainment of the national ambient air quality standard for 
ozone. With the acceptance of alternate control strategies/limits, EPA 
must be kept informed that the resulting emission reductions from these 
alternatives will not interfere with the necessary reductions 
associated with the previous identified shortfall.

IV. What Is EPA's Conclusion?

    EPA has evaluated New York's submittal for consistency with the 
Act, EPA regulations, and EPA policy. EPA has determined that the 
revisions made to part 226, part 228, part 235 and new part 239 of 
Title 6 of the New York Codes, Rules and Regulations, entitled, 
``Solvent Metal Cleaning'', ``Surface Coatings Processes'', ``Consumer 
Products'' and ``Portable Fuel Container Spillage Control'', 
respectively, meet the SIP revision requirements of the Act with the 
following exception. While the provisions related to alternate test 
methods, variances, innovative products and alternate compliance plans 
pursuant to part 235, ``Consumer Products'' or part 239, ``Portable 
Fuel Container Spillage Control'' are acceptable, the specific 
application of those provisions (those that are granted or accepted by 
the State) cannot be recognized as meeting federal requirements until 
they are submitted and approved by EPA as a SIP revision. Therefore, 
EPA is approving the regulations as part of the New York SIP with the 
exception that specific applications of provisions associated with 
alternate test methods, variances, innovative products and alternate 
compliance plans, allowed pursuant to parts 235 and 239, must be 
submitted to EPA as SIP revisions.

V. 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 (65 
FR 67249, 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 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 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 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. section 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. 
section 804(2).
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 23, 2004. 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, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: December 29, 2003.
Jane M. Kenny,
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 52.1670 is amended by adding new paragraph (c)(103) to read 
as follows:


Sec.  52.1670  Identification of plan.

* * * * *
    (c) * * *
    (103) Revisions to the State Implementation Plan submitted on

[[Page 3240]]

December 30, 2002, January 17, 2003, April 30, 2003, September 17, 
2003, and October 27, 2003, by the New York State Department of 
Environmental Conservation, which consists of control strategies that 
will achieve volatile organic compound emission reductions that will 
help achieve attainment of the national ambient air quality standard 
for ozone.
    (i) Incorporation by reference:
    (A) Regulations Part 226, ``Solvent Metal Cleaning Processes'' of 
Title 6 of the New York Code of Rules and Regulations (NYCRR), filed on 
April 7, 2003, and effective on May 7, 2003, Part 228, ``Surface 
Coating Processes'' of Title 6 NYCRR, filed on June 23, 2003, and 
effective on July 23, 2003, Part 235, ``Consumer Products'' of Title 6 
NYCRR, filed on October 10, 2002, and effective on November 9, 2002, 
and Part 239, ``Portable Fuel Container Spillage Control'' of Title 6 
NYCRR, filed on October 4, 2002, and effective on November 4, 2002.

0
3. In Sec.  52.1679, the table is amended by:
0
a. revising the entries under Title 6 for Parts 226 and 228, and
0
b. adding new entry under Title 6 for Parts 235 and 239, in numerical 
order to read as follows:


52.1679  EPA-approved New York State regulations

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                                  State effective     Latest EPA
   New York State regulation           date          approval date                     Comments
----------------------------------------------------------------------------------------------------------------
Title 6:
 
                                                  * * * * * * *
    Part 226, ``Solvent Metal              5/7/03           1/23/04  ...........................................
     Cleaning Processes''.
 
                                                  * * * * * * *
    Part 228, ``Surface Coating           8/23/03           1/23/04  ...........................................
     Processes''.
 
                                                  * * * * * * *
    Part 235, ``Consumer                  11/9/02           1/23/04  The specific application of provisions
     Products''.                                                      associated with alternate test methods,
                                                                      variances, innovative products and
                                                                      alternate compliance plans, must be
                                                                      submitted to EPA as SIP revisions.
 
                                                  * * * * * * *
    Part 239, ``Portable Fuel             11/4/03           1/23/04  The specific application of provisions
     Container Spillage                                               associated with alternate test methods,
     Control''.                                                       variances and innovative products, must be
                                                                      submitted to EPA as SIP revisions.
 
                                                  * * * * * * *
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[FR Doc. 04-1446 Filed 1-22-04; 8:45 am]
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