
[Federal Register: May 28, 2010 (Volume 75, Number 103)]
[Rules and Regulations]               
[Page 29897-29899]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my10-8]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2010-0131, FRL-9146-4]

 
Approval and Promulgation of Implementation Plans; New York State 
Implementation Plan Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is approving a proposed revision to the New York State 
Implementation Plan (SIP) for ozone concerning the control of volatile 
organic compounds. The proposed SIP revision consists of amendments to 
Title 6 of the New York Codes, Rules and Regulations Part 235, 
``Consumer Products'' and Part 239, ``Portable Fuel Container Spillage 
Control.'' The intended effect of this action is to approve control 
strategies, required by the Clean Air Act, which will result in 
emission reductions that will help achieve attainment of the national 
ambient air quality standards for ozone.

DATES: Effective Date: This rule will be effective June 28, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2010-0131. 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 2 Office, Air Programs Branch, 290 Broadway, 
25th Floor, New York, NY 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 J. Wieber (wieber.kirk@epa.gov), 
Air Programs Branch, Environmental Protection Agency, 290 Broadway, 
25th Floor, New York, New York 10007-1866, (212) 637-3381.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the history and time frame for State Implementation Plan 
(SIP) submissions?
II. What was included in New York's submittals?
III. What comments did EPA receive in response to its proposal?
IV. What is EPA's conclusion?
V. Statutory and Executive Order Reviews

I. What is the history and time frame for State Implementation Plan 
(SIP) submissions?

    EPA's Phase 1 8-hour ozone implementation rule, published on April 
30, 2004 (69 FR 23951), referred to as the Phase 1 Rule, specifies that 
states must submit attainment demonstrations to EPA by no later than 
three years from the effective date of designation, that is, submit 
them by June 15, 2007.
    On November 9, 2005, EPA published Phase 2 of the 8-hour ozone 
implementation rule (70 FR 71612), referred to as the Phase 2 Rule, 
which addressed the control obligations that apply to areas designated 
nonattainment for the 8-hour national ambient air quality standard. 
Among other things, the Phase 1 and Phase 2 Rules outline the SIP 
requirements and deadlines for various requirements in areas designated 
as moderate nonattainment. For such areas, reasonably available control 
technology (RACT) plans were due by September 2006 (40 CFR 
51.912(a)(2)). The rules further require that modeling and attainment 
demonstrations, reasonable further progress plans, reasonably available 
control measure (RACM) analysis, projection year emission inventories, 
motor vehicle emissions budgets and contingency measures were all due 
by June 15, 2007 (40 CFR 51.908(a), and (c)).

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

    On October 21, 2009 and November 23, 2009, the New York State 
Department of Environmental Conservation (NYSDEC), submitted to EPA 
proposed revisions to the SIP which included State adopted revisions to 
two regulations which consist of, respectively, Title 6 of the New York 
Code of Rules and Regulations (6 NYCRR) Part 235, ``Consumer Products'' 
with a State effective date of October 15, 2009 and 6 NYCRR Part 239, 
``Portable Fuel Container Spillage Control'' with a State effective 
date of July 30, 2009. These revisions will provide volatile organic 
compound (VOC) emission reductions to address, in part, attainment of 
the 1997 8-hour ozone standard in the New York portion of the New York-
Northern New Jersey-Long Island, NY-NJ-CT nonattainment area which is 
composed of the five boroughs of New York City and the surrounding 
counties of Nassau, Suffolk, Westchester and Rockland. These revisions 
will also address, in part, the RACT and RACM requirements by providing 
VOC emission reductions statewide.

III. What comments did EPA receive in response to its proposal?

    On March 2, 2010 (75 FR 9373), EPA proposed to approve the proposed 
revisions to the New York SIP for ozone concerning the amendments to 6 
NYCRR Parts 235 and 239. The reader is referred to that proposal for a 
more detailed discussion of this action. No comments were received in 
response to that proposal.

IV. What is EPA's conclusion?

    EPA has evaluated New York's submittal for consistency with the 
Clean Air Act, EPA regulations, and EPA policy. EPA has determined that 
the revisions made to Part 235 and Part 239 of Title 6 of the New York 
Codes, Rules and Regulations, entitled, ``Consumer Products'' and 
``Portable Fuel Container Spillage Control,'' respectively, meet the

[[Page 29898]]

SIP revision requirements of the Clean Air Act with the following 
exceptions.
    The provisions related to innovative products exemptions in subpart 
239-5, variances in subpart 239-7 and alternate test methods in subpart 
239-8 do not explicitly require submission of an innovative product 
exemption, variance or alternative test method to EPA for approval into 
the SIP. Since the rule does not explicitly state that innovative 
product exemptions, variances or alternative test methods have to be 
submitted to EPA for approval in the SIP, there is the possibility that 
such exemptions, variances and alternatives will not be submitted for 
review and approval into the SIP and therefore will not, even though 
approved by the State, become federally enforceable. Failure to submit 
such exemptions, variances or alternatives to EPA for review and 
approval can lead to sources not understanding that the original rule 
still applies and can be enforced by the United States. In order to be 
federally enforceable, any exemption, variance or alternative test 
method approved by NYSDEC must be approved by EPA into the SIP.
    Therefore, EPA is approving the proposed revisions to Part 239, 
``Portable Fuel Container Spillage Control'' with a State effective 
date of July 30, 2009, as part of the New York SIP with the 
understanding that the specific application of provisions associated 
with innovative product exemptions, variances, and alternate test 
methods, pursuant to Part 239, must be submitted to EPA as SIP 
revisions. EPA is also approving the proposed revisions to Part 235, 
``Consumer Products'' with a State effective date of October 15, 2009, 
as part of the New York SIP.

V. Statutory and Executive Order Reviews

    Under the Clean Air 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 Clean Air Act. 
Accordingly, this 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 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 Clean Air 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.
    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).
    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 July 27, 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: April 27, 2010.
Judith A. Enck,
Regional Administrator, Region 2.

0
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)(114) to read 
as follows:


Sec.  52.1670  Identification of plans.

* * * * *
    (c) * * *
    (114) On October 21, 2009 and November 23, 2009, the New York State 
Department of Environmental Conservation (NYSDEC), submitted to EPA 
proposed revisions to the SIP concerning control strategies which will 
result in volatile organic compound emission reductions that will help 
achieve attainment of the national ambient air quality standards for 
ozone.
    (i) Incorporation by reference:
    (A) Title 6 of the New York Code of Rules and Regulations, Part 
235, ``Consumer Products,'' with an effective date of October 15, 2009 
and Part 239, ``Portable Fuel Container Spillage Control,'' with an 
effective date of July 30, 2009.
    (ii) Additional information:
    (A) Letters dated October 21, 2009 and November 23, 2009 from 
Assistant Commissioner J. Jared Snyder, NYSDEC, to George Pavlou, 
Acting Regional

[[Page 29899]]

Administrator, EPA Region 2, submitting the SIP revision for parts 235 
and 239 respectively.

0
3. In Sec.  52.1679, the table is amended by revising the entries for 
Title 6, Part 235 and Part 239 to read as follows:


Sec.  52.1679  EPA-approved New York State regulations.

----------------------------------------------------------------------------------------------------------------
                                    State
   New York State regulation      effective     Latest EPA approval                    Comments
                                     date              date
----------------------------------------------------------------------------------------------------------------

                                 ...........  ......................  ..........................................
Part 235, Consumer Products....     10/15/09  5/28/10 [Insert FR      ..........................................
                                               page citation].

                                 ...........  ......................  ..........................................
Part 239, Portable Fuel              7/30/09  5/28/10 [insert FR      The specific application of provisions
 Container Spillage Control.                   page citation].         associated with alternate test methods,
                                                                       variances and innovative products, must
                                                                       be submitted to EPA as SIP revisions.

                                 ...........  ......................  ..........................................
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2010-12917 Filed 5-27-10; 8:45 am]
BILLING CODE 6560-50-P

