[Federal Register Volume 75, Number 141 (Friday, July 23, 2010)]
[Rules and Regulations]
[Pages 43066-43069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18074]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2009-0462, FRL-9178-5]


Approval and Promulgation of Implementation Plans; New York 
Reasonably Available Control Technology and Reasonably Available 
Control Measures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is conditionally approving the reasonably available 
control technology requirement which applies to the entire State of New 
York, including the New York portion of the New York-Northern New 
Jersey-Long Island, NY-NJ-CT and the Poughkeepsie 8-hour ozone moderate 
nonattainment areas. In addition, EPA is conditionally approving the 
reasonably available control measure analysis which applies to the New 
York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT 
8-hour ozone moderate nonattainment area.

DATES: Effective Date: This rule is effective on August 23, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2009-0462. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., 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 through 
http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region II Office, Air Programs Branch, 290 Broadway, 
25th Floor, New York, New York 10007-1866. This Docket Facility is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The Docket telephone number is 212-637-4249.

FOR FURTHER INFORMATION CONTACT: Kirk Wieber ([email protected]), Air 
Programs Branch, Environmental Protection Agency, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What comments did EPA receive in response to its proposal and 
what action is EPA taking in this final rule?
II. What was included in New York's SIP submittals?
III. What is the rationale for this approval action?
IV. What are EPA's conclusions?
V. What are the consequences if a final conditional approval is 
converted to a disapproval?
VI. Statutory and Executive Order Reviews

I. What comments did EPA receive in response to its proposal and what 
action is EPA taking in this final rule?

    On May 4, 2010 (75 FR 23640) the Environmental Protection Agency 
(EPA) proposed to conditionally approve New York's reasonably available 
control measure (RACM) analysis and New York's efforts to meet the 
reasonably available control technology (RACT) requirement. The reader 
is referred to that rulemaking action for a more detailed discussion of 
New York's RACT and RACM plans. EPA received no comments in response to 
the May 4, 2010 proposal. Therefore, in this action, EPA is 
conditionally approving New York's RACT and RACM plans.

II. What was included in New York's SIP submittals?

    On September 1, 2006, New York submitted its State-wide 8-hour 
ozone RACT SIP, which included a determination that many of the RACT 
rules currently contained in its SIP meet the RACT obligation for the 
8-hour standard. On February 8, 2008, New York submitted two 
comprehensive 8-hour ozone SIPs--one for the New York portion of the 
New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area, 
entitled, ``New York SIP for Ozone--Attainment Demonstration for New 
York Metro Area'' and one for the Poughkeepsie nonattainment area, 
entitled, ``New York SIP for Ozone--Attainment Demonstration for 
Poughkeepsie, NY Area.'' The submittals included the 2002 base year 
emissions inventory,

[[Page 43067]]

projection year emissions, attainment demonstrations, Reasonable 
Further Progress (RFP) plans, RACT analysis, RACM analysis, contingency 
measures, new source review and on-road motor vehicle emission budgets. 
These proposed SIP revisions were subject to notice and comment by the 
public and the State addressed the comments received on the proposed 
SIP revisions before adopting the plans and submitting them for EPA 
review and rulemaking action.
    Included in New York's February 8, 2008 8-hour Ozone SIP submittal 
was a list of additional control measures identified by the State as 
RACT and RACM. The State committed to adopt additional control measures 
applicable to the following source categories: Adhesives and Sealants, 
Consumer Products, Portable Fuel Containers, Graphic Arts, Asphalt 
Formulation, Asphalt Paving Production, Portland Cement Plants, Glass 
Manufacturing, and NOx RACT.
    Of the source categories identified by New York, the State adopted 
rules for Portable Fuel Containers on July 15, 2009, and for Consumer 
Products on September 30, 2009. New York submitted the Consumer 
Products rule (on October 21, 2009) and the Portable Fuel Container 
rule (on November 23, 2009) to EPA, for review and approval into the 
SIP. On May 28, 2010 (75 FR 29897), EPA approved New York's Consumer 
Products and Portable Fuel Container rules.
    On April 15, 2010, New York submitted a letter committing to adopt 
the necessary control measures that will satisfy the RACT and RACM 
requirement by August 31, 2010, which is no more than one year from our 
final action on the RACT and RACM SIP submittals.

III. What is the rationale for this approval action?

    On August 25, 2009 (74 FR 42813), EPA proposed to disapprove New 
York's RACT and RACM plans. In that proposed rulemaking action, EPA 
made suggestions for how New York could correct the identified 
deficiencies and strengthen the 8-hour ozone SIP (see 74 FR 42819). As 
discussed in Section II, New York adopted and submitted for inclusion 
in the SIP two of the control measures it had adopted. On December 23, 
2009, New York proposed adoption of all but one of the remaining 
additional control measures that it committed to adopt as satisfying 
the RACT and RACM requirement. On April 21, 2010, New York proposed 
adoption of that one remaining control measure. Based on this recent 
progress and on New York's April 15, 2010 letter committing to submit 
adopted RACT/RACM rules by August 31, 2010, EPA proposed a conditional 
approval of the RACT and RACM SIPs for the 8-hour ozone NAAQS on May 4, 
2010. EPA has determined that New York should be able to meet this 
commitment because the State has already adopted rules for two of the 
source categories and proposed RACT/RACM provisions for all of the 
remaining source categories.

IV. What are EPA's conclusions?

    EPA is conditionally approving the moderate area RACM analysis for 
the New York portion of the New York-Northern New Jersey-Long Island, 
NY-NJ-CT 8-hour ozone moderate nonattainment area as presented in the 
February 8, 2008 ``New York SIP for Ozone--Attainment Demonstration for 
New York Metro Area'' SIP submittal.
    EPA is also conditionally approving the September 1, 2006 New York 
RACT analysis SIP submittal, supplemented on February 8, 2008 and 
September 16, 2008, which applies to the entire State and to the New 
York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT 
and the Poughkeepsie 8-hour ozone moderate nonattainment areas.
    EPA is conditionally approving the RACT and RACM analyses for the 
8-hour ozone NAAQS based on New York's letter committing to submit 
adopted RACT/RACM rules for several source categories by August 31, 
2010. EPA has determined that New York should be able to meet this 
commitment because the State has already adopted rules for two of the 
source categories and proposed RACT/RACM provisions for all of the 
remaining source categories.
    Under section 110(k)(4) of the Act, EPA may conditionally approve a 
plan based on a commitment from the State to adopt specific enforceable 
measures by a date certain, but not later than 1 year from the date of 
approval. If EPA conditionally approves the commitment in a final 
rulemaking action, the State must meet its commitment to adopt the 
identified regulations. If the State fails to do so, this action will 
become a disapproval upon the State's failure to meet its commitment. 
EPA will notify the State by letter that this action has occurred. If 
the conditional approval converts to a disapproval, the commitment will 
no longer be a part of the approved New York SIP. Upon notification to 
the State that the conditional approval has converted to a disapproval, 
EPA will publish a notice in the Federal Register notifying the public 
that the conditional approval automatically converted to a disapproval. 
If EPA disapproves the RACT and RACM SIP submittals, such action will 
start a sanctions and FIP clock (see section V). If the State meets its 
commitment, within the applicable time frame, the conditionally 
approved submission will remain a part of the SIP until EPA takes final 
action approving or disapproving the RACT and RACM submittals. If EPA 
approves the submittals, the RACT and RACM analyses will be fully 
approved into the SIP in their entirety.

V. What are the consequences if a final conditional approval is 
converted to a disapproval?

    The Act provides for the imposition of sanctions and the 
promulgation of a Federal Implementation Plan (FIP) if States fail to 
correct any deficiencies identified by EPA in a final disapproval 
action within certain timeframes.

A. What are the Act's provisions for sanctions?

    If EPA disapproves a required SIP submittal or component of a SIP 
submittal, section 179(a) provides for the imposition of sanctions 
unless the deficiency is corrected within 18 months of the final 
rulemaking of disapproval. The first sanction would apply 18 months 
after EPA disapproves the SIP submittal if a State fails to make the 
required submittal. Under EPA's sanctions regulations, 40 CFR 52.31, 
the first sanction would be 2:1 offsets for sources subject to the new 
source review requirements under section 173 of the Act. If the State 
has still failed to submit a SIP for which EPA proposes full or 
conditional approval 6 months after the first sanction is imposed, the 
second sanction will apply. The second sanction is a limitation on the 
receipt of Federal highway funds. EPA also has authority under section 
110(m) to sanction a broader area.

B. What Federal implementation plan provisions apply if a state fails 
to submit an approvable plan?

    In addition to sanctions, if EPA finds that a State failed to 
submit the required SIP revision or disapproves the required SIP 
revision, or a portion thereof, EPA must promulgate a FIP no later than 
2 years from the date of the finding if the deficiency has not been 
corrected.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR

[[Page 43068]]

51735, October 4, 1993) and is therefore not subject to review under 
the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this SIP conditional approval under section 110 and subchapter 
I, part D of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply conditionally approves 
certain State requirements for inclusion into the SIP. Burden is 
defined at 5 CFR 1320.3(b).

C. 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. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This SIP 
conditional approval under section 110 and subchapter I, part D of the 
Clean Air Act will not in-and-of itself create any new requirements but 
simply disapproves certain State requirements for inclusion into the 
SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the Clean Air Act prescribes that various consequences (e.g., higher 
offset requirements) may or will flow from this conditional approval 
does not mean that EPA either can or must conduct a regulatory 
flexibility analysis for this action. Therefore, this action will not 
have a significant economic impact on a substantial number of small 
entities.
    We continue to be interested in the potential impacts of this final 
rule on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or Tribal governments or the private 
sector. EPA has determined that the final conditional approval action 
does not include a Federal mandate that may result in estimated costs 
of $100 million or more to either State, local, or Tribal governments 
in the aggregate, or to the private sector. This action conditionally 
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.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), 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.''
    This action does not have federalism implications. It 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 conditionally 
approves certain State requirements for inclusion into the SIP and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is conditionally approving would not apply in Indian country 
located in the State, and EPA notes that it will not impose substantial 
direct costs on Tribal governments or preempt Tribal law. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it is not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997). This SIP conditional approval under section 110 
and subchapter I, part D of the Clean Air Act will not in-and-of itself 
create any new regulations but simply conditionally approves certain 
State requirements for inclusion into the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This final rule is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    The EPA believes this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act.

[[Page 43069]]

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this final action. In reviewing SIP submissions, EPA's role 
is to approve or disapprove State choices, based on the criteria of the 
Clean Air Act. Accordingly, this action merely conditionally approves 
certain State requirements for inclusion into the SIP under section 110 
and subchapter I, part D of the Clean Air Act and will not in-and-of 
itself create any new requirements. Accordingly, it does not provide 
EPA with the discretionary authority to address, as appropriate, 
disproportionate human health or environmental effects, using 
practicable and legally permissible methods, under Executive Order 
12898.

K. Congressional Review Act

    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 action 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).

L. 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 September 21, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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: July 13, 2010.
Judith A. Enck,
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 52.1683 is amended by adding new paragraph (k) to read as 
follows:


52.1683  Control strategy: Ozone.

* * * * *
    (k)(1) The September 1, 2006 New York reasonably available control 
technology (RACT) analysis plan submittal, supplemented on February 8, 
2008 and September 16, 2008, which applies to the entire State and to 
the New York portion of the New York-Northern New Jersey-Long Island, 
NY-NJ-CT and the Poughkeepsie 8-hour ozone moderate nonattainment areas 
is conditionally approved.
    (2) The moderate area reasonably available control measure (RACM) 
analysis for the New York portion of the New York-Northern New Jersey-
Long Island, NY-NJ-CT 8-hour ozone moderate nonattainment area as 
presented in the February 8, 2008 ``New York SIP for Ozone--Attainment 
Demonstration for New York Metro Area'' submittal is conditionally 
approved.

[FR Doc. 2010-18074 Filed 7-22-10; 8:45 am]
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