
[Federal Register: May 4, 2010 (Volume 75, Number 85)]
[Proposed Rules]               
[Page 23640-23642]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04my10-29]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2009-0462, FRL-9144-6]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On August 25, 2009, the EPA proposed to disapprove portions of 
a proposed revision to the New York State Implementation Plan, 
submitted on February 8, 2008, that was intended to meet specific Clean 
Air Act requirements for attaining the 0.08 parts per million 8-hour 
ozone national ambient air quality standards. Specifically, EPA 
proposed to disapprove New York's reasonably available control measure 
analysis and New York's efforts to meet the reasonably available 
control technology requirements. Subsequent to that action, New York 
passed two additional rules and submitted them for review and inclusion 
in the State Implementation Plan and made additional commitments to 
meet the remaining reasonably available control technology and 
reasonably available control measure requirements. Therefore, in this 
action EPA is proposing a conditional approval of 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 proposing a 
conditional approval of 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: Comments must be received on or before June 3, 2010.

ADDRESSES: Submit your comments, identified by Docket Number EPA-R02-
OAR-2009-0462, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: Werner.Raymond@epa.gov.
     Fax: 212-637-3901.
     Mail: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
     Hand Delivery: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866. Such deliveries are only accepted 
during the Regional Office's normal hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30 excluding Federal holidays.
    Instructions: Direct your comments to Docket No. EPA-R02-OAR-2009-
0462. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters or any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. 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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://

[[Page 23641]]

www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, 
New York, New York 10007-1866. EPA requests, if at all possible, that 
you contact the individual listed in the FOR FURTHER INFORMATION 
CONTACT section to view the hard copy of the docket. You may view the 
hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kirk Wieber (wieber.kirk@epa.gov), 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 action is EPA proposing?
II. What was included in New York's SIP submittals?
III. What is the rationale for this proposed rulemaking 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 action is EPA proposing?

    The Environmental Protection Agency (EPA) has reviewed elements of 
New York's comprehensive proposed State Implementation Plan (SIP) 
revisions for the 0.08 parts per million (ppm) 8-hour ozone national 
ambient air quality standards (NAAQS or standard) \1\ along with other 
related Clean Air Act (Act) requirements necessary to ensure attainment 
of the standard. On August 25, 2009 (74 FR 42813), EPA proposed to 
disapprove 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 and its accompanying technical support document for a 
more detailed discussion of New York's RACT and RACM plans. 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 anticipated final action on the 
SIP submittals. Therefore, in this action, EPA is proposing a 
conditional approval of New York's RACT and RACM plans.
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    \1\ Unless otherwise specifically noted in this action, 
references to the 8-hour ozone standard are to the 0.08 ppm ozone 
standard promulgated in 1997.
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II. What was included in New York's SIP submittals?

    After completing the appropriate public notice and comment 
procedures, New York made a series of submittals in order to address 
the Act's 8-hour ozone attainment requirements. 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, 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, on July 15, 2009 
and September 30, 2009, the State adopted rules for Portable Fuel 
Containers and Consumer Products, respectively. 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 March 2, 2010 (75 FR 9373), EPA proposed to approve 
New York's Consumer Products and Portable Fuel Container rules and will 
take final action in the near future.
    On December 28, 2009, New York provided supplemental information 
intended to clarify the RFP and 2002 base year emissions inventory, 
projection year emissions and conformity budgets that were included in 
the February 8, 2008 ozone SIP submittals. EPA is reviewing this 
information and will make a decision in the near future as to whether 
these submissions satisfy the requirements of the Act.

III. What is the rationale for this proposed rulemaking 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. Based on this recent progress and on New 
York's commitment to submit adopted RACT/RACM rules by August 31, 2010, 
EPA is proposing a conditional approval of the RACT and RACM SIPs for 
the 8-hour ozone NAAQS. EPA has determined that New York will be able 
to meet this commitment because the State has already adopted rules for 
two of the source categories and recently proposed, and concluded 
public comment on, RACT/RACM provisions for all but one of the 
remaining source categories.

IV. What are EPA's conclusions?

    EPA is proposing a conditional approval of 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 proposing a conditional approval of the September 1, 
2006 New York RACT assessment 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 proposing a conditional approval of the RACT and RACM 
analyses for the 8-hour ozone NAAQS based on New York's letter 
committing

[[Page 23642]]

to submit adopted RACT/RACM rules for several source categories by 
August 31, 2010. EPA has determined that New York will be able to meet 
this commitment because the State has already adopted rules for two of 
the source categories and recently proposed, and concluded public 
comment on, RACT/RACM provisions for all but one 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 that EPA proposes to fully or conditionally approve 
within that time. 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

    Under the Act, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Act; and
     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 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Oxides of 
nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: April 23, 2010.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2010-10416 Filed 5-3-10; 8:45 am]
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