00-10521. Approval and Promulgation of Implementation Plans; Reasonably Available Control Technology for Oxides of Nitrogen for the State of New York

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving New York's revisions to the State Implementation Plan (SIP) for ozone. The State submitted this portion of the implementation plan to satisfy Clean Air Act (the Act) requirements for adoption of rules for the application of reasonably available control technology (RACT) for oxides of nitrogen (NO_X) in the entire State. The intended effect of this SIP revision is to reduce emissions of NO_X from combustion sources in order to help attain the national ambient air quality standard for ozone.

EFFECTIVE DATE:

This rule will be effective May 30, 2000.

ADDRESSES:

Copies of the state submittal(s) 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, SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

Ted Gardella, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10278, [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents

What Action is EPA Approving?

Why is EPA Approving This Action?

When did EPA Propose to Approve New York's SIP Revisions?

What are the Public's Comments on EPA's Proposal?

Where is Additional Information Available on EPA's Action?

Conclusion

Administrative Requirements

What Action Is EPA Approving?

The EPA is approving revisions to New York's ozone State Implementation Plan (SIP) which New York submitted to EPA on January 20, 1994 and April 29, 1999. The January 20, 1994 submittal includes New York's Subpart 227-2 entitled “Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NO_X).” The April 29, 1999 submittal includes amendments to Subpart 227-2. A separate EPA action approved other portions (Part 200, Part 201, Subpart 227-1 and Subpart 227-3) of the January 1994 and April 1999 submittals in a Federal Register document published at 65 FR 20905 on April 19, 2000.

Why Is EPA Approving This Action?

EPA is approving this action because it determined that New York's SIP revisions meet all requirements of the Clean Air Act (the Act), EPA guidelines and EPA policy thereby allowing implementation and enforcement of NO_X RACT requirements statewide.

When Did EPA Propose To Approve New York's SIP Revisions?

On January 5, 2000, EPA published in the Federal Register (65 FR 421) a Proposed Rulemaking to approve New York's regulations as a SIP revision and providing for a 30-day public comment period, which ended February 4, 2000.

What Are the Public's Comments on EPA's Proposal?

EPA received no public comments regarding the Proposed Rulemaking.

Where Is Additional Information Available on EPA's Action?

A detailed discussion of this action is available in the January 5, 2000 Proposed Rulemaking (65 FR 421). A Technical Support Document, prepared in support of the proposed rulemaking, contains the full description of New York's submittals and EPA's evaluation. A copy of the Technical Support Document is available upon request from the EPA Regional Office contact listed above in the ADDRESSES section.

Conclusion

EPA is approving the two SIP revisions that implement New York's NO_X RACT Program throughout the State for combustion sources, regardless of the nonattainment status. The first SIP revision, dated January 20, 1994, includes Subpart 227-2. The second SIP revision, dated April 29, 1999, includes amendments to Subpart 227-2. Therefore, this rule makes final the action proposed at 65 FR 421.

Administrative Requirements

Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order (E.O.) 12866, entitled “Regulatory Planning and Review.”

Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This final rule 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 approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

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.

This final rule will not have a significant impact on a substantial number of small entities because 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 create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of 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 Comptroller General

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 rule 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. This rule is not a “major” rule as defined by 5 U.S.C. 804(2).

National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

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 June 27, 2000. 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
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: March 23, 2000.

William J. Muszynski,

Acting Regional Administrator, Region 2.

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)(97) to read as follows:

§ 52.1670

Identification of plan.

* * * * *

(c) * * *

* * * * *

(97) Revisions to the State Implementation Plan submitted on January 20, 1994 and April 29, 1999 by the New York State Department of Environmental Conservation that establishes NO_X RACT requirements Statewide for combustion sources.

(i) Incorporation by reference:

(A) Regulation Subpart 227-2 of Title 6 of the New York Code of Rules and Regulations, entitled “Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NO_X)” adopted on January 19, 1994, and effective on February 18, 1994.

(B) Amendments to Subpart 227-2 adopted on January 12, 1999 and effective on March 5, 1999.

(ii) Additional information

(A) Letters from the New York State Department of Environmental Department Conservation dated January 20, 1994 and April 29, 1999, submitting the NO_X RACT Regulation and amendments as revisions to the New York State Implementation Plan for ozone.

(B) Letter from the New York State Department of Environmental Department Conservation dated April 27, 1999 submitting an analysis of mass NO_X emissions from generic sources throughout the State as well as resolution of other approvability issues.

3. In section 52.1679, the table is amended by revising the entry for Subpart 227-2 as follows:

§ 52.1679

EPA-approved New York State regulations.

New York State regulation	State effective date	Latest EPA approval date	Comments
*         *         *         *         *         *         *
Subpart 227-2, Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NOX)	3/5/99	[4/28/00 65 FR 24877].
*         *         *         *         *         *         *