[Federal Register Volume 62, Number 246 (Tuesday, December 23, 1997)]
[Rules and Regulations]
[Pages 67004-67006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33317]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region II Docket No. NY10-2-174; FRL-5934-7]
Approval and Promulgation of Implementation Plans; Revisions to
the New York State Implementation Plan for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency is approving a revision to
the New York State Implementation Plan (SIP) related to the control of
volatile organic compounds. The SIP revision consists of amendments to
Part 200, ``General Provisions,'' Part 201, ``Permits and
Certificates,'' Part 228, ``Surface Coating Processes,'' Part 229,
``Petroleum and Volatile Organic Liquid Storage,'' Part 233,
``Pharmaceutical and Cosmetic Manufacturing Processes,'' and Part 234,
``Graphic Arts.'' The amendments extend reasonably available control
technology rules to enlarged nonattainment areas and to all of New York
State which is part of the Northeast Ozone Transport Region as required
by the Clean Air Act. In addition, the amendments to Part 228 correct
deficiencies in New York's existing SIP, as required by the Clean Air
Act.
EFFECTIVE DATE: This rule is effective January 22, 1998.
ADDRESSES: Copies of the State submittal are available at the following
addresses for inspection during normal business hours:
Environmental Protection Agency, Region II Office, Air Programs
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.
New York State Department of Environmental Conservation, Division
of Air Resources, 50 Wolf Road, Albany, New York 12233.
Environmental Protection Agency, Air and Radiation Docket and
Information Center, Air Docket (6102), 401 M Street, S.W., Washington,
D.C. 20460.
FOR FURTHER INFORMATION CONTACT: Paul R. Truchan, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10278, (212) 637-4249.
SUPPLEMENTARY INFORMATION: On May 24, 1995, the Environmental
Protection Agency (EPA) published in the Federal Register (60 FR
27464) a Notice of Proposed Rulemaking (NPR) concerning a revision
to the New York State Implementation Plan (SIP) for ozone. The
State requested the SIP be revised to incorporate revised
regulations contained in Title 6 of the New York Code of Rules and
Regulations (NYCRR) Part 200, ``General Provisions,'' Part 201
``Permits and Certificates,'' Part 228, ``Surface Coating
Processes,'' Part 229 ``Petroleum and Volatile Organic Liquid
Storage and Transfer,'' Part 233, ``Pharmaceutical and Cosmetic
Manufacturing Processes,'' and Part 234, ``Graphic Arts.'' These
regulations were adopted on February 26, 1993, and became effective
on April 4, 1993.
Final Action
The revisions and the rationale for EPA's action were explained in
EPA's May 24, 1995 NPR and will not be restated here since EPA's final
action does not differ from that proposed in the NPR. No comments were
received on EPA's proposed action. EPA is approving Parts 200, 201,
228, 229, 233 and 234 because they are consistent with EPA policy and
guidance and also meet the requirements of sections 110, 182(a)(2)(A),
182(b)(2) and 184(b) of the Clean Air Act.
It should be noted that sections 228.3(e), 229.3(g) and (h),
233.3(h), and 234.3(f) permit the Commissioner of the New York State
Department of Environmental Conservation (NYSDEC) to accept a lesser
degree of control (alternative requirements) upon submission of
satisfactory technical and/or economic evidence that the source has
applied reasonably available control technology. These provisions also
require that any lesser degree of control must be submitted to the EPA
as a revision to the SIP. EPA views these provisions as giving the
Commissioner the authority to permit alternative requirements once they
have been submitted and approved by EPA as SIP revisions. EPA will not
recognize any variance or alternate requirement as being federally
enforceable until it is submitted to EPA by the State and is approved
by EPA as a source specific SIP revision.
Sections 229.4(a)(4), 233.4(b)(4) and 234.4(b)(1)(iv) permits the
Commissioner and EPA to accept
[[Page 67005]]
alternative analytical methods for determining compliance with emission
limits, contained in these Parts, when approved test methods are not
applicable. These provisions require that any alternate test method
must be approved in advance by the NYSDEC and EPA before they can be
used.
Section 228.5(c) permits the Commissioner to accept alternative
analytical methods for determining compliance with emission limits,
contained in part 228, when approved test methods are not applicable.
In such a case, EPA reserves its right to demonstrate the applicability
of Test Method 24 (40 CFR part 60, appendix A).
It should be noted that Part 201 contains the requirements for the
State's permit to construct and certificate to operate program. These
provisions are not intended to meet the Title V Permits Program
required by the Clean Air Act. New York has made a subsequent submittal
to EPA which addresses the Title V Permits Program. Also, Part 201
contains a previously adopted odor provision which EPA will act on in a
separate rulemaking.
SIP Deficiencies
The revisions to Parts 200 and 228 addressed several deficiencies
which EPA identified in a May 26, 1988 letter to former Governor Cuomo
and a January 30, 1991 letter to the NYSDEC Commissioner which found
the SIP substantially inadequate to attain the ozone and carbon
monoxide standards. With EPA's approval of these regulations, EPA is
making a finding that New York has now corrected all but one deficiency
which involves the test methods for determining capture efficiency for
VOC emission control systems.
EPA originally provided guidance on such test methods, but states
and industry inquired whether less costly and less time consuming
alternatives were possible. EPA began a study of capture efficiency
test methods and issued a moratorium on the need to correct any
deficient regulations until the study was complete. On February 7,
1995, EPA announced the completion of this study, ``Guidelines For
Determining Capture Efficiency,'' and required any states with this
deficiency to correct their VOC regulations. On March 20, 1995, EPA
notified New York that such corrections were now required. Because the
regulations which are the subject of this Federal Register notice were
proposed and adopted prior to March 20, 1995, EPA is approving the
regulations which are the subject of this rulemaking. However,
submission and approval of the capture efficiency test methods is still
necessary for full approval of New York's SIP. New York is in the
process of developing the necessary revisions to address capture
efficiency test methods. The next time the State submits a SIP revision
containing these regulations, EPA will require that they contain these
test methods.
As of February 27, 1995, EPA's moratorium on the use of such
methods ended and the methods in the February 27, 1995 guidance
document are considered by EPA to be accurate and credible. Should a
situation arise which involves capture efficiency, EPA will require
confirmation of capture efficiency values using the appropriate test
method.
Conclusion
EPA is approving Parts 200, 201, 228, 229, 233 and 234 as part of
the SIP. Sections 228.3(e)(1), 229.3(g)(1), 233.3(h)(1), and
234.3(f)(1) allow for alternative requirements provided they are
submitted to the EPA for approval as a source specific SIP revision.
EPA will not recognize any variance or alternate requirement as being
federally enforceable until it is submitted to EPA by the State and is
approved by EPA as a source specific SIP revision. Alternate analytical
methods for determining compliance with surface coating emission limits
pursuant to Section 228.5(c) are approved based on NYSDEC's agreement
that, for purposes of being federally enforceable, New York will submit
these alternate test methods to EPA for approval.
Nothing in this rule should be construed as permitting or allowing
or establishing a precedent for any future request for revision to any
SIP. Each request for revision to any SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
Administrative Requirements
Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
federal SIP approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-State relationship
under the CAA, preparation of a flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This federal action 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.
Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller
[[Page 67006]]
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
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 February 23, 1998. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: November 26, 1997.
Jeanne M. Fox,
Regional Administrator, Region II.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--New York
2. Section 52.1670 is amended by adding new paragraph (c)(93) to
read as follows:
Sec. 52.1670 Identification of plan.
* * * * *
(c) * * *
* * * * *
(93) Revisions to the New York State Implementation Plan (SIP) for
ozone concerning the control of volatile organic compounds from
petroleum and volatile organic compound storage and transfer, surface
coating and graphic arts sources, dated March 8, 1993 submitted by the
New York State Department of Environmental Conservation (NYSDEC).
(i) Incorporation by reference:
(A) Amendments to Title 6 of the New York Code of Rules and
Regulations (NYCRR) Part 200 ``General Provisions,'' Part 201 ``Permits
and Certificates,'' Part 228 ``Surface Coating Processes,'' and Part
229 ``Petroleum and Volatile Organic Liquid Storage and Transfer,''
Part 233 ``Pharmaceutical and Cosmetic Manufacturing Processes,'' and
Part 234 ``Graphic Arts,'' effective April 4, 1993.
3. Section 52.1679 is amended by revising the six entries for Parts
200, 201, 228, 229, 233 and 234 to the table in numerical order to read
as follows:
Sec. 52.1679 EPA--approved New York State regulations.
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State
New York State regulation effective Latest EPA approval Comments
date date
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Part 200, General Provisions........ 4/4/93 December 23, 1997, FR Redesignation of nonattainment areas
67006. to attainment areas (200.1(mm)) does
not relieve a source from compliance
with previously applicable
requirements as per letter of Nov.
13, 1981 from H. Hovey, NYSDEC.
Part 201, Permits and Certificates.. 4/4/93 December 23, 1997, FR .....................................
67006.
* * * * *
Part 228, Surface Coating Processes:
228.1-228.10.................... 4/4/93 December 23, 1997, FR SIP revisions submitted in accordance
67006. with Section 228.3(e)(1) are
effective only if approved by EPA.
Part 229, Petroleum and Volatile 4/4/93 December 23, 1997, FR SIP revisions submitted in accordance
Organic Liquid Storage and Transfer. 67006. with Section 229.3(g)(1) are
effective only if approved by EPA.
* * * * *
Part 233, Pharmaceutical and 4/4/93 December 23, 1997, FR SIP revisions submitted in accordance
Cosmetic Processes. 67006. with Section 223.3(h)(1) are
effective only if approved by EPA.
Part 234, Graphic Arts.............. 4/4/93 December 23, 1997, FR SIP revisions submitted in accordance
67006. with Section 234.3(f)(1) are
effective only if approved by EPA.
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[FR Doc. 97-33317 Filed 12-22-97; 8:45 am]
BILLING CODE 6560-50-P
