Approval and Promulgation of Implementation Plans; New York Reasonably Available Control Technology and Reasonably Available Control Measures, 23640-23642 [2010-10416]
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Federal Register / Vol. 75, No. 85 / Tuesday, May 4, 2010 / Proposed Rules
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sroberts on DSKD5P82C1PROD with PROPOSALS
IV. Authority and Signature
This document was prepared under
the direction of David Michaels, PhD,
MPH, Assistant Secretary of Labor for
Occupational Safety and Health, U.S.
Department of Labor, pursuant to
sections 4, 6, and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C.
653, 655, 657), 29 CFR part 1911, and
Secretary’s Order 5–2007 (72 FR 31160).
Signed at Washington, DC, on April 12,
2010.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.
[FR Doc. 2010–10138 Filed 5–3–10; 8:45 am]
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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.
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:
• https://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
PO 00000
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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 https://
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 https://
www.regulations.gov or e-mail. The
https://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 https://
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 https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
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 https://
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Federal Register / Vol. 75, No. 85 / Tuesday, May 4, 2010 / Proposed Rules
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
sroberts on DSKD5P82C1PROD with PROPOSALS
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.
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 statewide 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
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23641
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 8hour 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
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Federal Register / Vol. 75, No. 85 / Tuesday, May 4, 2010 / Proposed Rules
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.
sroberts on DSKD5P82C1PROD with PROPOSALS
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
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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
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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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DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 67
[Docket ID FEMA–2010–0003; Internal
Agency Docket No. FEMA–B–1093]
Proposed Flood Elevation
Determinations
AGENCY: Federal Emergency
Management Agency, DHS.
ACTION: Proposed rule.
SUMMARY: Comments are requested on
the proposed Base (1% annual-chance)
Flood Elevations (BFEs) and proposed
BFE modifications for the communities
listed in the table below. The purpose
of this notice is to seek general
information and comment regarding the
proposed regulatory flood elevations for
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Agencies
[Federal Register Volume 75, Number 85 (Tuesday, May 4, 2010)]
[Proposed Rules]
[Pages 23640-23642]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-10416]
=======================================================================
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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.
-----------------------------------------------------------------------
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:
https://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
https://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 https://www.regulations.gov or e-mail. The https://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 https://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 https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the https://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 https://
[[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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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]
BILLING CODE 6560-50-P