[Federal Register Volume 70, Number 9 (Thursday, January 13, 2005)]
[Rules and Regulations]
[Pages 2358-2360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-712]



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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.

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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 (NOX)'' 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 
([email protected]) for specific questions on New York's 
NOX RACT SIP revision or Kirk J. Wieber 
([email protected]) 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 (NOX)'' 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 NOX 
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 
NOX 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 
NOX 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

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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 (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 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.

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)(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 NOX 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 (NOX)'' 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.

0
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.

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                                           State
       New York State regulation         effective                                EPA approved date                                      Comments
                                            date
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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).
 
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[FR Doc. 05-712 Filed 1-12-05; 8:45 am]
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