[Federal Register Volume 73, Number 78 (Tuesday, April 22, 2008)]
[Rules and Regulations]
[Pages 21546-21549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8657]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Docket No. EPA-R02-OAR-2008-0011, FRL-8554-8]


Approval and Promulgation of Implementation Plans; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; technical amendment.

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SUMMARY: The Environmental Protection Agency (EPA) is promulgating an 
amendment to its rulemaking action taken on November 27, 1998, which 
removed Part 211.2 of Title 6 of the New York Code of Rules and 
Regulations (NYCRR) from the State Implementation Plan (SIP) for the 
State of New York. Part 211.2 is a general prohibition against air 
pollution. As stated in the November 27, 1998 notice, EPA intended to 
remove all such general duty provisions from the New York SIP, which do 
not reasonably relate to the attainment and maintenance of the National 
Ambient Air Quality Standards (NAAQS), and other air quality goals of 
the Clean Air Act. General duty provisions in Title 6 of the NYCRR 
include those pertaining to nuisance odors. In this action, EPA is 
amending its previous rulemaking to include a mistakenly omitted 
citation to Part 200.1(d) of Title 6 of the NYCRR. Part 200.1(d) 
provides the definition of ``air contaminant or air pollutant,'' which 
includes the word ``odor.'' It has recently been brought to EPA's 
attention that the word ``odor'' in the definition of ``air contaminant 
or air pollutant'' was erroneously retained in the SIP. By amending the 
previous rulemaking, EPA is removing the word ``odor'' from the 
federally-approved definition of ``air contaminant or air pollutant,'' 
because the definition as currently written, in part, does not have a 
reasonable connection to the NAAQS and related air quality goals of the 
Clean Air Act. The intended effect of this amendment is to make the 
previous rulemaking on New York SIP submittals for national primary and 
secondary ambient air quality standards consistent with the 
requirements of the Clean Air Act.

DATES: This correction is effective on April 22, 2008.

FOR FURTHER INFORMATION CONTACT: Steven Riva, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4074.

SUPPLEMENTARY INFORMATION:

I. Amendment to SIP Correction Action

    On November 27, 1998 (63 FR 65557), EPA published notice of a 
direct final rulemaking action under section 110(k)(6) of the Clean Air 
Act, as amended, 42 U.S.C. 7401 et seq. (the Act), to correct the 
federally-approved New York State Implementation Plan (SIP). This 
notice took effect on January 26, 1999, after a 60 day public comment 
period in which EPA received no

[[Page 21547]]

comments on the rule. The intended effect of that rulemaking was to 
remove all general duty provisions from the SIP, which EPA determined 
were erroneously approved because those provisions do not have a 
reasonable connection to the national ambient air quality standards 
(NAAQS) such that EPA could rely on them as NAAQS attainment and 
maintenance strategies. Accordingly, the November 27, 1998 rulemaking 
removed Part 211.2 of Title 6 of the New York Code of Rules and 
Regulations (NYCRR) from the SIP. Part 211.2 is a general prohibition 
against air pollution. General duty provisions in Title 6 of the NYCRR 
include those pertaining to nuisance odors. It has recently been 
brought to EPA's attention that Part 200.1(d) of Title 6 of the NYCRR 
contains an odor provision that was erroneously omitted from EPA's 
prior action to remove such provisions from the SIP. Moreover, EPA has 
determined that the Act does not provide EPA with any specific 
authority to regulate odor. Therefore, EPA's prior SIP correction 
notice is now being amended to include the omitted odor provision, so 
that all odor provisions are effectively removed from the SIP, 
consistent with the purpose of the Act and as originally intended by 
EPA.
    EPA has determined that today's action falls under the ``good 
cause'' exemption in section 553(b)(3)(B) of the Administrative 
Procedure Act (APA) which, upon finding ``good cause,'' authorizes 
agencies to dispense with public participation where public notice and 
comment procedures are ``impracticable, unnecessary or contrary to the 
public interest.'' EPA has determined that public notice and comment 
for today's action is unnecessary because the intended result of EPA's 
November 27, 1998 rulemaking, which is encompassed by today's action, 
has previously been subject to a 60-day public notice and comment 
period, during which EPA did not receive any comments. Today's action 
merely amends the prior rulemaking to include a mistakenly omitted 
citation, ensuring that EPA's publicly noticed intention to remove all 
general duty provisions from the SIP is realized. In addition, EPA has 
determined that public notice and comment is unnecessary because, in 
light of the fact that EPA lacks any specific authority to regulate 
odor under the Act, no comments EPA might receive would result in any 
change in the outcome of today's action.
    EPA also finds that there is good cause under APA section 553(d)(3) 
for this amendment to become effective on the date of publication of 
this action. Section 553(d)(3) of the APA 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.'' 5 U.S.C. 553(d)(3). 
The purpose of the 30-day waiting period prescribed in APA section 
553(d)(3) is, among other things, to give affected parties a reasonable 
time to adjust their behavior and prepare before the final rule takes 
effect. Today's rule, however, does not create any new regulatory 
requirements such that affected parties would need time to prepare 
before the rule takes effect. Rather, today's rule merely corrects an 
error. For these reasons, EPA finds good cause under APA section 
553(d)(3) for this correction to become effective on the date of 
publication of this action.

II. New York SIP Correction

    On November 27, 1998 (63 FR 65557), EPA published a direct final 
rulemaking to remove all general duty provisions from the federally-
approved New York SIP that do not reasonably relate to attainment and 
maintenance of the NAAQS, including those pertaining to nuisance odors. 
Specifically, EPA removed part 211.2 of Title 6 of the New York Code 
Rules and Regulations (NYCRR), entitled ``Air Pollution Prohibited,'' 
from the federally-approved New York SIP. Part 211.2 prohibits, among 
other things, odors that ``unreasonably interfere with the comfortable 
enjoyment of life or property.'' It has recently been brought to EPA's 
attention that 6 NYCRR Part 200.1(d) contains an odor provision that 
EPA erroneously did not remove from the New York SIP. EPA has 
determined that the definition of ``air contaminant or air pollutant'' 
at 6 NYCRR 200.1(d), as it relates to ``odor,'' does not have a 
reasonable connection to the NAAQS and related air quality goals of the 
Clean Air Act (Act) and is not properly part of the SIP.
    EPA last approved 6 NYCRR 200.1(d) as part of the New York SIP on 
May 22, 2001. Part 200.1(d) provides the definition of ``air 
contaminant or air pollutant,'' which is defined as ``A chemical, dust, 
compound, fume, gas, mist, odor, smoke, vapor, pollen, or any 
combination thereof.'' Such a definition, as it specifically relates to 
``odor,'' is not designed to control or impact NAAQS pollutants such 
that EPA could rely on it as a NAAQS attainment and maintenance 
strategy. After it came to the attention of EPA that the definition of 
``air contaminant or air pollutant'' contained in Part 200.1(d) was not 
properly removed from the federally-approved New York SIP, EPA in turn 
brought the matter to the attention of the New York State Department of 
Environmental Conservation (NYSDEC). In a February 6, 2008 e-mail from 
NYSDEC to EPA, NYSDEC confirmed EPA's understanding that the definition 
as it relates to odor was not properly removed from the federally-
approved New York SIP in the November 27, 1998 EPA rulemaking action.
    EPA is now amending the November 27, 1998 SIP action. That action 
was done pursuant to section 110(k)(6) of the Act, to correct the New 
York SIP by removing general duty provision part 211.2 from the SIP, 
which includes a provision pertaining to odor. In today's action, EPA 
is reaffirming that such general duty provisions are not reasonably 
related to the NAAQS or other air quality goals of the Act, and were 
erroneously approved into the SIP. In addition, EPA has determined that 
it lacks any specific authority to regulate odor under the Act. Section 
110(k)(6) of the amended Act provides: ``Whenever the Administrator 
determines that the Administrator's action approving, disapproving, or 
promulgating any plan or plan revision (or part thereof), area 
designation, redesignation, classification or reclassification was in 
error, the Administrator may in the same manner as the approval, 
disapproval, or promulgation revise any such action as appropriate 
without requiring any further submission from the State. Such 
determination and the basis thereof shall be provided to the State and 
the public.'' It should be noted that section 110(k)(6) has also been 
used by EPA to delete an improperly approved odor provision from the 
Wyoming SIP. 61 FR 47058 (1996).
    Since the State of New York's Part 200.1(d) definition of ``air 
contaminant or air pollutant'' has no reasonable connection to the 
NAAQS-related air quality goals of the Act as it specifically relates 
to ``odor,'' EPA is amending its original action to include the removal 
of the word ``odor'' from the federally-approved definition. This 
amendment's effect is to complete the intended removal of all general 
duty provisions from the New York SIP, specifically those pertaining to 
odor.
    Nothing in this action should be construed as establishing a 
precedent for any future action related to corrections or revisions of 
SIPs. Each SIP correction or revision shall be considered separately in 
light of specific technical, economic and environmental factors, and in 
relation to relevant statutory and regulatory requirements.

III. Summary of EPA's Action

    EPA is taking action to amend its November 27, 1998 (63 FR 65557)

[[Page 21548]]

rulemaking action to correct the federally-approved New York SIP. 
Specifically, this action has the effect of removing the word ``odor'' 
from the definition of ``air contaminant or air pollutant'' at 6 NYCRR 
Part 200.1(d), so that ``odor'' is no longer part of the federally-
approved New York SIP.

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 is therefore not 
subject to review by the Office of Management and Budget. In addition, 
this action does not impose any enforceable duty or contain any 
unfunded mandate as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4), or require prior consultation with State 
officials as specified by Executive Order 12875 (58 FR 58093, October 
28, 1993), or involve special consideration of environmental justice 
related issues as required by Executive Order 12898 (59 FR 7629, 
February 16, 1994). Because this action is not subject to notice-and-
comment requirements under the Administrative Procedure Act or any 
other statute, it is not subject to the provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.)
    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 corrects an error, it 
does not impose any new requirements on sources or allow a state to 
avoid adopting or implementing other requirements, 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 and because the Agency does not have reason to 
believe that the rule concerns an environmental health risk or safety 
risk that may disproportionately affect children.
    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 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.).
    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 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 June 23, 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) of the Act.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Oxides of Nitrogen, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: April 4, 2008.
Alan J. Steinberg,
Regional Administrator, Region 2.

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 52.1679, is amended by revising the entry for part 200 to 
read as follows:


Sec.  52.1679  EPA-approved New York State regulations.

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                                             State
       New York State regulation        effective date   Latest EPA approval date             Comments
----------------------------------------------------------------------------------------------------------------
Title 6:
 
                                                  * * * * * * *
Part 200, General Provisions Sections          2/25/00  4/22/08. [FR page          The word odor is removed from
 200.1, 200.6, 200.7 and 200.9.                          citation].                 the Subpart 200.1(d)
                                                                                    definition of ``air
                                                                                    contaminant or air
                                                                                    pollutant''.
                                        ..............                             Redesignation of non-
                                                                                    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 21549]]

 
                                        ..............                             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.
 
                                                  * * * * * * *
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[FR Doc. E8-8657 Filed 4-21-08; 8:45 am]
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