[Federal Register Volume 73, Number 16 (Thursday, January 24, 2008)]
[Rules and Regulations]
[Pages 4109-4113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-802]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

 [EPA-R02-OAR-2007-0913; FRL-8514-9]


Approval and Promulgation of Implementation Plans; New York: 
Clean Air Interstate Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the New 
York State Implementation Plan (SIP) that addresses the requirements of 
EPA's Clean Air Interstate Rule (CAIR), promulgated on May 12, 2005 and 
subsequently revised on April 28, 2006, and December 13, 2006. EPA has 
determined that the SIP revision fully implements the CAIR requirements 
for New York. As a result of this rulemaking, EPA will also withdraw, 
through a separate rulemaking, the CAIR Federal Implementation Plans 
(CAIR FIPs) concerning sulfur dioxide (SO2),

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nitrogen oxides (NOX) annual, and NOX ozone 
season emissions for New York. The CAIR FIPs for all states in the CAIR 
region were promulgated on April 28, 2006 and subsequently revised on 
December 13, 2006. In addition, EPA is determining that the New York 
SIP revision satisfies New York's obligation under section 
110(a)(2)(D)(i) of the Clean Air Act (CAA) to prohibit air emissions 
that would interfere with provisions to prevent significant 
deterioration of air quality.

DATES: This rule is effective on January 24, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2007-0913. All documents in the docket are available 
online at www.regulations.gov. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically in www.regulations.gov or in hard copy at the Air 
Programs Branch, Environmental Protection Agency, Region 2 Office, 290 
Broadway, 25th Floor, New York, New York 10007-1866.

FOR FURTHER INFORMATION CONTACT: Mr. Kenneth Fradkin, Environmental 
Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, phone number (212) 637-3702 or by e-mail at: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. EPA's Action
    A. What action is EPA approving?
    B. When did EPA propose to approve New York's SIP revision?
    C. What are the public comments on EPA's proposal?
    D. Where is additional information available on EPA's action?
II. Conclusion
III. When Is This Action Effective?
IV. Statutory and Executive Order Reviews

I. EPA's Action

A. What action is EPA approving?

    EPA is taking final action to approve a revision to New York's SIP 
which was approved for adoption by New York's State Environmental Board 
on August 28, 2007 and submitted as a SIP revision on September 17, 
2007. New York's revision addresses the Clean Air Interstate Rule 
(CAIR) and obligations under 110(a)(2)(D)(i) for the 8-hour ozone and 
fine particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS). New York's adoption was published in the New York Register on 
October 10, 2007 (Volume XXIX, Issue 41).
    EPA has determined that the SIP, as revised, will meet the 
applicable requirements of CAIR. Parts 243, 244 and 245 of title 6 of 
the New York Code of Rules and Regulations (6NYCRR) constitute New York 
State's CAIR program. Part 243 establishes the CAIR NOX 
Ozone Season Trading Program; Part 244 establishes the CAIR 
NOX Annual Trading Program; and Part 245 establishes the 
CAIR SO2 Trading Program.
    As a result of this action, the Administrator of EPA will also 
issue a final rule to withdraw the FIPs concerning SO2, 
NOX annual, and NOX ozone season emissions for 
New York. The Administrator's action will delete and reserve 40 CFR 
52.1684 and 40 CFR 52.1685, relating to the CAIR FIP obligations for 
New York. The withdrawal of the CAIR FIPs for New York is a conforming 
amendment that must be made once the SIP is approved because EPA's 
authority to issue the FIPs was premised on a deficiency in the SIP for 
New York. Once the SIP is fully approved, EPA no longer has authority 
for the FIPs. Thus, EPA will not have the option of maintaining the 
FIPs following the full SIP approval. Accordingly, EPA does not intend 
to offer an opportunity for a public hearing or an additional 
opportunity for written public comment on the withdrawal of the FIPs.
    In addition, as EPA determined in the final CAIR, EPA's conclusion 
that the revised SIP meets the applicable requirements of CAIR is also 
sufficient to demonstrate that the New York SIP satisfies the 
requirements in section 110(a)(2)(D)(i) of the Clean Air Act (CAA) with 
regard to ``significant contribution'' and ``interference with 
maintenance''. Section 110(a)(2)(D)(i) requires, among other things, 
that each state submit a SIP that prohibits any source or any other 
type of emission activity within a state from emitting pollutants in 
amounts that will: (1) contribute significantly to downwind 
nonattainment of the NAAQS and (2) interfere with maintenance of the 
NAAQS. Because EPA previously determined in the CAIR that states will 
meet these two obligations by complying with the applicable CAIR 
requirements, EPA is not taking any final action in this notice with 
regard to the ``significant contribution'' and ``interference with 
maintenance'' obligations in section 110(a)(2)(D)(i).
    Section 110(a)(2)(D)(i) also contains requirements related to 
emissions that interfere with the prevention of significant 
deterioration of air quality (PSD) and visibility protection, and CAIR 
did not address states' obligations with respect to these two 
requirements. In today's action, EPA is taking final action to 
determine that the New York SIP satisfies the CAA 110(a)(2)(D)(i) 
requirement that each state is to submit a SIP that prohibits any 
source or any other type of emission activity within a state from 
emitting pollutants in amounts that will interfere with provisions to 
prevent significant deterioration of air quality. EPA is taking no 
action to determine whether the New York SIP satisfies the visibility 
protection requirements in 110(a)(2)(D)(i) of the CAA because it is not 
possible at this time for New York to accurately determine whether 
there is interference with measures in another state's SIP to protect 
visibility. New York will need to address the visibility protection 
requirements once the regional haze SIP is completed and submitted to 
EPA.

B. When did EPA propose to approve New York's SIP revision?

    EPA proposed to approve New York's request to amend the SIP on 
October 1, 2007 (72 FR 55723). The comment period closed on October 31, 
2007. One comment was received and is addressed in Section I.C. below.

C. What are the public comments on EPA's proposal?

    The following is a summary of the comments received on the proposed 
rule published on October 1, 2007 (72 FR 55723), and EPA's response.
    Comment: On October 30, 2007, the Connecticut Department of 
Environmental Protection (CTDEP) submitted adverse comments on EPA's 
proposed rule to approve New York's CAIR SIP. CTDEP indicates that the 
State is encouraged by the efforts of New York and other states to 
adopt programs to meet the emission reduction requirements of CAIR, and 
urges EPA approval. However, it argues that before approving state 
plans with respect to CAA 110(a)(2)(D), EPA should evaluate 
individually and in the aggregate each state's clean air programs. They 
argue such evaluation is necessary to ensure that each state's 
emissions do not significantly contribute to ozone nonattainment in 
Connecticut or any other state. CTDEP expresses concern that EPA is 
determining through this and other

[[Page 4111]]

similar rulemakings that CAIR programs are sufficient to meet states' 
section 110(a)(2)(D)(i) obligations. CTDEP asserts, based on EPA and 
State modeling for CAIR, that the levels of transported pollution 
remaining after CAIR implementation are large enough that, even with 
local controls, it may be difficult for Connecticut to attain the 8-
hour ozone NAAQS by 2010. Finally, CTDEP questions EPA's determination 
that highly cost effective controls are adequate to address states' 
section 110(a)(2)(D)(i) obligations as compared to ``reasonable cost'' 
controls that could be achieved to effect more stringent NOX 
reductions.
    Response: EPA does not agree that it is appropriate or necessary 
for EPA to conduct additional analysis before approving the New York 
CAIR SIP revision. Under this SIP revision, New York has chosen to 
participate in the EPA administered cap-and-trade program for 
SO2, NOX annual, and NOX ozone season 
emissions. EPA has evaluated this SIP revision and has determined that 
it complies with the applicable requirements in 40 CFR 51.123(o) and 
(aa), with regard to NOX annual and NOX ozone 
season emissions, and 40 CFR 51.124(o), with regard to SO2 
emissions. CTDEP does not challenge this determination. Thus, CTDEP's 
comments do not specifically pertain to any aspect of EPA's proposed 
action to approve New York's CAIR SIP revision. Rather, the comments 
appear to be directed broadly at EPA's decisions with regard to states' 
section 110(a)(2)(D)(i) obligations. These decisions were made by EPA 
in the context of the CAIR rulemaking, which was promulgated on May 12, 
2005 (70 FR 25162), not in the proposed action to approve New York's 
CAIR SIP revision. Therefore, CTDEP's comments are not relevant to the 
proposed action. CTDEP had ample opportunity to submit comments both 
during the comment period for the proposed CAIR rulemaking of January 
30, 2004 (69 FR 4566) and during the comment period for the proposed 
CAIR FIP of August 24, 2005 (70 FR 49708). EPA's proposal to approve 
New York's CAIR SIP did not reopen either the CAIR or CAIR FIP 
rulemakings. Consequently, CTDEP's comments are not relevant to this 
rulemaking, or timely with respect to the CAIR and CAIR FIP 
rulemakings. Thus, EPA does not believe it is necessary to conduct 
additional analysis on whether New York or any other state satisfies 
the requirements of 110(a)(2)(D) before approving the New York CAIR SIP 
submission.

D. Where is additional information available on EPA's action?

    A detailed analysis of New York's SIP submittal pertaining to New 
York's CAIR program and the requirements of section 110(a)(2)(D)(i) of 
the CAA is available in the October 1, 2007 Proposed Rulemaking (72 FR 
55723). A copy of the rulemaking is available in the EPA docket.

II. Conclusion

    EPA is taking final action to approve New York's full CAIR SIP 
revision submitted on September 17, 2007. Under this SIP revision, New 
York is choosing to participate in the EPA administered cap-and-trade 
program for SO2, NOX annual, and NOX 
ozone season emissions. The SIP revision meets the applicable 
requirements in 40 CFR 51.123(o) and (aa), with regard to 
NOX annual and NOX ozone season emissions, and 40 
CFR 51.124(o), with regard to SO2 emissions. The revision 
includes three emission cap-and-trade rules, 6 NYCRR Parts 243, 244, 
and 245, effective on October 19, 2007, which implement the State's 
CAIR Cap-and-Trade Programs in New York. EPA has determined that the 
SIP, as revised, will meet the requirements of CAIR. The Administrator 
of EPA has also issued a direct final rule to automatically withdraw 
the CAIR FIPs concerning SO2, NOX annual, and 
NOX ozone season emissions for New York State upon the 
effective date of EPA's approval of a full state SIP revision that 
meets the requirements of CAIR. This action will delete and reserve 40 
CFR 52.1684 and 40 CFR 52.1685.
    In addition, EPA is also taking final action to determine that the 
New York SIP satisfies the requirement in section 110(a)(2)(D)(i) of 
the Clean Air Act (CAA) that requires each state to submit a SIP that 
prohibits any source or any other type of emission activity within a 
state from emitting pollutants in amounts that will interfere with 
provisions to prevent significant deterioration of air quality. EPA is 
not taking action to determine whether the New York SIP satisfies the 
110(a)(2)(D)(i) requirement regarding visibility protection. This 
requirement will be re-evaluated after regional haze SIPs are completed 
and approved by EPA.

III. When Is This Action Effective?

    EPA finds that there is good cause for this approval to become 
effective on January 24, 2008, because a delayed effective date is 
unnecessary due to the nature of the approval, which allows the State 
to implement the State's CAIR Cap-and-Trade Programs in New York. The 
expedited effective date for this action is authorized under both 5 
U.S.C. 553(d)(1), which provides that rule actions may become effective 
less than 30 days after publication if the rule ''grants or recognizes 
an exemption or relieves a restriction'' and section 5 U.S.C. 
553(d)(3), which allows an effective date less than 30 days after 
publication ``as otherwise provided by the agency for good cause found 
and published with the rule.'' CAIR SIP approvals relieve states and 
CAIR sources within states from being subject to allowance allocation 
provisions in the CAIR FIPs that otherwise would apply to them, 
allowing States to make their own allowance allocations based on their 
SIP-approved State rule. The relief from these obligations is 
sufficient reason to allow an expedited effective date of this rule 
under 5 U.S.C. 553(d)(1). In addition, New York's relief from these 
obligations provides good cause to make this rule effective on January 
24, 2008, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day 
waiting period prescribed in 5 U.S.C. 553(d) is to give affected 
parties a reasonable time to adjust their behavior and prepare before 
the final rule takes effect. Where, as here, the final rule relieves 
obligations rather than imposes obligations, affected parties, such as 
the State of New York and CAIR sources within the State, do not need 
time to adjust and prepare before the rule takes effect.

IV. 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 would 
impose no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule would 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 action approves pre-existing requirements under state law and 
would 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

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in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it would 
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 would 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 will result, as a consequence of 
that approval, in the Administrator's withdrawal of the CAIR FIP. It 
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 would approve a state rule implementing a Federal 
Standard.
    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 would 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 24, 2008. 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, Electric 
utilities, Incorporation by reference, Intergovernmental relations, 
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur dioxide.

    Dated: December 31, 2007.
Alan J. Steinberg,
Regional Administrator, Region 2.

0
40 CFR part 52 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)(113) to read 
as follows:


Sec.  52.1670  Identification of plans.

* * * * *
    (c) * * *
    (113) A revision to the State Implementation Plan that was 
submitted on September 17, 2007 by the New York State Department of 
Environmental Conservation (NYSDEC). This revision consists of 
regulations to meet the requirements of the Clean Air Interstate Rule 
(CAIR). This revision also addresses New York's 110(a)(2)(D)(i) 
obligations to submit a SIP revision that contains adequate provisions 
to prohibit air emissions from adversely affecting another state's air 
quality through interstate transport.
    (i) Incorporation by reference:
    (A) Part 243, CAIR NOX Ozone Season Trading Program, 
Part 244, CAIR NOX Annual Trading Program, and Part 245, 
CAIR SO2 Trading Program, effective on October 19, 2007, of 
Title 6 of the New York Code of Rules and Regulations (NYCRR).
    (B) Notice of Adoption, New York State Clean Air Interstate Rule, 
addition of Parts 243, 244 and 245 to Title 6 NYCRR, New York State 
Register, dated October 10, 2007, pages 16-22.
    (ii) Additional information:
    (A) Letter dated September 14, 2007 from Assistant Commissioner J. 
Jared Snyder, NYSDEC, to Alan J. Steinberg, RA, EPA Region II, 
submitting the SIP revision.

0
3. In Sec.  52.1679, the table is amended by adding under Title 6 
entries for Parts 243, 244, and 245 in numerical order to read as 
follows:


Sec.  52.1679  EPA--approved New York State regulations.

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                                   State
      State regulation        effective date          EPA approved date                     Comments
----------------------------------------------------------------------------------------------------------------
           Title 6
 
                                                  * * * * * * *
Part 243, CAIR NOX Ozone            10/19/07  1/24/08, [Insert FR page
 Season Trading Program.                       citation].
Part 244, CAIR NOX Annual           10/19/07  1/24/08, [insert FR page
 Trading Program.                              citation].
Part 245, CAIR SO2 Trading          10/19/07  1/24/08, [insert FR page
 Program.                                      citation].
 
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 [FR Doc. E8-802 Filed 1-23-08; 8:45 am]
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